Submission - Interim Report for comment by Independent Review Committee

Submissions of Aboriginal and Torres Strait Islander Social Justice Commissioner on Interim Report for comment by Independent Review Committee

1. OVERVIEW

1.1 Introduction

In September 2001, the Western Australian ('WA') Government established a review of the Project Development Approvals System ('Review') to be undertaken by the Independent Review Committee ('Committee'). The Committee is chaired by a former Commonwealth public servant and comprises five other members: three from resource/development companies, a member of a WA environmental group and an officer from a Native Title Representative Body ('NTRB'). The Committee published an Interim Report for comment in January 2002 [1] ('Report').

The Aboriginal and Torres Strait Islander Social Justice Commissioner ('Commissioner') has statutory functions to promote discussion and awareness of human rights in relation to Aboriginal and Torres Strait Islander people, to report to the Commonwealth Government on the enjoyment and exercise of human rights by Indigenous Australians, and to recommend where necessary on action that should be taken to ensure these rights are observed. [2] These submissions are made pursuant to the Commissioner's functions. A summary of the recommendations arising from these submissions is contained in section 5.

1.2 Contents

These submissions first outline the human rights principles relevant to the Review, and then focus on the particular areas in the Report of concern from a human rights perspective. The document is divided into the following sections:

2 RELEVANT HUMAN RIGHTS PRINCIPLES
2.1 Relevance of human rights to State government
2.2 Equality and non-discrimination
2.3 Development and self-determination
2.4 Maintenance of Indigenous culture
3 ROLE OF INDIGENOUS PEOPLE IN THE REVIEW
3.1 Scope for Committee's addressing Indigenous issues
3.2 Extent of Indigenous involvement
3.3 Use of case examples
3.4 Committee's disposition to Indigenous rights
4 ANALYSIS OF NATIVE TITLE SYSTEM and ABORIGINAL HERITAGE
4.1 Native Title Act and procedures
4.2 Croker Island case
4.3 Interaction between native title and other development approvals
4.4 Resourcing and negotiating outcomes
5 RECOMMENDATIONS
5.1 Report inaccuracies or misdescriptions
5.2 The way forward

2. RELEVANT HUMAN RIGHTS PRINCIPLES

The human rights principles set out below are drawn mainly from international treaties including the International Convention on the Elimination of All Forms of Racial Discrimination [3] ('ICERD') and the International Covenants on Economic, Social and Cultural Rights [4] ('ICESCR') and on Civil and Political Rights [5] ('ICCPR'). Australia voluntarily assumed these treaty obligations and has participated in the development of other international human rights standards, through the United Nations ('UN') processes and world conferences. Some of these standards have since become norms of international law [6]. These norms together with the various treaties [7] and other international standards provide principles relevant to the formulation of government policies and legislation which affects Indigenous people.

2.1 Relevance of human rights to State government

Government officials and processes in WA are required, under international and domestic law, to act in a manner consistent with human rights.

At international law, pursuant to the Vienna Convention on the Law of Treaties, Australia has agreed that its internal laws, such as laws enacted by State Governments, cannot justify failure to perform a treaty.[8] In addition, under ICERD, Australia has a positive obligation to ensure all public authorities and institutions do not act in a racially discriminatory manner.[9] The Universal Declaration of Human Rights ('UDHR') also applies human rights norms to 'every organ of society'. [10]

Australian domestic law supports the proposition that states and territories should exercise their powers and functions consistently with international human rights principles. There is a long-established legal presumption that a statute should be interpreted and applied, as far as its language permits, so that it is not inconsistent with the comity of nations and established rules of international law. [11] Where the language of a statute permits a construction of the statute that is consistent with international human rights law, the WA Government should act in accordance with Australia's human rights treaty obligations by adopting that construction. [12]

The Racial Discrimination Act 1975 (Clth) ('RDA') was enacted pursuant to the Commonwealth's external affairs power and implements Australia's international obligations under ICERD. This legislation prohibits States from enacting legislation or exercising its powers in a racially discriminatory manner. In addition, the Native Title Act 1993 (Clth) ('NTA') explicitly confirms that the RDA applies to the performance of functions or exercise of powers conferred by the NTA [13], including those conferred to State governments.

2.2 Equality and non-discrimination

The principle of non-discrimination, and more specifically the principle of racial non-discrimination, is recognised in every major international human rights treaty, convention and declaration. It is recognised and protected in the following instruments of which Australia is a signatory.

UDHR, Article 2;
ICCPR, Article 2;
ICERD, Article 2;
Convention on the Rights of the Child, Article 2;
ICESCR, Article 2.

Under these instruments Australia is required to protect the right to equality, including equal protection of property interests, without distinction as to race, colour or ethnic origin. [14] Native title was recognised in 1992 in the High Court decision of Mabo [15] and has its origins in the traditions and laws of the claimant group. In order to achieve equal protection of native title rights, the government must adopt measures that protect the unique nature of those rights. This requires adopting measures that are different to those used to protect non-Indigenous interests. [16] This is the principle of 'relative' or 'substantive' equality, [17] which is acknowledged by the Australian government as the international standard required under ICERD. [18]

ICERD also requires that racial groups be given equal participation in public life. [19] The Committee on the Elimination of Racial Discrimination, ('CERD Committee') which assists in monitoring and implementing ICERD, has interpreted this to mean that Indigenous peoples have equal rights to effective participation in public life and that no decisions directly relating to their rights and interests should be taken without their informed consent. [20] The CERD Committee has criticised the process by which the amendments to the NTA were enacted, noting the failure of the Australian government to obtain the informed consent of Indigenous people to legislation which affects their rights. Effective participation of Indigenous people is also required for the formulation of policies which affects the human rights of Indigenous people. [21]

2.3 Development and self-determination

The UN General Assembly has repeatedly emphasised the need for development issues to be addressed by governments.[22] It has confirmed that all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. The General Assembly noted the 'right to development' implies the full realization of the right of peoples to self-determination, including the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. [23]

'Development' in this context does not simply mean 'economic growth', but is better understood as 'sustainable human development' [24], which requires creating an environment in which people can develop their full potential and lead productive, creative lives in accordance with their needs and interests.[25] The UN General Assembly recently emphasised the link between development and human rights, in outlining a program towards sustainable development, noting the interdependence of economic development, social development and environmental protection. [26] It is necessary for governments to establish legal, political, economic and social environments that enable the realization of the right to development. [27]

Self-determination, through article one of ICCPR and ICESCR, enshrines a peoples' right to freely determine their political status and freely pursue economic, social and cultural development.[28] The literal meaning of self-determination is that a people determine issues for itself. The Human Rights Committee, meeting in July 2000 to discuss Australia's performance under ICCPR, made it clear that self-determination is a right to which Indigenous people are entitled. Its observation on Australia with respect to this right is of concern:

With respect to article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term 'self-determination' the Government of the State party prefers terms such as 'self-management' and 'self-empowerment' to express domestically the principle of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard. [29]

2.4 Maintenance of Indigenous culture

Australia, in ratifying the ICCPR, agreed that members of minority groups are entitled to maintain and enjoy a distinct culture. [30] Where land is important to the sustenance of a culture, as it is with Indigenous culture, then the right to enjoyment of culture requires the protection of territories upon which that culture is founded.[31] If such territories are to be used for developments, then Indigenous peoples' right to enjoy their culture requires that, in the absence of agreement, the territories should not be subject to use in any way that has more than a 'limited impact' on the Indigenous way of life.[32] For Indigenous rights to be enjoyed, a government may need to ensure that Indigenous people can effectively participate in decisions that affect them. [33]

The right to enjoyment of culture should not be interpreted as a 'frozen' right limited to when the culture was supposedly 'pure' or 'traditional'. Nor is it restricted only to the traditional means of livelihood but includes a right to social and cultural evolution and economic development.[34] This is particularly relevant to development issues, with ICERD requiring that countries should 'provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics'. [35]

The lack of equal protection of Indigenous culture and Indigenous property rights under the NTA has been criticised by three UN committees. [36]

3 ROLE OF INDIGENOUS PEOPLE IN THE REVIEW

The central issue addressed in these submissions is the role of Indigenous people in the Review as evidenced by the Report. Under this heading, I firstly consider (in section 3.1) the Review's scope or potential to address Indigenous issues as determined by its establishment and terms of reference. Then I turn to consider the extent of Indigenous involvement in the Review, which can be measured in three ways: the actual participation of Indigenous parties (section 3.2), the Report's use of case examples (3.3) and the Committee's disposition to Indigenous rights (3.4).

3.1 Scope for Committee to address Indigenous issues

The WA Government set terms of reference specifying an outcome for the Committee:

A system of government decision making which is co-ordinated and integrated, clear and unambiguous, which is balanced between community and developer needs and which will lead to Western Australia being the global location of choice for project development. [37]

My concern in relation to this outcome is that it gives insufficient weight to the protection of fundamental human rights. While the phrase 'balanced between community and developer needs' indicates that community concerns will be taken into account in the final decision-making system, it does not ensure that human rights, particularly those of Indigenous people, will be protected in the final outcome. Australia's international obligation under human rights treaties is not to balance the rights of Indigenous people to have their culture and property rights protected against the needs or interests of developers. Rather it is to ensure that Indigenous culture is enjoyed and maintained and that Indigenous property rights are protected to the same extent as non-Indigenous property rights. Where Indigenous rights are extinguished or impaired in order to secure benefits to non-Indigenous interests, this is racially discriminatory and breaches ICERD, ICCPR and ICESCR.

A further issue of concern in the review outcome is that, by stipulating that the purpose of the decision-making system is to 'lead to Western Australia being the global location of choice for project development' a preference for development, even where this may be in conflict with the human rights of those affected by such developments, is built into the review process. Of course there is no inherent conflict between development and human rights principles. Many businesses have developed human rights policies [38] and incorporate human rights standards in their choice of where to locate or how to manage projects. However, where companies fail to adhere to these standards voluntarily, it is incumbent on governments to ensure, through policy and legislation, that the country's international human rights obligations are met. The Review offers an opportunity for the Western Australian government to address these issues at the policy level and introduce corporate responsibility benchmarks for companies seeking to develop projects in Western Australia. In this way a true balance between community and developer needs, one that is consistent with Australia's human rights obligations, will be achieved.

The Review's scope requires the Committee to 'consider all elements of government decision-making' relevant to development projects, specifically including government decisions on Aboriginal heritage, land tenure and native title practices.[39] The Committee's chair characterises the task: 'to review the processes operating in the Western Australian public sector for approving proposals for development projects in the State'. [40] Both these statements encompass a process broad enough to address Indigenous human rights within the Committee's work and final report. These submissions now review how Indigenous human rights have featured in the Committee's progress.

3.2 Extent of Indigenous involvement

Although the review was publicised, submissions invited and over 55 submissions received, not one submission was from an Indigenous organisation. [41]

The lack of Indigenous input is, of itself, a matter of concern. As explained in section two of these submissions, various human rights standards indicate that effective Indigenous participation is essential in decision making that will affect their traditional lands and lifestyles. I recommend the Committee ensure that its deliberations are well publicised to Indigenous organisations and people who may be affected by those deliberations, and that those parties have every opportunity to effectively participate in the Committee's work. Within the scope of 'Indigenous organisations and people', I particularly mention NTRBs, the Aboriginal Legal Service of Western Australia, ATSIC, all registered native title claims and Aboriginal corporations operating in WA.

It is widely accepted that many of the above organisations are chronically under-funded and thus unable to devote scarce resources to government policy formulation. This is particularly the case with NTRBs whose statutory functions are primarily service delivery and yet have a wealth of experience in relation to the impact of developments on Indigenous people. In such circumstances, and in order to achieve effective participation, the Review Committee should arrange to meet with relevant people and take oral submissions where necessary. Alternatively funding should be provided to ensure the views of such groups and people are taken into account.

3.3 Use of case examples

The Committee uses 15 case studies to demonstrate discussions in the Report. Five case studies feature interaction of Indigenous people and the approval process. Every one of these five case studies presents a negative outcome as a result of the interaction. Not one case study is given of Indigenous involvement leading to a positive outcome. There was also no case study assessing the detrimental effect on Indigenous parties of particular development approvals.[42] The selection of case studies is gives an impression that the Committee has not taken sufficient account of an Indigenous perspective relevant to its work

I recommend the Committee examine further case studies, and re-assess the studies already included in the Report, to incorporate in its work the effect of WA's development approval processes on Indigenous people.

3.4 Committee disposition to Indigenous rights

The Committee's 'brief' is wide enough to incorporate human rights and an Indigenous perspective of the development approval process. In my view, however, the Committee has adopted a development oriented perspective and has not addressed human rights principles relevant to Indigenous people. Even where the status and role of Indigenous people is centrally important, for example in discussing the operation of the Native Title Act and Aboriginal heritage, this is not reflected in the Report. The sections below outline the areas of concern that have lead to this analysis of the Committee's approach.

(a) One of the more striking examples of the Committee's approach to Indigenous rights is the Report's statement:

For an international investor, used to be being able to easily obtain land titles on an unencumbered basis, the present requirement on the proponent to negotiate with Aboriginal groups that only have untested claims to hold native title is met with a mixture of amazement and disbelief. …As land access is crucial to project planning and funding, this lack of ability by the State to provide unencumbered land is a major weakness in efforts to attract investment …[I]t is not sensible to allow obstacles to be placed before the owner of a resource, as that owner may have alternatives elsewhere, where land is not an issue. [43]

This statement does not accord with the principle that Indigenous people should effectively participate in decisions affecting their traditional lands and lifestyles. It also suggests the Committee has some difficulty or reluctance in understanding that historical practices of land management and development approval, which ignored any Indigenous interests, are no longer appropriate.

The legal fiction that the 'Crown' owns 'vacant' land, or terra nullius, was officially discredited ten years ago. [44] A Joint Parliamentary Committee recently heard of the change of mind-set this requires for land use and planning:

[P]lanners need to change their mind-set. They used to operate on the basis that greenfields were vacant and available for chopping up for land development and that nobody else had an interest in it, other than the Crown. That is now no longer the case. Planners have to shift the paradigm away from that. Land is no longer vacant. In fact, I do not use the term 'vacant crown land' any more. I use the term 'unallocated', because that is what crowns do. They allocate interest in land, and they do that on the basis of radical title, not beneficial title, in most cases, which means that native title may still exist. [45]

I am particularly concerned by the Committee's view that '[I]t is not sensible to allow obstacles to be placed before the owner of a resource, as that owner may have alternatives elsewhere, where land is not an issue'.[46] In the context of the Report, 'obstacles' refers to 'Aboriginal…claims to hold native title'. [47] In many cases, 'claims to native title' are an approximation or attempt by the Australian legal system to recognise and accommodate Indigenous law and customs connected with a particular area of land. [48] These laws and customs usually have no 'alternative elsewhere' - the beliefs, practices or sites are intrinsic to a specific piece of land. It is racially discriminatory for the Committee to prefer a non-Indigenous interest (development) that 'may have other alternatives elsewhere' to the detriment of Indigenous interests in a particular area of land. I cannot emphasise enough that the Committee should re-assess its approach on such matters.

(b) In my view, the Committee's emphasis on the need for 'unencumbered land' has caused a failure to take Indigenous rights into account in the consideration of compulsory acquisition / extinguishment of native title rights. Essentially, the Committee proceeds on the basis that where land is needed for development, relevant procedures should be followed leading to native title rights being appropriated or extinguished. [49]

Compulsory acquisition processes carry with them the extinguishment of native title rights.[50] This prevents any future recognition of native title rights even where the non-Indigenous interest (which was created through the compulsory acquisition process) subsequently ends. Given that Australian law dictates that validly created non-Indigenous interests prevail over native title rights,[51] there is little justification for the permanent extinguishment of native title rights. Such an approach is contrary to Australia's international human rights obligations. An approach more in accordance with human rights principles is for the non-extinguishment principle [52] to be used in relation to all interests created in land that may be covered by a native title claim. This will not affect the future interest that government creates (because, provided it is created validly, the future interest prevails over native title rights [53]). Non-extinguishment simply allows Indigenous rights in that country to be recognised after the non-Indigenous interest has expired.

The native title situation in Western Australia is seen as generally unsatisfactory by Aboriginals, proponents and the State. The length of time and complexity in obtaining title to, or over, land where native title exists is a significant present weakness. [54]

I have already noted the Committee received no Indigenous submissions, which raises some question as to how the Committee formed its analysis of 'Aboriginals' views on the native title situation in WA. An additional matter, however, is the issue of what it is that 'Aboriginals' see as 'generally unsatisfactory' about the native title system in WA.

The Report indicates that the Aboriginal criticism is 'the length of time and complexity in obtaining title…over land where native title exists is a…weakness'. If the word 'title' included both Indigenous title (a native title determination, either from agreement or litigation) and non-Indigenous title (eg. mineral tenements), the Committee's statement is probably correct - most parties involved in native title proceedings would prefer a quicker resolution than currently occurs. However, the Committee's consideration of 'title' here encompasses only non-Indigenous title like mineral tenements [55], and it is wrong for the Committee to suggest that Aboriginal people consider the native title system suffers from weakness because of the complexity and delay in non-Indigenous title being secured over native title land. The overwhelming view of Aboriginal people is that Indigenous interests are poorly incorporated into the Government's land management and dealings and that Indigenous rights are not protected strongly enough. [56] The Committee may wish to reconsider its analysis of Aboriginal views of the native title situation in WA.

4. ANALYSIS OF NATIVE TITLE SYSTEM and ABORIGINAL HERITAGE

4.1 Native Title Act and procedures

The rationale for native title, which is not addressed in the Committee's work, is that it is a recognition of Indigenous laws and customs that pre-existed the acquisition of sovereignty in Australia. [57] The first of the NTA's four main objects is 'to provide for the recognition and protection of native title'. [58] The NTA was introduced to protect Indigenous interests and establish a system for developing their co-existence with non-Indigenous rights.

The Report's discussion of native title notes '[T]he then State Government tried twice to bring down its own legislation. The first was seen by many as a direct challenge to the Native Title Act and was tested in the High Court…' [59]. The Committee's use of the phrase 'seen by many as' suggests some doubt over the succeeding statement (that the State Government directly challenged the Native Title Act). There need be no doubt. The WA Government sued the Commonwealth government seeking court orders that 'the Native Title Act is outside the legislative powers of the Commonwealth, and invalid'. [60] The WA Parliament passed laws extinguishing all native title in WA [61] (the WA laws were later ruled invalid). Unless the Committee is suggesting there are alternative views on whether the WA Government directly challenged the Native Title Act, views which if held at all are baseless, there is little reason why the qualification 'seen by many as' should be included.

In various places the Report discusses the concepts and workings of the NTA. Some of the Report's content suggests the Committee may have misunderstood aspects of the NTA's operation, and I address each of these below to assist the Committee in considering these points.

(a) The Report states 'Before a grant, either conditional or unconditional, can be made the application must be put into the NTA processes, either into the expedited or the right to negotiate (RTN) processes' [62] . This is wrong - a proposed grant need only comply with the NTA's future act processes (including the expedited and RTN processes) where it may affect native title. [63]

There are numerous instances where non-Indigenous interests can be granted without following the expedited or RTN processes. The most obvious example is where the grant is to be made over land where native title cannot be recognised (eg. freehold land, which includes the majority of land in south western WA), but there are also numerous other types of interests that can be granted without following the RTN or expedited processes.[64] It is inaccurate to give the impression that before any grant is made by Government, it must follow the RTN or expedited process under the NTA. I suggest the Report be amended to reflect this.

(b) The Committee presents native title as if it always involves intra-Indigenous disputes and the main issue is to establish who are the appropriate Indigenous people to 'speak' for an area of country. [65] This is not the case: there are substantial areas of land in WA where there is no dispute as to who are the relevant traditional owners of the land. [66]

It appears, however, that the Committee's emphasis on 'overlaps' leads it to conceive of 'native title issues' as mainly requiring resolution of who are the recognised native title holders for an area before proceeding with proposed developments. [67] Such an approach fails to appreciate that Indigenous people have rights both as native title claimants (before any Court decision has been made in relation to the land) [68] and rights after native title has been determined (with the Court's orders identifying the relevant land, group of people, and rights [69]). Examples of native title determinations in WA include Mirriuwung Gajerrong [70], Spinifex People [71] and Tjurabalan People [72]. In these cases, the Court recognised the right of the Aboriginal party 'to make decisions about the use and enjoyment of the land'. [73] On land where the Court recognises these types of rights, future developments will still need to follow the 'right to negotiate' and other relevant NTA procedures.

(c) In several places, the Report indicates that Indigenous people have, at best, a right of notification or consultation in relation to proposed developments offshore. [74]

This is not correct. The NTA specifies that native title interests offshore have the same procedural rights as they would have in relation to a proposed development on the assumption that the claimants 'instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests'. [75] Exactly what this phrase requires is not clear [76]. In certain circumstances, notification or consultation may be sufficient to satisfy the procedural rights for offshore development. [77] However the NTA also indicates that native title holders may have procedural rights greater than mere notification and that these rights must be observed. [78]

(d) The NTA's expedited procedure has been mis-construed, by both the Committee and the Department of Mineral and Petroleum Resrouces ('MPR'), in a manner that favours development over non-Indigenous interests.

The NTA allows government to use the expedited procedure only when it considers [79] that the proposed activity is not likely to (a) interfere directly with the community or social activities, (b) interfere with significant areas or sites, and (c) involve major disturbance of land. [80] Contrary to this process, MPR uses the expedited procedure in relation to any mineral tenement other than mining leases. [81] Cases from the National Native Title Tribunal ('Tribunal') show that MPR's policy is flawed because numerous non-mining lease tenements have been adjudged inappropriate for the expedited procedure. [82] What MPR should be doing is following the NTA by considering tenement applications and determining whether the expedited procedure is justified in each case (and such justification is where the tenement only allows activities [83] that are not likely to interfere with the relevant community and sites and are not likely to be a major disturbance to the particular land).

I recommend the Committee carefully consider the proper operation of the expedited procedure and re-examine its endorsement of the Technical Taskforce's approach. [84] This would accord with the Committee's understanding that 'the State Government has an explicit policy of working within the Commonwealth statutory regime rather than to pursue its own native title scheme'. [85]

(e) The Report discusses the 'backlog' of mining tenements since the NTA commenced in 1994. [86] What is not reflected in the Report, however, is that most of the 'backlog' exists not because of the actions or objections of Indigenous people, and not because of NTA procedures, but because of MPR's actions. The Technical Taskforce study [87], to which the Report refers, shows that over two thirds of the 'backlog' comprise tenement applications that have not been submitted to the native title process. [88]

Neither the Report, nor the Technical Taskforce, explain why there is such a large delay in submitting tenement applications to the native title process. Certainly, the NTA's procedures established in 1994 (and amended in 1998) require MPR to address extra matters before granting a tenement, but the time periods for this processing are not prohibitive. [89] The Technical Taskforce indicates the 'backlog' of applications withheld from the native title process includes tenement applications over several years. [90] Clearly, as has now happened, where a delay in granting tenements builds up, this increases pressure to find some way to enable those tenements to be granted, and in such a situation proposals to limit Indigenous rights attract greater support. This is a matter the Committee should carefully consider in finalising any recommendations in relation to tenement processing or endorsing the Technical Taskforce's recommendations.

4.2 Croker Island case

The Report's analysis of the impact of the High Court's decision in Yarmirr -v- Commonwealth [91] ('Croker Island' case) is inaccurate in several ways. The Committee's views are essentially repetitions [92] of its description of the case on page 40 of the Report:

Offshore, the recent High Court decision in relation to the Croker Island Case has potentially made things more complex for offshore mineral and petroleum exploration and development as Aboriginal people may have the right to be consulted as native title is a coexisting, rather than an exclusive title, but the ramifications of the decision are yet to be fully revealed. Before this decision it was generally believed that offshore activities fell outside the NTA.

The High Court decision in Croker Island has not changed the situation 'for offshore mineral and petroleum exploration and development'. From January 1994, the NTA permitted native title claims to cover offshore areas and specified that Indigenous people have procedural rights in relation to these claims. [93] The initial decision in Croker Island was given in September 1998, legally recognising that Indigenous people have native title rights in the sea. [94] The High Court's decision in October 2001 simply confirmed the trial judge's decision - there is no basis for the Committee's statement that before the High Court's decision 'it was generally believed that offshore activities fell outside the NTA'.

An additional issue, however, is that the Committee followed the Technical Taskforce [95] in adopting a limited analysis of the Croker Island decision. The Committee states offshore native title is a coexisting, rather than an exclusive title. This may not be correct in all respects - the relevant part of the High Court's Croker Island decision was that the particular claims made by the applicants (namely they had a right to exclude all persons from the area) could not succeed because of public rights to fish and navigate and the international right of innocent passage.[96] I agree the High Court's reasoning suggests native title rights to exclusive possession of the sea cannot be recognised by Australian courts. However, the decision does not mean the only native title rights that can be recognised in the sea must be co-existing: exclusive aspects of native title sea rights that are compatible with public rights (fishing, navigation or innocent passage) were not ruled out by Croker Island. Take, for example, the exclusive rights often included in native title claims to 'use and enjoy resources of the area' or 'trade in resources of the area'. Provided these rights do not impinge on public rights of fishing, navigation, or innocent passage, there is no reason from Croker Island why these native title rights cannot be recognised.[97] To further illustrate the exclusive / non-exclusive distinction it may be useful to consider a non-native title example: when a company gains an exploration licence over land in WA, the company does not have exclusive possession of that land, [98] but it does have various exclusive rights in relation to that land .[99]

I recommend the Committee should re-consider its analysis of the Croker Island decision and native title rights offshore.

4.3 Interaction between native title and other development approvals

The Committee encourages a 'whole of government' approach, [100] with the benefits this brings in ensuring government decision-making across all agencies is integrated and consistent. The Committee repeatedly emphasised the importance of resolving native title issues by agreement, [101] an approach which, when based on the free and informed consent of both parties, is consistent with human rights principles. The problem is that when the Report is read as a whole, there is a contradiction: the resolution of native title issues by agreement (and the Committee's endorsement of the Wand Report [102]) does not correspond with the Committee's recommendations decreasing protection of native title rights. [103] A whole of government approach should be seeking to incorporate native title and effective Indigenous participation into government decision making. This is in contrast to the Committee's approach, which will encourage a development approval process operating with little reference to, and in conflict with, separate government processes dealing with 'native title issues'.

(a) WA's Aboriginal heritage system

One of the issues considered by the Committee is the role of the Aboriginal Heritage Act 1972 (WA) ('AH Act') in development approvals. The Committee is aware of anomalies in the AH Act's protection of Indigenous heritage - the Report specifically acknowledges the racially discriminatory denial of Indigenous rights under the AH Act. [104] In addition, the Committee may wish to note the AH Act is based on a limited conception of heritage and provides little enforcement of heritage protection. [105] It is of concern, therefore, to find the Report:

(i) makes no specific recommendation on improving Indigenous rights under the AH Act (by, at least, granting them equal status to non-Indigenous rights); and

(ii) recommends restricting Indigenous rights in other arenas [106] leaving their 'protection' under the discriminatory AH Act.

If this outcome (namely removal of Indigenous rights under various laws leaving reliance only on heritage laws that discriminate against Indigenous people) arose as a result of an oversight, [107] the Committee may wish to alter its approach in any final report. However, if the Committee intends such an outcome, this should be fully explained because it is contrary to human rights principles.

The Committee's recommendations in relation to Aboriginal heritage also addressed the issue of heritage surveys. The Committee proposes that once a survey is completed, this should be sufficient reference for all future activity on that land.[108] There are practical and human rights difficulties with such a suggestion. Often a mining tenement covers a large area of land and so the company and relevant Indigenous group agree to survey only the proposed work, resulting in that particular proposal being cleared or modified depending on the location and importance of sites. This enables the proposed work to commence with minimum time, cost, and intrusion into Indigenous culture. To expect an entire tenement or area of land to be 'audited' for Indigenous sites, regardless of the proposed work at that time:

may be impossible because traditional owners are likely to have different concerns depending on what activity is being proposed on the land (aerial exploration or surveying may need no, or only few, areas to be avoided - whereas an intensive drilling program or construction of a mine will raise different heritage concerns); and
is inconsistent with developing human rights standards on Indigenous culture (which emphasise the right of Indigenous peoples to maintain and develop their own cultures and knowledge systems, and Indigenous peoples' ownership and custody of their heritage as collective, permanent and inalienable ).[109]

(b) Environmental assessment

The Committee notes the recent inclusion of Indigenous heritage in Government environmental assessments as reinforcing the need for proponents to address Indigenous heritage issues prior to commencing development.[110] The Committee wants this situation changed by removing Indigenous heritage as a matter considered in environmental assessments. [111] As already noted, there are deficiencies in the AH Act, one of the main ones being that a proponent can legally commence development without taking any measures in relation to Indigenous heritage . [112] Given the AH Act's shortcomings, Government procedures that reinforce the need for proponents to address Indigenous heritage prior to commencing development are to be encouraged. I urge the Committee against suggesting changes to those procedures.

The Committee recommends that the Mining Act 1978 (WA) be amended so the Mining Warden no longer has power to hear public interest objections to the proposed grant of mineral tenements.[113] The Committee does not recommend these public interest objections be entertained in any alternative arena as a substitution for their removal from the Warden's jurisdiction. [114] Public interest considerations can include issues such as Indigenous rights and environmental concerns (the latter are not a matter addressed in these submissions). I draw the Committee's attention to its call for decisions adverse to development needing to be addressed by 'some mechanism where the refusal…[to allow development] can be tested in a fair and open manner' [115], which contradicts the Committee's recommendation that Indigenous and environmental matters be removed from being addressed by the Mining Warden.

The Report considered the approval process in Queensland and New South Wales, but made no mention of the Queensland's Statewide Model Indigenous Land Use Agreement [116] ('Model ILUA'). This document, representing a cooperative approach between the government and Indigenous people in Queensland, acts as a basis for negotiations over exploration on native title-claimed land. Where a company and claimant group wish to use the terms of the Model ILUA to govern the relations between them, they can agree to that, thereby saving time and money. However, if the parties wish to conduct their own negotiations, they can do so ignoring the Model ILUA. An approach similar to that of the Queensland Model ILUA could be adopted to assist in relation to processing exploration tenements in WA. That is, a generally agreed heritage arrangement (either on a regional or Statewide basis) could exist as a baseline: where a claimant group's concerns in relation to an expedited procedure tenement application were satisfied by the regional agreement there would be no need to object, but where a group's concerns were not met by the regional agreement, they could still use the objection procedure.

4.4 Resourcing and negotiated outcomes

The Committee acknowledges that NTRB's are inadequately resourced for the functions required of them. [117] This has been noted in various reports [118] and a Commonwealth parliamentary inquiry[119] . Little, however, has been done. The Committee states that the lack of funding has been acknowledged and refers to additional funding, [120] but the Committee fails to note this additional funding is not received by NTRB's to fulfil their functions or that other main institutions in the native title system received disproportionately greater funding increases. [121]

Quite correctly, the issue of NTRB funding is not a main issue for the Committee. However, it is of critical relevance to the Committee's work in the following respect: if NTRB's are unable to properly perform their functions then little progress can be expected on any matter dealing with native title (including future act negotiations, resolving disputes between native title claimants, required notifications to native title claimants, certifications to permit arrangements to be registered with the Tribunal, or advice and representation of claimants). [122] NTRB's, which assist 89% of all native title claims in Australia, [123] are the primary institution to ensure effective input from native title parties.

The Committee commends an approach to resolve native title issues by agreement rather than through litigation. [124] However the lack of NTRB funding, together with disproportionately greater funding for other institutions involved in the native title system, prohibits native title parties from being able to effectively progress agreement with government and developers over native title issues. [125] The inability of NTRB's to progress agreed resolutions because of funding shortages has been noted by developers [126] and the Commonwealth Parliament, with their resultant calls for increased funding to NTRB's. If the Committee genuinely embraces reaching agreed resolutions of native title issues, it may wish to consider making a specific recommendation on increased funding to NTRB's to allow them to perform their functions under the NTA.

5. RECOMMENDATIONS

The main thrust of these submissions is that the Committee must re-consider its whole approach to Indigenous involvement in the approval system. The Report states 'The proposals put forward seek to ensure that…native title, planning and other checks and balances that serve the public interests are not reduced'.[127] The Committee's statement here does not correlate with the overall Report: these submissions have pointed out various ways in which the Report's recommendations will reduce Indigenous rights.

The Committee may wish to consider the draft report recently released by the Mining, Minerals and Sustainable Development Project in Australia. [128] This report demonstrates the changing perception of how mining and minerals development should occur in Australia:

Companies … need to demonstrate that operations are established with the prior informed consent of the local indigenous communities. This means fully informing traditional owners on the implications of projects - and, where necessary, enabling those owners to obtain independent advice - and resisting the temptation to proceed by creeping, incremental concession. [129]

5.1 Report inaccuracies or misdescriptions

These submissions have noted various parts of the Report that are wrong or inclined to give an incorrect impression of native title rights. I summarise these points below (references in brackets are to the relevant sections of these submissions in which the point is discussed).

(a) The Committee should amend its statement that all grants must be put into the NTA processes to show that a proposed grant need only comply with the NTA's future act processes where it may affect native title (section 4.1(a)).

(b) The Report's discussion of offshore native title rights is inaccurate and should be corrected (4.1(c)).

(c) The Committee, if it is going to discuss the issue of a tenement 'backlog' following the NTA's introduction, should explain why the backlog has occurred (4.1(e)).

(d) The Report's discussion of the Croker Island case is inaccurate and should be re-assessed (4.2).

(e) The Committee should not recommend removal of protections for Aboriginal heritage (currently held under Commonwealth heritage laws, WA Mining Act objections, and WA environmental assessment procedures) - recommendations that have the effect of increasing dependency on the AH Act (4.3(a)-(c)).

5.2 The way forward

In addition to suggesting particular changes to the Report, this submission also suggests a number of principles that, if adopted, will change the Committee's approach to Indigenous issues such as native title and Aboriginal heritage. These areas can be summarised as follows.

(a) The Committee should re-assess its approach to incorporate human rights and an Indigenous perspective into the development approval process. Such an approach would require the Committee to reassess its view of Indigenous participation as an 'encumbrance' to the development process (3.4(a)&(b)). It would also require the Committee to re- examine its case studies in order to take account of the effect of WA's development approval processes on Indigenous people (3.3).

(b) The Committee should conceptualise native title as a pre-existing and unique interest in land originating in the laws and traditions of Indigenous people (4.1). Any land management system, including the development approval system, needs to address the different cultural bases of native title from that of non-Indigenous property interests, ensuring that both are equally protected and enjoyed.

Because native title is not conceptualised in this way, native title is not adequately addressed in the Review. Rather than appreciating problems, such as overlapping claims and identification of parties, as issues of cultural difference, the Committee's approach appears to identify these and other native title issues as encumbrances to development (3.4, 4.1). Consequently the Committee prefers to direct native title out of the Review to other processes, such as heritage processes or NTA processes. In so doing, the Committee ignores, considers irrelevant or misconstrues the processes to which native title has been relegated. In order to redress these consequences I suggest the Committee re-assess the:

role and use of the NTA's expedited procedure (4.1(d));
consequence of limiting Indigenous heritage to the inadequate protection of the AH Act (4.3); and
reasons for mining tenement backlog in Western Australia (4.1(e)).

(c) The Committee should consider recommending that 'corporate responsibility' standards be incorporated into the development approval process (3.1).

(d) The non-extinguishment principle should be adopted in relation to all interests created in land that may be covered by a native title claim (3.4(b)). Accordingly the Committee should recommend against the use of compulsory acquisition of native title as a way of progressing developments.

(e) The Committee should consider the approach of the Queensland Statewide Model Indigenous Land Use Agreement and consider its relevance for WA (4.3(c)).

(f) The Committee, if it wishes to endorse an approach to resolve native title issues by agreement rather than litigation, should recommend increased funding for NTRB's. (4.4).

(g) The Committee should ensure effective participation in the Review process. Where necessary this may require the Committee to approach relevant Indigenous organisations for input, or fund these organisations to make a submission (3.2).

1. Independent Review Committee, Review of the Project Development Approvals System: Interim Report for comment, Government of Western Australia, Perth, 2002 ('Report').

2. s46C, Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth) and s209, Native Title Act 1993 (Commonwealth) ('NTA').

3. Australia joined this treaty in September 1975.

4. Australia joined in December 1975.

5. Australia joined in August 1980.

6. Including the Universal Declaration of Human Rights ('UDHR') which was passed, by consensus, by the United Nations General Assembly in 1948. The UDHR specifies basic human rights principles which were, or have since become, recognised in international law.

7. The NTA's preamble specifically confirms Australia's 'acceptance of the Universal Declaration of Human Rights'. The Australian Government has acknowledged the UDHR to be 'the foundation of the international human rights system', Department of Foreign Affairs and Trade, Human Rights Manual, Commonwealth of Australia, 1998 (2nd ed), p1.

8. The human rights treaties identified in this paper are implemented with the monitoring and assistance of treaty bodies, formed from among the countries that have joined the relevant treaty. Guidance on a treaty's interpretation and requirements can be taken from comments and observations of the treaty bodies. These treaty bodies include the: Committee on the Elimination of Racial Discrimination (CERD) which operates under ICERD, the Committee on Economic, Social and Cultural Rights which operates under ICESCR, and the Human Rights Committee which operates under ICCPR.

9. 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty' Vienna Convention on the Law of Treaties, to which Australia is a signatory, prohibits a country from claiming that its internal law justifies failure to perform a treaty', art 27 of Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) AUSTRALIAN TREATY SERIES 1974 No 2.

10. Under ICERD, Australia agreed to 'Undertakes to engage in no act or practice of racial discrimination and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. [Article 2.1(a)…and]…Shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination [Article 6].
The CERD Committee has further stated explained, 'Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories…', CERD Concluding Observations on Australia, UN Doc: A/49/18, para 542.

11. '[E]very individual and every organ of society … shall strive to promote respect for these rights and freedoms and … to secure their universal and effective recognition and observance', Preamble to the UDHR which was passed by consensus by the UN General Assembly in 1948 (emphasis added).
The UDHR is binding on all members of the UN, through their acceptance of the UN Charter, and is in any event part of customary international law. '[T]he fact that there is no direct way to enforce in a tribunal the exhortation in the Universal Declaration aimed at "organs of society", does not by itself remove its potential binding effect. The lack of a procedure to enforce a right should not be confused with whether the substantive right or obligation exists', International Council on Human Rights Policy, Beyond Voluntarism: Human rights and the developing international legal obligations of companies, Geneva, 2002, p59.

12. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.

13. Parliament is intended to legislate in accordance with its international obligations (Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J). Where there is ambiguity, statutes should be interpreted in ways that accord with the obligations of Australia under an international treaty (Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ). Note that in recent cases the High Court has indicated that a narrow conception of ambiguity is to be rejected: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally A Simpson and G Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at 208; J Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

14. s7(2), NTA.

15.Article 17 of the UDHR, states 'Everyone has the right to own property alone as well as in association with others'. Article 5 of ICERD provides: '…States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the…right to own property alone as well as in association with others'.

16. Mabo v Queensland (1992) 166 CLR 186.

17. The Human Rights Committee, in relation to minority and Indigenous rights under ICCPR explained that countries joining ICCPR must take steps to protect those rights: 'With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples... The enjoyment of those rights may require positive legal measures of protection', General Comment 23 The rights of minorities, 8 April 1994, para 7.
Judge Tanaka of the International Court of Justice stated, in the South West Africa case, that 'The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to the individual, concrete circumstances, but it means the relative equality, namely the principles to treat equally what are equal and unequally what are unequal... To treat unequal matters differently according to their inequality is not only permitted but required', (1966) ICJ Rep 6, pp303-305.

18. The requirement of substantive equality in relation to the protection of Indigenous peoples' property rights has been further clarified by CERD, which explained that countries in ICERD must 'protect the rights of Indigenous peoples to own, develop, control and use their communal land, territories and resources' CERD General Recommendation XXXIII The rights of indigenous Peoples, 18 August 1997, para 5. This is contained in the UNGA document Report of the Committee on the Elimination of Racial Discrimination (UN document A/52/18), 26 September 1997, annex V.

19. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000 Human Rights and Equal Opportunity Commission, Sydney, 2001, p171.

20. ICERD article 5(c) emphasises the need for countries to 'guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of...Political rights, in particular the right...to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service'.

21. CERD General Recommendation XXIII The rights of indigenous Peoples, op.cit., para 4(d).

22. 'Concern is expressed at the [Australian government's] unsatisfactory response to… [previous decisions] of the Committee and at the continuing risk of further impairment of the rights of Australia's indigenous communities. The Committee reaffirms all aspects of its decisions 2 (54) and 2 (55) and reiterates its recommendation that the State party should ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5 (c) of the Convention [ICERD] and General Recommendation XXIII of the Committee, which stresses the importance of securing the "informed consent" of indigenous peoples. The Committee recommends to the State party to provide full information on this issue in the next periodic report', Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia (UN document CERD/C/304/Add.101), 9 April 2000, para 9.

23. The UDHR states 'Everyone is entitled to a social…order in which the rights and freedoms set forth in this declaration can be fully realized' article 28. In 1986, the General Assembly passed the Declaration on the Right to Development (UN document A/RES/41/128), 4 December 1986. The United States of America was the only country who voted against the declaration, but seven years later (at the 1993 World Conference on Human Rights), the USA joined with all governments, including Australia, in 'reaffirm[ing] the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights', Vienna Declaration and Program of Action (UN document A/CONF.157/23), 12 July 1993, article 10.

24. Article 1 of the Declaration on the Right to Development, op.cit.

25. Hamm, B., 'A Human Rights Approach to Development' (2001) Human Rights Quarterly Vol 23, No 4 (November 2001), John Hopkins University Press, p1005 at 1010.

26. UN Development Programme, Human Development Report 2001: Making new technologies work for human development Oxford University Press, New York, 2001, p9.

27. The UNGA resolution states 'Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development ... [R]espect for all human rights and fundamental freedoms, including the right to development, transparent and accountable governance in all sectors of society, as well as effective participation by civil society, are also an essential part of the necessary foundation for the realization of social and people-centred sustainable development' (UN document A/RES/s-19/2), 19 September 1997, para 23.

28. See also Rio Declaration on Environment and Development (12 August 1992) UN document A/CONF.151/26 (Vol.I), principles 1 & 3; Declaration on the Right to Development (4 December 1986) UN document A/RES/41/128, articles 1-3, 5, 6, 8; and Declaration on Social Progress and Development (11 December 1969) UN General Assembly resolution 2542 (XXIV), principles 1, 2 and 5.

29. These statements are drawn from the conclusions of the most recent meeting of Open-Ended Working Group on the Right to Development which reports to the UN Commission on Human Rights (UN document E/CN.4/2001/26), 20 March 2001, para's 179-180. The Chairperson, who drafted the conclusions, noted the Australian government was not able to join the emerging consensus on some elements of the text. The Australian Government, along with other countries, provided submissions which are annexed to the Working Group's report (op cit, Annex III, para's 27-41), noting its disagreement with the Chairpersons' summary of the meeting.

30. The first article of both covenants states '1. All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence'.

31. UN Doc CCPR/CO/69/AUS, para9.

32. ICCPR's article 27 states 'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.

33. '[C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples', Human Rights Committee General Comment 23 The rights of minorities, op.cit., para 7. The report Indigenous people and their relationship to land, accepted by the UN's Sub-Commission on Human Rights, notes 'States must respect and protect the special relationships that indigenous peoples have to lands, territories, and resources…', (UN document E/CN.4/Sub.2/2001/21), 11 June 2001, para 144(g). The Sub-Commission referred the report to the UN Commission on Human Rights for its consideration in 2002: (UN document E/CN.4/SUB.2/DEC/2001/109), 15 August 2001.

34. 'A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27', comments of Human Rights Committee in Länsman v Finland (UN document CCPR/C/52/D/511/1992), 8 November 1994, para 9.4.

35. In its General Comment on article 27 of the ICCPR, the Human Rights Committee stated 'With regard to the exercise of the cultural rights protected under article 27…The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them', General Comment 23 The rights of minorities, 8 April 1994, para 7.

36. 'The right to enjoy one's culture...has to be placed in context... [ICCPR] article 27 does not only protect traditional areas of livelihood of national minorities. ...[Cultural practices] may have adapted their methods...over the years and [now be] practiced...with the help of modern technology [which] does not prevent them from invoking article 27 of the Covenant', finding of the Human Rights Committee in Länsman v Finland, op.cit., para 9.3.

37. CERD General Recommendation XXXIII Indigenous Peoples, op.cit., para 4(c).

38. The 1998 amendments to the NTA (in particular the provisions on validation, confirmation, primary production and right to negotiate) have been criticised by three treaty bodies: Committee on the Elimination of Racial Discrimination (see UN document CERD/C/304/Add.101, 24 March 2000), the Human Rights Committee (UN document CCPR/CO/69/AUS, 28 July 2000), and the Committee on Economic, Social and Cultural Rights (UN document E/C.12/1/Add.50, 1 September 2000). See also International Review of Indigenous issues in 2000: Australia available on Human Rights and Equal Opportunity Commission web-site <www.humanrights.gov.au/social_justice/nt_issues/index.html> (accessed 16 December 2001).

39. Report, p123 (emphasis added).

40. 'BHP Billiton endorses the principles set out in the Universal Declaration of Human Rights and will support the fundamental human rights of…communities in which we operate. BHP Billiton has full responsibility for meeting human rights standards for those operations over which it has control', BHP Billiton, Guide to Business Conduct, 2001, p12.

41. The Rio Tinto mining group 'have adopted a formal policy on human rights based on our support for the United Nation's Universal Declaration of Human Rights', Rio Tinto website <http://www.riotinto.com/community/humanRights/default.asp> accessed 1 November 2001.

42.Report, pp123-124.

43. Letter from Committee to Mr Clive Brown, Minister for State Development, 11 January 2002 - copy in second page of Report.

44. Appendix 3 of the Report (pp125-126) lists the submissions made.

45. Although I know little of the situation in Western Australia, I note four possible 'case studies' the Committee may wish to research to better understand the impact that development approval processes may have on Indigenous people.

(a) Noonkanbah is a pastoral station in the Kimberley region. The pastoral lease was purchased for the local Aboriginal Yungngora community in 1976. After its purchase, and as part of the resource development and exploration in the Kimberley region in the late 1970's, various mineral tenements were sought by companies over Noonkanbah station. One company wanted to conduct oil exploration drilling in an area assessed by the WA Government's Aboriginal Sites Department as containing significant Aboriginal sites. The community did not want the exploration work to occur. The disagreement attracted considerable attention and the Government sought to negotiate a resolution, but the community remained opposed to the exploration work. The Government then used police to forcibly remove Aboriginal people seeking to protect their land from the drilling. The Government's explanation of the main reasons for its involvement in Noonkanbah show a preference for non-Indigenous rights over Indigenous rights:
Firstly, because the lawful right to explore on Noonkanbah was unlawfully obstructed.
Secondly, because the search for petroleum was and is of national importance, and the national interest demands that it must not be unreasonably obstructed.
Thirdly, because obstruction at Noonkanbah was clearly intended to become a precedent for further obstruction over vast areas of the State that would have gravely disrupted essential exploration, as well as denying many people their lawful rights.
Fourthly, because the obstruction was carried out with the clear intention of challenging, and even replacing, the lawful authority of elected government.
Finally, because the community of Western Australia clearly wanted lawful order maintained on an even-handed basis, without privilege for any - on grounds of race, or for any other reason.
The drilling went ahead, but with unfavourable results, and no further development occurred.
[Information from The Drilling at Noonkanbah: A Report to Parliament by the Premier of Western Australia, incorporated into Hansard by leave of the Legislative Assembly, Hansard, Assembly, Friday, 28 November 1980, 4282; Hawke, S & Gallagher, M, Noonkanbah: Whose land, Whose law Fremantle Arts Centre Press, Perth, 1989; and Ritter, D, Charles Court and the fulcrum of Noonkanbah, paper delivered at "Sir Charles Court in Western Australian history: a conference on his life and politics", Curtin University of Technology, 20 September 2001]
(b) In the late 1980's, the government was seeking to develop land on the Swan River in Perth. Although some of the land had previously been used by the Swan Brewery, half of the land on which the development was to occur was unallocated Crown land: Bropho -v- Western Australia (1990) 171 CLR 1 ('Bropho') at para 3 of decision of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ ('Majority'). Indigenous sites were located on this land, which had been registered under the Aboriginal Heritage Act 1971 (WA). The Heritage Act had been passed by the Western Australian parliament to protect and preserve Indigenous places and objects and made it an offence for a person to disturb such a site. The Government accepted its proposed work would disturb Aboriginal sites: 'It is common ground that that conduct [proposed development] would, but for the claimed inapplicability to the Crown of the relevant statutory provisions, have contravened the provisions of s.17 of the Act [making it an offence to disturb Aboriginal sites]', Bropho, Majority paragraph 8. However the Government considered the Heritage Act didn't apply to it and commenced the development. The High Court ruled against the Government, stating that, just as the AH Act applied to businesses and individuals, the Government also had to comply with it: Bropho, Majority paragraph 23.
(c) In the early 1990's the Government negotiated with the Karijini Aboriginal Corporation over joint management of the Karijini National Park, which is located near Tom Price. The Government agreed to Karijini Aboriginal Corporation being involved in jointly managing the park and both parties commenced work toward a new draft management plan. At the same time, the Government was negotiating with Hamersley Iron over mining on land in the park. In November 1990, the Government decided to excise land from the middle of the park (effectively creating two parks) to allow a mine and infrastructure corridor to be developed, with only those parts not required for development to be liable to control under park management. The Government decision subsequently formed the Reserves and Land Revestment Act (No 2) 1990 (WA), s5. In February 1992, the Parliament passed an Act stating that the mine and infrastructure area would not need to comply with WA's Aboriginal heritage laws: 'The Aboriginal Heritage Act 1972 does not apply to any place that is on land described in Part 1 of Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3, or to any object situated on or under any of that land [land for the mine and associated infrastructure]', Aboriginal Heritage (Marandoo) Act 1992 (WA), s3.
[Information from Western Australia: The 'Award Winning Model' in Woenne-Green, S and o'rs, Competing Interests Aboriginal Participation in National Parks and Conservation Reserves in Australia: A Review, Australian Conservation Foundation, Melbourne, 1992, pp172-232.]
(d) After the Mabo decision in 1992, the WA Government adopted a negative attitude to native title and in 1993 introduced legislation extinguishing all native title and substituting lesser rights that could be suspended by the government. The High Court unanimously ruled that the WA statute was invalid because it breached Commonwealth racial discrimination laws in treating Indigenous rights differently from non-Indigenous rights. The High Court also ruled against the WA government's challenge to the constitutional validity of the NTA arguing it was outside of the Commonwealth's power and exceeded the federal nature of the Constitution. Notwithstanding its various unsuccessful attempts to avoid the NTA, the WA Government granted various land interests contrary to the NTA procedures, which had to be subsequently validated as part of the 1998 amendments. More recently, the Government repeated history in granting mineral interests contrary to the NTA procedures under its 'Ward Policy' where applicant companies who satisfied government officials that the tenement is on pastoral lease land that has been enclosed or improved.
[Information from Goot, M 'The Wild West? Yes, no and maybe' in Make a Better Offer: The Politics of Mabo, Pluto Press, Sydney, 1994, p194-202; Land (Titles and Traditional Usage) Act 1993 (WA); Western Australia -v- Commonwealth (1995) 183 CLR 373; and Bartlett, R, Native Title in Australia, Butterworths, Sydney, 2000, para's 5.6-5.8]

46. Report, p59.

47. Mabo (No 2).

48. Evidence of Wensing, E (Australian Local Government Association) to Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Official Committee Hansard, 9 November 2000, pp NT27-28.

49. Report, p74.

50. The quote is located in the following discussion 'The length of time and complexity in obtaining title to, or over, land where native title exists is a significant present weakness. For an international investor, used to being able to easily obtain land titles on an unencumbered basis, the present requirement on the proponent to negotiate with Aboriginal groups that only have untested claims to hold native title is met with a mixture of amazement and disbelief. … [T]his lack of ability by the State to provide unemcumbered land is a major weakness in efforts to attract investment that has location alternatives. … With globalisation bringing concentration of resource ownership, it is not sensible to allow obstacles to be placed before the owner of a resource, as that owner may have alternatives elsewhere, where land is not an issue', Report, p59.

51. 'Native title rights and interests must be understood as what has been called "a perception of socially constituted fact" as well "comprising various assortments of artificially defined jural right". And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land', Yanner -v- Eaton (1999) 201 CLR 351 at 373 per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
'[I]n determining the existence of native title and in defining its content, a flexible and broad approach should be taken to ensure that the native title recognised truly reflects the claimant group's traditional connection to its land. It would be erroneous to endeavour to give content to that connection, and the rights and interests that flow from it, simply by reference to some supposed or analogous common law counterpart to those rights and interests', Rubibi Community & ano'or -v- Western Australia & o'rs [2001] FCA 607, paragraph 32.

52. 'Where a mineral or petroleum processing activity…was undertaken off the [mineral] lease or licence area, land title would have to be obtained. …[Where this involves freehold land, native title would not be involved, but in all other cases] the land would be obtained from the Crown through the LAA [WA's Land Administration Act 1977] processes…the right to negotiate processes would have to be completed before all the interests in the land could be resumed under the LAA and the land made available to the proponent', Report, p14
'The NTA provides for Aboriginal people to claim native title and sets out a process for negotiation and compensation where the State proposes to release land or issue a mining or petroleum title. The Department of Land Administration (DOLA) carries out historical land searches to determine whether native title may exists. If native may exist, DOLA undertakes referrals and processes required by the NTA where land is to be resumed', Report, p34.

53. NTA, s24MD(2)(c). Note, however, that in the uncommon case where compulsory acquisition does not acquire all non-Indigenous interests, native title rights may be preserved: s24MD(3).

54. Nowhere has it ever been the case in Australian law that non-Indigenous interests, validly created by government, are extinguished by native title rights. In Mabo, in the Native Title Act, in Wik and all subsequent court decisions, the law is that validly created non-Indigenous rights over-ride native title rights to the extent of any inconsistency:

In Mabo, a majority ruled 'A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title', per Brennan J at p68. Mason CJ and McHugh J agreed (p15) and Dawson J's judgement, in denying native title rights existed to affect any crown grant (eg. p149), arrives at the same result.
The NTA validated 'past acts' (which include legislation, grants of interest in land, and any other actions that have legal effect before mid 1993: ss226-228) of the Commonwealth (s14) and allowed State and Territory governments to validate their past acts (s19). All States and Territories have done so - Western Australia in part 2 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
In Wik Peoples & o'rs -v- Queensland & o'rs (1996) 187 CLR 1, a majority of the High Court explained 'To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of the grantees', Toohey J (with whom Gaudron, Gummow and Kirby JJ concurred on this point - CLR p189-190).
Following Wik, the NTA was amended to validate various government acts that had created interests contrary to the original NTA provisions: ss23B and 23F. This had the effect of preferring non-Indigenous interests over native title rights.

55. Where the government creates a future interest, by granting mineral or land use rights in land under native title claim, if that future interest has been validly created then native title rights do not impair that interest. Indeed, the interest prevails over any inconsistent native title rights: NTA, s44H.

56. NTA, s238.

57. NTA, s44H.

58. Report, p59.

59. The context of the quote indicates the Committee is considering only 'non-Indigenous title': 'The length of time and complexity in obtaining title to, or over, land where native title exists is a significant present weakness. For an international investor, used to being able to easily obtain land titles on an unencumbered basis, the present requirement on the proponent to negotiate with Aboriginal groups that only have untested claims to hold native title is met with a mixture of amazement and disbelief', Report, p59 (emphasis added).

60. 'The State Government indicated its intention to release mining tenements over areas in pastoral leases where it could be "satisfactorily demonstrated that native title had been extinguished" … Regrettably, the States application of this policy has been both secretive and haphazard. As a result it appears clear that the State is granting tenements where native title has not been extinguished, without having regard to the due process of the native title act. This is likely to render the tenement in question invalid and raises significant problems for the future of the minerals industry in Western Australia', Yamatji Land and Sea Council, Backgrounder, November 2000, p1.
'WA has…been at the forefront of a sustained political attack on the Commonwealth Native Title Act, and has used valuable taxpayer dollars to fight, unsuccessfully, native title. … [A 1997 WA Parliamentary Committee recommended WA adopt an agreement-based approach to native title] Despite this, legislative attempts to abolish or severely diminish native continue to be made. The latest example of the Native Title (State Provisions) Bill which severely limits Aboriginal people's native title rights in relation to pastoral leasehold land - rights confirmed by the High Court in the Wik case - by taking away out rights to negotiate and replacing them with lesser consultation procedures. Another manifestation of the current approach is the Titles (Validation) and Native Title (Effect of Past Acts) Bill, which was recently passed by State Parliament. This Bill unnecessarily extinguishes native title on many areas of land. These examples explain will Aboriginal people reject the current approach, and always will. Under all its legislative guises, this approach amounts to rejection of our culture and way of life', WAANTWG, Reaching Agreement: A better approach to native title in Western Australia, 1999, Perth, pp3-4.
'[O]utcomes from the Native Title Act have been slow and piecemeal. They have also been expensive, time consuming and, in some respects, deeply divisive for some Aboriginal communities. In large part, these difficulties have been caused by State and Federal governments choosing to litigate claims at every possible step in the process', ATSIC Commissioner Jenny Pryor speech at the Native Title Representative Bodies Legal Conference, Townsville, 28 August 2001.

61. The phrase 'native title' is defined in the Act as 'the…rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters… [which rights and interests] are possessed under…[Indigenous] laws [and] customs': s223, with the additional requirements that the particular native title claimants must have connection with the relevant land/waters, and the rights must also be recognised by Australian common law.

62. NTA, s3. The remaining three 'main objects' of the NTA are about establishing procedures for dealing with native title issues.

63. Report, p58.

64. WA -v- Commonwealth (1995) 183 CLR 373 at 377-378.

65. Section 3 of the Land (Titles and Traditional Usage) Act 1993 (WA), now repealed.

66. Report, p12.

67. NTA, s24AA(1).

68. The NTA allows various non-Indigenous interests to be granted without complying with the RTN process: s24FA (future acts where procedures indicate absence of native title); s24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases); s24GD (acts permitting off-farm activities directly connected to primary production activities); s24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases); s24HA (management of water and airspace); s24IA (acts involving renewals and extensions etc. of acts); s24JA (acts involving reservations, leases etc.); s24KA (acts involving facilities for services to the public); and s24LA (low impact future acts).

69. 'A common theme in the submissions to the Committee was concern over the difficulties proponents encountered through the native title processes. One area of particular difficulty was the uncertainty over who held native title, which could result in a proponent having to deal with multiple claimants under the NTA processes', Report, p44.
'[T]he Committee welcomes the Wand Report and anticipates that its outcome and implementation of the government's response will do much to overcome the uncertainty in relation to who holds native title over land. The removal of this uncertainty can only be of benefit to the efficiency and effectiveness of the approvals process operating in the State', Report, p44.
'Native title over land is seen by investors as an internal issue, to be sorted out internally, and not something to be done by the proponent', Report, p59.

70. Although there are areas of exception, the majority of overlapping native title claims are located in the south-western third of WA's land with the remainder of the State's land covered by either no claim or one claim: Wand, P & Athanasiou, C, Review of the Native Title Claim Process in Western Australia, WA Government, 2001, appendix 7 (map).

71. 'The Native Title Act has been a further constraint on the facilitation value of Agreements. Previously the State was able to promise to issue all tenures following approval of proposals. The reality now is that it can only promise to do this is native title issues are resolved', Report, p42.
'[T]wo main issues dominate the approvals system: land tenure and the environment. … Because of the importance of both access to land and the ability to construct, other approvals would normally wait on the completion of the requirements of the NTA and the EP Act. Also, in most circumstances, the NTA processes would have to be completed before a proponent would have the confidence to seek final environmental approval', Report, p8.

72. Various rights of native title claimants are specified in division 3 of the NTA.

73. Required by NTA, s225.

74. (2000) 170 ALR 159.

75. [2000] FCA 1717.

76. [2001] FCA 1140.

77. eg. Mirriuwung Gajerrong, Court Order 5(b). In Tjurabalan People, Court order 4(i)(d) recognised a right 'to control access to, and activities conducted by others on, the land and waters of the Determination Area'.

78. 'Native title is considered to be a co-existing title in offshore areas and consultation only is required', Report, p13.
'[F]ollowing the recent native title determination in the Croker Island Case, it is likely that Aboriginal people will have a right to notification and this could affect offshore licence applications in future', Report, p41.

79. NTA, s24NA(8).

80. 'The application of these procedural rights in uncertain because there are no 'corresponding rights and interests'. Offshore common law native title rights and interests are unique and not necessarily subject to the degree of reservation, restriction and limited duration attaching to other offshore rights and interests', Bartlett, R, Native Title in Australia, Butterworths, Sydney, 2000, paragraph 18.61.

81. NTA, s24NA(9).

82. NTA, s24NA(10).

83. NTA, s29(7).

84. NTA, s237.

85. Technical Taskforce on Mineral Tenements and Land Title Applications, Final Report, Western Australian Government, Perth, 2001 ('Taskforce Report'), p157.

86. Examples of recent cases include Freddie -v- Western Australia & Povey (19 December 2001, Member Stuckey-Clarke), Velickovic -v- Western Australia & o'rs (8 June 2001, Member Franklyn), and Young on behalf of the Ngadju People -v- Western Australia & South Coast Metals (7 June 2001, Member Sosso).
There are also many cases where, after the native title party has had to prepare and lodge an objection to the expedited procedure, the tenement application has been withdrawn or the expedition notice dropped. This indicates either the government or applicant did not want, or was unable to justify, that tenement's proceeding under the expedited procedure. Recent cases of this type include Gulngarring & Luwanbi on behalf of the Warai -v- Northern Territory of Australia & o'rs (19 December 2001, Member Sosso), Johnny & o'rs for the Kunapa/Kurtinja/Mangirriji and Kunakiji/Lurrkunu Peoples -v- Northern Territory & Rio Tinto Exploration (28 November 2001, Member Franklyn), and Lansen on behalf of the Mara, Alawa,Yanyuwa and Gurdanji Peoples -v- Northern Territory & North Mining Limited (22 October 2001, Member Sumner).

87. The question of whether a tenement properly falls within the expedited procedure focuses on the full range of rights permitted under the tenement, and is not decided only by considering the applicant's proposed activity on the tenement: Dann -v- Western Australia (1997) 74 FCR 391.

88. 'This Committee supports the approach taken in the recommendations in the Technical Taskforce's Report. … The review endorses the Technical Taskforce recommendations on the use of ILUAs and regional heritage agreements…as effective means to assist in expediting the grants of permits and leases', Report, pp 45 & 88.
The problem is that the Taskforce aligned itself to MPR's flawed policy by characterising the expedited procedure as a process where the government simply asserts expedition and then the onus is on Indigenous people 'who believe the proposed…activities will have a significant impact on native title rights and interests', Taskforce Report, p40.

89. Report, p3.

90. Report, pp39, 44, 45.

91. Taskforce Report.

92. 7,428 from a total of 11,081 'pending tenements', or 67%, are 'awaiting submission to the NTA process' (figures compiled from Taskforce Report appendices 8-14).

93. The Taskforce notes that processing a tenement application through the expedited procedure (where there has been objection) takes around six months (Taskforce Report, p40). National Native Title Tribunal ('Tribunal') statistics indicate that, nationally, nearly 70% of expedited procedure applications are not objected to, allowing the relevant tenements to be granted within six months (Neate, G, Native Title and Mining Industries In Australia: Meeting The Challenges And Pursuing The Possibilities, Paper delivered at Australian Mining Seminar Australia House London, 7 February 2001, pp23-24).
Where a tenement goes through the longer negotiation procedure there is a six month period for 'good faith' negotiation and, if no agreement is reached and the Tribunal is asked to arbitrate, a decision is required within a further six months (Taskforce Report, p43).

94. MPR currently has over 7,400 tenement applications which are awaiting submission to the native title system (Taskforce Report, appendices 8-14). The Taskforce explained about 3,500 tenement applications are received by MPR each year, with around 100 applications entering the 'backlog' each month (Taskforce Report, p39). Arithmetic shows that if only 3,500 applications are made each year, a figure of 7,428 could not be reached until several years' applications have been withheld from the native title process.

95. [2001] HCA 56 (11 October 2001) ('Croker Island Case').

96. Report, pages 41, 61 and 96.

97. The following sections are from the NTA prior to the amendments in 1998: s223(1) explained that native title rights and interests means Indigenous interests 'in relation to land or waters' (emphasis added); s61 provides that Indigenous people may lodge a claim in relation to their native title rights and interests; and s23(6) specifies procedural rights in relation to offshore native title. The procedure under the NTA after the 1998 amendments are addressed in section 4.1(c) of these submissions.

98. Mary Yarmirr & o'rs -v- Northern Territory and o'rs [1998] FCA 1185.

99. The Taskforce stated, in relation to the Croker Island Case: 'The decision confirmed that while native title can exist off-shore it can only be non-exclusive. The decision means that whilst the right to negotiate does not apply there may be procedural rights to be complied with', Taskforce Report, p64.

100. '[T]here is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage' and '[The Commonwealth's] sovereignty...is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area', joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, Croker Island, para's 98-99 (emphasis added).

101. Accordingly, an exclusive right to control the use of resources under the sea-bed doesn't contravene the Yarmirr reasoning. The High Court indicated that infrastructure, which would be needed to exploit under-sea resources, is not inconsistent with public rights of fishing, navigation and innocent passage: '[N]either the public right to navigate, nor the right of innocent passage, require free access to each and every part of the territorial sea', joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, Croker Island, para 96.

102. Mining Act 1978 (WA), s66(a).

103. see, eg., Mining Act 1978 (WA), s155 combined with ss18, 66, 67, 76, and 117.

104. Report, pp43-45. The Committee's terms of reference also specify the Review's outcome to be for 'a system of government decision making which is co-ordinated and integrated [and] balanced between community and developer needs', Report, p123.

105. 'A move away from the adversarial approach when dealing with native title towards an approach based on conciliation and negotiation can be expected to contribute significantly to a more timely processing of project approvals where these have native title implications', Report, p87.
'The State should encourage and promote the use of agreements - protocols, regional heritage agreements, memoranda of understanding and Indigenous Land Use Agreements - as part of moving towards greater use of agreement to resolve native title issues', Report, p89.

106. '[T]he Committee welcomes the Wand Report and anticipates that its outcomes and implementation of the government's response will do much to overcome that uncertainty in relation to who holds native title over land', p44.

107. '[I]t is not sensible to allow obstacles to be placed before the owner of a resource, as that owner may have alternatives elsewhere, where land is not an issue', Report, p59.
'The Mining Act should be amended to ensure that environmental objections [arising through the provisions for 'public interest' objections, which also permit Indigenous objections in the court] are not heard by the Warden's Court', Report, p85.
'The EP Act should not be used to duplicate, and should be amended if necessary to remove the duplication of any functions of the Aboriginal Heritage Act and protection of sites should be entirely through that Act', Report, p86.
'The Mining Warden should only deal with matters and objections that relate to the provisions of the Mining Act, and the Mining Act should be amended to make this explicit', Report, p96.
'The State should open negotiations with the Commonwealth to mesh the State Aboriginal Heritage Act with the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act such that a Section 18 clearance under the State Act entirely satisfies the protection requirements of the Federal legislation in relation to the land which is the subject of the clearance', Report, p89.

108. Section 18 of the AH Act allows a person to destroy an Indigenous site if the Minister has approved that occurring. The Committee notes that 'Under the AH Act, an owner of land can appeal [to the Supreme Court] the Minister's decision regarding a Section 18 application, however, the legislation provides Aboriginal people with no such recourse', Report, p36. This represents a clear discrimination on racial grounds because 'owner of land' is defined to exclude an owner of Indigenous interests in the land: AH Act, ss18(1) and (1a).

109. In contrast to the model of Indigenous heritage enacted in the AH Act, the UN Sub-Commission on the Promotion and Protection of Human Rights is elaborating human rights-based principles and guidelines for the protection of the heritage of indigenous people: Draft principles and guidelines for the protection of the heritage of indigenous people, (Annex I to UN document E/CN.4/Sub.2/2000/26, dated 19 June 2000). The principles include the following matters.

The effective protection of the heritage of the indigenous people of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability and creativity of the human species as a whole (paragraph 1).
The discovery, use and teaching of indigenous peoples' heritage are inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples' heritage to future generations, and its full protection (paragraph 5).
To be effective, the protection of indigenous peoples' heritage should be based broadly on the principle of self-determination, which includes the right of indigenous peoples to maintain and develop their own cultures and knowledge systems, and forms of social organisation (paragraph 2).
Indigenous peoples should be the source, the guardians and the interpreters of their heritage, whether created in the past, or developed by them in the future (paragraph 3).
Indigenous peoples' ownership and custody of their heritage should be collective, permanent and inalienable, or as prescribed by the customs, rules and practices of each people (paragraph 4).

110. 'The Mining Act should be amended to ensure that environmental objections [arising through the provisions for 'public interest' objections, which also permit Indigenous objections in the court] are not heard by the Warden's Court', Report, p85. 'The EP Act should not be used to duplicate, and should be amended if necessary to remove the duplication of any functions of the Aboriginal Heritage Act and protection of sites should be entirely through that Act', Report, p86. 'The Mining Warden should only deal with matters and objections that relate to the provisions of the Mining Act, and the Mining Act should be amended to make this explicit', p96. 'The State should open negotiations with the Commonwealth to mesh the State Aboriginal Heritage Act with the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act such that a Section 18 clearance under the State Act entirely satisfies the protection requirements of the Federal legislation [note 'Federal legislation' rather than 'Act', perhaps indicating the Committee advocates a s18 should override the NTA] in relation to the land which is the subject of the clearance', Report, p89.

111. Which would be consistent with the Report's statements that 'No submission sought to demonstrate that existing regulatory efforts serve no useful purpose and should be removed' (p83), and 'The proposals put forward seek to ensure that environmental, native title, planning and other checks and balances that serve the public interest are note reduced' (p118).

112. 'The State should encourage industry and Aboriginal representatives to join with it in developing heritage guidance and protocols … accepting that a full [heritage] survey would identify all sites on a particular piece of land and would be the point of reference for all further activity on the land', Report p89.

113. See, eg. paragraph 2 and 5 of draft principles and guidelines for the protection of the heritage of indigenous people, (UN document E/CN.4/Sub.2/2000/26, 19 June 2000).

114. The Committee notes 'The EPA is now giving consideration to Aboriginal heritage and cultural matters where they may be affected by impacts of a proposal on physical or biological surroundings… [and] As a result, the EPA reinforces the requirement on the proponent to give attention to the Aboriginal Heritage Act', Report, p29.

115. 'The more appealing solution to the EP Act dealing with Aboriginal heritage and cultural issues would be to have the AH Act able to deal with these issues', Report, p29. The Committee justifies this recommendation in part because would 'protect a proponent from people using the overlap to their advantage in negotiating with the proponent on project issues', Report p29.

116. The AH Act simply creates a scheme whereby, if a person disturbs a site, they commit an offence. The Department of Indigenous Affairs encourages proponents to conduct a heritage survey, and this will be relevant if any damage is alleged in the future, but it is not a legal requirement: 'It is recommended that proponents consider Aboriginal heritage issues at an early stage in development planning. This may involve informal discussions with staff of DIA (Aboriginal Heritage & Culture Branch) and/or engaging specialist consultants to provide advice and analysis of development concepts in terms of their potential impact on places of Aboriginal heritage value', section 2.2 of (WA) Department of Housing and Works - Heritage Services, Aboriginal Heritage Procedures Manual (2002), on Department of Indigenous Affairs website < http://www.dia.wa.gov.au/ >, accessed 27 February 2002.

117. Report, pp 85 & 95. The Mining Act allows objections to tenements on the basis of 'public interest considerations': Re: Warden Calder: Ex Parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

118. The Report does contain, in sections 5.8-5.11, two 'options for coordinated systems' that involve substantial changes to the development approval process and these 'coordinated systems' provide greater scope for Indigenous interests to be addressed at an earlier point in proposed development. However, the Committee's recommendations for limiting Wardens Court objections are proposed without having to adopt the coordinated system: Report, pp 83 & 100.

119. 'Government should consider ways of providing greater access for exploration on private land in the State without affecting the economic use of that land. This will require attention to the rights of the owner, and consideration should be given to setting up…some mechanism where the refusal by an owner can be tested in a fair and open manner', Report, p95.

120. See Queensland government statement, Statewide Model Indigenous Land Use Agreement, <www.nrm.qld.gov.au/resourcenet/mines/nativetitle/ilua.html>, accessed 15 January 2002.

121. 'The Wand Report notes that "NTRBs are not adequatey resourced to carry out their functions in relatioin to the resolution of native title applications in anything like the time frames targeted by the Federal Court". This situation has also been acknowledged at the national level', Report, p35.

122. eg. in addition to the Wand Report, also Senator Brennan Rashid, Review of Native Title Representative Bodies, 1999 (commissioned by ATSIC); the Taskforce Report (p104 noting the lack of funding to enable NTRB's to fully assist with the tenement application process); and Parker, G & o'rs, Review of Native Title Representative Bodies, ATSIC, Canberra, 1995..

123. 'There is overwhelming evidence that representative bodies are not receiving adequate funding to enable them to assist with the negotiation of ILUAs within the timeframes proponents require or prefer', Commonwealth Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Second Interim Report for the s206(d) Inquiry: Indigenous Land Use Agreements, Parliament of the Commonwealth of Australia, Canberra, 2001, p99.

124. 'This situation [level of NTRB funding] has been acknowledged at the national level and has resulted in the Commonwealth committing additional funding to ATSIC [Aboriginal and Torres Strait Islander Commission] over four years', Report, p35.

125. Only 20% ($17,400,000 of $85,919,000 over four years) of the 'additional funding' goes to ATSIC, with the remaining 80% being divided between the Commonwealth Attorney General's Department (18%), the Tribunal (42%) and the Federal Court (20%). All of funding for ATSIC is held and managed by ATSIC not NTRBs and 57% is to be used for 'capacity building'.

126. NTRB functions are specified in s203B of the NTA.

127. NTRB's assist (by direct representation or funding assistance to private lawyers) 89% of native title claims in Australia: information provided to the Human Rights & Equal Opportunity Commission by the Federal Court of Australia and the Aboriginal and Torres Strait Islander Commission.

128. Report, pp35 & 44.

129. NTA s203B(4) specifies that NTRB's 'may allocate resources…so as to be able to perform its functions efficiently but must give priority to the protection of the interests of native title holders' (emphasis added). This means that where a government (with its greater funding) is endeavouring to use the expedited procedure to progress development, or the Tribunal (with its greater funding) wishes to proceed with a future act hearing, or the Federal Court (with its greater funding) wants to progress a native title claim to a resolution, an NTRB must give these matters priority over trying to reach agreements.

'The representative bodies seem to be suffering from a lack of resources to facilitate ILUAs, causing delays in negotiations, certification and registration', section 1.2(b) of submission by Rio Tinto Limited to Inquiry into Indigenous Land Use Agreements by Commonwealth Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, document available at <ww.aph.gov.au/senate/committee/ntlf_ctte/indig/Submission%2023.doc>, accessed 3 March 2002.

Report, p118. The statement accords with the Committee's explanation that it received no submission that 'sought to demonstrate that existing regulatory efforts serve no useful purpose and should be removed', Report, p83.

For further information, see <www.ameef.com.au/mmsd/index.htm>.

MMSD Draft Report, p36. Available at < www.ameef.com.au/mmsd/index.htm>, accessed 27 February 2002.

Last updated 12 June 2002.

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