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Comments by Aboriginal and Torres Strait Islander Social Justice Commissioner on MMSD (Australia) Project, as at 14 November 2001

Overview
 Revelant Human Rights Principles
 Managing Minerals Wealth (K Willett)
 Baseline Assessment (P Hancock & M Roarty)

1. OVERVIEW

1.1 Introduction

In early 2001 AMEEF, as managers of the MMSD (Australia) project, commissioned various studies including a baseline assessment of the minerals industry and five other areas of interest: mining and biodiversity, stakeholder engagement, mining-Indigenous agreements, managing minerals wealth, and industry-based initiatives for sustainable development. These studies will contribute to a final report of the MMSD (Australia) project, which will form part of MMSD's global project.

One of the aims in the MMSD (Australia) project is to define 'a broadly-supported program of action for future progress on sustainable development in the Australian minerals industry'. [1] Sustainable development cannot be achieved in a manner inconsistent with universal human rights. The importance of human rights in the aim for, and practice of, sustainable development has been repeatedly emphasised [2], as has the importance of Indigenous people and their communities.[3] It is generally recognised that in order to achieve sustainability every venture, including mining, has to balance three elements; economic, environmental, and social. Australia's mining industry in Australia will be assisted in reaching this balance through AMEEF's proposed program of action. However, AMEEF's aims will not be achieved unless the final report of the MMSD (Australia) project is consistent with international human rights standards, particularly those principles that are legally binding within Australia.

As the Aboriginal and Torres Strait Islander Social Justice Commissioner I have 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 the action that should be taken to ensure these rights are observed.[4] It is in keeping with these functions that I make the following comments.

1.2 Contents

This document sets out the human rights principles that, in my view, are relevant to the AMMEF project. It then focuses on two commissioned studies that are of concern from a human rights perspective. The document is divided into the following sections.

2. RELEVANT HUMAN RIGHTS PRINCIPLES
2.1 Equality and non-discrimination
2.2 Protection of culture
2.3 Effective participation
3 MANAGING MINERALS WEALTH
3.1 Purpose of native title
3.2 'Right to negotiate' and mineral wealth
3.3 Native title rights to minerals
3.4 Native title as an impediment to economic development
3.5 Arguments against the 'right to negotiate'
3.5.1 'Right to negotiate' assists native title parties only
3.5.2 Urgency to address Aboriginal disadvantage
3.5.3 Native Title Act severely impedes mining and exploration
3.5.4 Payments distort otherwise efficient decisions
4 BASELINE ASSESSMENT STUDY
4.1 Historical aspect
4.2 Native Title Act and the 1998 amendments
4.3 Alternative State / Territory regimes

2. RELEVANT HUMAN RIGHTS PRINCIPLES

As noted in the introduction, there is an important relationship between sustainable development and human rights. The primary responsibility for implementing international human rights treaty obligations lies with national governments. However, this does not mean that non-government parties (including mining companies, industry organisations and analysts) can ignore these principles. The basic human rights standards developed by the United Nations state that 'every 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'. [5] Various companies and other non-state actors have acknowledged these standards.[6] However where the private sector fails to act in accordance with these standards, it is incumbent on government to ensure, through legislation or policy measures, that the principles they have signed up to are implemented.

The human rights principles set out below are drawn from international treaties including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) [7] and the International Covenants on Economic, Social and Cultural Rights (ICESCR) [8] and on Civil and Political Rights (ICCPR)[9] . Australia voluntarily assumed these treaty obligations, [10] and there are also principles arising under norms of international law. [11] The principles from both these sources can be divided into three broad areas: equality, culture, and effective participation.

2.1 Principles of equality and non-discrimination

Australia is required, under ICERD, to protect the right to equality, including equal protection of property interests, without distinction as to race, colour or ethnic origin. [12] Accordingly, property rights of Indigenous people must be protected to the same degree as non-Indigenous property rights.

In order to achieve equality and equal protection of property interests, while also taking account of the specific cultural identity of the group or individual concerned, may require the government to adopt measures that treat the particular group differently.[13] This is the principle of 'relative' or 'substantive' equality,[14] which is acknowledged by the Australian government as appropriate in the case of Indigenous rights in Australia. [15] It can be distinguished from the notion of formal equality, which merely requires governments to treat all groups the same.

Indigenous property rights derive from the traditional laws of Indigenous people. Prior to the Mabo decision, the Indigenous system of law and culture was seen as inferior to the Western system, Indigenous property rights were vulnerable to extinguishment or impairment under the common law. To achieve the necessary equal protection of Indigenous property rights, differential treatment of such rights is required. [16] This is one of the bases upon which the High Court's Mabo decision and the Commonwealth Parliament's Native Title Act 1993 ('Act') were founded.

2.2 Protection of culture

The ICCPR provides that, in countries that have joined this treaty, members of minority groups are entitled to maintain and enjoy a distinct culture.[17] 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 the culture is founded. [18] If such territories are to be used for developments such as mining, the right to enjoy one's culture requires that the territories should not be subject to use in any way that has more than a 'limited impact' on the Indigenous way of life. [19]

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 to only the traditional means of livelihood but includes a right to social and cultural evolution and economic development. [20] This is particularly relevant to the MMSD work because of the recognition that Australia should 'provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics'. [21]

2.3 Effective participation

Indigenous people have a right, under ICERD and also implied in ICCPR and ICESCR, to effective participation in decisions affecting them, their lands and territories'. [22] Effective participation is particularly important in the case of decisions affecting Indigenous land because of the cultural relationship Indigenous people to their land. [23]

Australia, together with other countries who accepted these treaty obligations, needs to 'ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent'. [24]

3. MANAGING MINERALS WEALTH (K Willett)

The study AMEEF commissioned for this part of the project focuses on the economics of mining, aiming to:

The study conducted by Mr Willett includes papers and presentations in the Perth [26] and Brisbane [27] conferences. This material touches on issues of native title. I understand Mr Willett addressed native title issues at more length in the Perth meeting (in July) and his final report will provide further detail on various important artificial impediments to mining,[28] with the Perth paper only providing 'brief introductory remarks on some of these artificial impediments [including native title]'. [29]

Mr Willett analyses matters on a basis of 'efficient allocation of resources'. Accordingly, actions and government policies that do not promote the most efficient (economic) use of resources are discouraged. Such an approach does not recognise, nor account for, the inclusion of Indigenous rights in Australia's minerals system. It is important that the effects of Indigenous interests on mining are fully discussed, but it is impractical for any analysis of, or suggested changes to, the native title system to be based only on its financial consequences.

Mr Willett's assessment of native title and Indigenous rights is problematic, from a human rights perspective, in various respects, which I explain in points 3.1 to 3.5 below.

3.1 Purpose of native title

Mr Willett characterises the native title system as 'designed…to provide holders of native title with access to some of the nett value of mineral resources'. [30] This view is repeated in his later assertion that 'The "right to negotiate" provision was included in the legislation on equity grounds to help redress the severe disadvantage of Aboriginal people in the Australian community' . [31]

This assessment misconceives native title. The understanding of native title's rationale has serious implications for how the AMEEF project intends to progress from this point, so I will explain my reasoning in detail.

Native title is not a special measure implemented by government to improve the situation of an underprivileged group of Australians. Rather, native title is a recognition of Indigenous laws and customs that pre-existed the acquisition of sovereignty in Australia. This characterisation is consistent with the Mabo decision [32] and more recent High Court decisions. It is also consistent with the Native Title Act: the first of the Act's four main objects is 'to provide for the recognition and protection of native title'. [33] 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'. [34]

The 'right to negotiate' under the Act receives considerable attention in Mr Willett's study. It is relevant to note that control of access to, and activities on, traditional estate is a consistent feature of Australian Indigenous customs and traditions. The right to negotiate is a diminished reflection of this need to 'look after' the land and can be characterised as part of Indigenous culture. As noted earlier, Australia has obligations to protect the rights of Indigenous people to their own culture. [35]

In summary, the Act and relevant court decisions demonstrate that the basis for native title is recognition of Indigenous rights in land. There is an important distinction between characterising native title as 'redress[ing] the severe disadvantage of Aboriginal people' or as an inherent right arising out of the Indigenous legal system but recognised and protected by the non-Indigenous legal system. The relevance of this distinction is that it affects how one analyses, or suggests changes to, the native title system. Rights created by statute to meet policy objectives of Australian society can properly be adjusted to reflect changing priorities in Australian society, provided this does not contravene Australia's international obligations. However, native title is not a statutorily created right to meet policy objectives, but an inherent right derived from Indigenous culture. Changes to the native title system designed to give preference to non-Indigenous economic interests [36] are a breach of the human rights of Indigenous people and contrary to international and Australian racial discrimination law. Such an approach is unlikely to progress toward a sustainable outcome.

3.2 'Right to negotiate' and mineral value

 Mr Willett implies that the Act gives some Indigenous people the right to take partial value of minerals [37]. This is not the case.

In some circumstances, native title parties have a right to negotiate in relation to future land use but where the parties don't agree, the National Native Title Tribunal makes a ruling. The Tribunal is expressly prohibited under the Act from ruling that a native title party receive any financial gain worked out by reference to things produced on, or income from, the land [38]. Accordingly, the only way that a native title party 'will be entitled to payments calculated by reference to profits, income, or production' [39] is where the developer agrees to that outcome. It is not an entitlement that Indigenous people can obtain under the Act without the company's consent.

It could also be noted that the Act's prohibition on an arbitrated outcome based on income, influences negotiations between companies and native title parties. Where a company knows it cannot be forced to make a payment worked out by reference to profits, income or production it may be less likely to entertain such possibilities during negotiations.

3.3 Native title rights to minerals
In his Perth paper, Mr Willett states 'the Federal Court has repeatedly ruled that native title rights in minerals have previously been extinguished by legislation and the…[government] is the owner of the minerals in situ'. [40] This brief discussion of native title rights and minerals is misleading.

Australian court decisions in relation to mineral ownership and native title are equivocal. The High Court's ruling in Mabo recognised the native title holder's rights to exclusive possession and use of land [41] , which has been interpreted to include the right to commercial exploitation of minerals and timber. [42] Some subsequent Federal Court decisions indicate that particular statutes give the relevant State/Territory government complete title to certain minerals in that land, meaning no native title rights to those minerals can be recognised.[43] However, other Federal Court judgements have confirmed native title rights to minerals.[44] A recent High Court decision dealing with crown rights over fauna [45] heralds a revision of popular notions of crown 'ownership' of natural resources and its extinguishing effect on native title rights in minerals. Additionally, the High Court decision of Croker Island delivered on 11 October 2001 also indicates the possibility of native title rights to minerals. [46]

Court rulings in other common law countries include, as part of native title, the rights to minerals and other natural resources.[47] Under Australian common law, the usual position is that the party possessing land also has rights to the minerals (except gold and silver) in that land, [48] unless changed by statute. The Act has not changed the situation of mineral ownership and does not preclude native title rights in minerals. The issue of native title rights to minerals is a matter that may be guided by the pending High Court decision in Ward-v-Western Australia. [49]

The issue of 'extinguishment' of native title rights to minerals is not uniform throughout Australia - it depends on the intention of the particular State (or Territory or Commonwealth) statute being considered. Given the lack of judicial consensus on the issue, it is imprudent and inaccurate to indicate that the Act and Federal Court deny Indigenous rights in mineral resources.

3.4 Native title as an impediment to economic development
Mr Willett's study opposes 'artificial impediments' to economic development. In his 1992 paper, [50] much of which is replicated in the AMMEF study, 'artificial impediments' are described as 'government action that discriminates against particular types of economic activity…without valid economic reason'. [51] Mr Willett accepts government regulation of mining provided it is 'well-designed government measures that discriminate against certain activities in order to improve efficiency by correcting market failure (excessive pollution, abuse of monopoly power, etc)'. [52] Clearly, because native title laws are not aimed at 'improv[ing] efficiency by correcting market failure' and have no 'valid economic reason', the study consigns the Act to be an 'artificial impediment'.

In his Brisbane presentation, Mr Willett concluded by stating that artificial impediments need to be removed, which was also the position of his 1992 paper. [53] When asked, in Brisbane, what his conclusion actually meant in relation to native title, Mr Willett suggested the government should be doing more to assist underprivileged Aboriginals and these responsibilities shouldn't be unfairly placed on miners operating in particular areas. As explained above this analysis is based on a misunderstanding of the nature of native title, [54] but in any event, it implies there is little need for mining companies to engage Indigenous stakeholders. When asked of this implication, Mr Willett elaborated no further.

If Mr Willett's position is that governments should repeal the Act and ignore native title rights, this should be explicitly addressed. Any such position would also need to explain how it would:

(a) be reconciled with standards on racial discrimination [55], and
(b) deal with compensation to be paid for the property rights being denied. [56]

3.5 Arguments against the right to negotiate
Mr Willett specifies four reasons why he considers the right to negotiate provisions do not 'redress [the] severe disadvantage of Aboriginal people'. While the basic premise of this analysis (namely, that the right to negotiate is to redress Aboriginal disadvantage) is misconceived, [57] the reasons advanced in support of the assertion that the right to negotiate isn't working also require comment.

3.5.1 'Right to negotiate' assists native title parties only

Mr Willett states the right to negotiate 'measure' only assists people who are native title claimants or holders.

The right to negotiate may not always manifest in financial exchange and can be one method for native title parties to ensure their concerns are addressed before certain developments proceed. Many concerns that native title parties raise during negotiations have nothing to do with money and can include: identification of sites to be avoided during construction, cultural awareness training for company personnel, and possibilities of the company's assistance in protecting important areas. A right to participate in the management of the land through negotiation is a real gain and consistent with human rights standards set out above.

Even considering matters from a purely financial sense, benefits from an agreement arising through the right to negotiate often spread more widely than just the claim group involved. As noted earlier, native title is based on Indigenous customs and traditions. This often results in native title claim groups including only part of a community or family because other members have a relationship to that community / family (eg. marriage, in some areas of Australia) that does not include traditional ties to the relevant land. [58] However, where some people in a community / family receive financial benefits through the right to negotiate, those benefits can assist non-claimant members in that family and community.

Financial and non-financial outcomes from negotiations can readily benefit Indigenous people other than those involved in the particular native title claim. For example, the outcomes can act as a precedent for other companies and other areas; or if a significant area is protected, this can be important to other Indigenous people (including future generations) even though they have no legally recognisable rights in the area. At a simpler level, outcomes from the right to negotiate show that some parts of Australian society respect, and accommodate, Indigenous concerns. This has nation-wide benefit to the reconciliation process

Finally, even if one were to accept Mr Willett's argument that the right to negotiate only benefits native title holders, it does not follow that the right to negotiate should be removed as ineffective. Native title is a proprietary interest and, like non-Indigenous property holders, native title holders are entitled to the benefits that flow from being the owners of proprietary interests.

3.5.2 Urgency to address Aboriginal disadvantage

Mr Willett's second complaint about the right to negotiate is that problems of Aboriginal disadvantage need to be addressed immediately and borne equitably across the community, and should not be dependent on the location and value of mineral deposits. To the extent that this argument is an extension of the previous point that the right to negotiate only benefits those in a native title claim, this is dealt with in 3.5.1 above.

I agree wholeheartedly with Mr Willett's view that problems of Aboriginal disadvantage need to be addressed immediately, especially in relation to education, health, housing and supply of essentials such as water. These are basic entitlements of all Australian citizens and should be provided regardless of whether a person is Indigenous or involved in a land claim. [59] It follows that Indigenous people should not be required to bargain with the rights that flow from their identity as traditional owners of a particular area in order to obtain services that are provided, as a matter of course, to non-Indigenous Australians. Indigenous rights to maintain their culture and secure their property are separate from and additional to citizenship rights.

3.5.3 Native Title Act severely impedes mining and exploration

The third reason Mr Willett offers as demonstrating the inefficacy of the right to negotiate is that the Act 'has become a severe impediment to exploration and mining, causing massive discouragement of the former'. [60] Contrary to Mr Willett's views, a separate AMEEF-commissioned study shows an increasing trend in exploration expenditure . [61]

A Western Australian Technical Taskforce, comprising mining industry and government representatives, cautioned that 'There are major difficulties in attempting to quantify the impact native title has had on the State's mining industry beyond delaying the grant of titles...because far more prominent issues...have contributed to the fall in exploration expenditure, not only in Western Australia but worldwide'. [62] The Taskforce outlined the fundamental reasons for declining exploration expenditure, and these did not include native title. [63]

3.5.4 Payments distort otherwise efficient decisions

Mr Willett's final point is that 'right to negotiate' payments 'distort…otherwise efficient exploration, development and operational decisions' and this is not addressed by the Act. An initial response is that the legislation was not enacted to address the efficiency of exploration, development and operational decisions.

A more important issue that arises from Mr Willett's study is that native title detrimentally affects mining profits. He presents financial detriment as a deficiency of the Act. However this grievance is not really with the Act but with the recognition of native title itself. It is the recognition of native title that gives rise to a right to be compensated for its impairment due to mining activities. It is the entitlement to native title that gives rise to a right to have that property interest protected from mining activities, either through negotiation, or through application to a court. If a 'right to negotiate', or similar method of including traditional owners in decisions affecting their land were not included in the Act, native title parties could seek injunctions or other relief to protect their rights. [64] The cost and uncertainty of such court actions, which would be likely in the absence of a right to negotiate, is not included in Mr Willett's analysis.

The logical conclusion of this argument that native title is a financial detriment to mining is that native title should be extinguished. The scope of such a proposition was discussed in 3.4 above. In summary, the Mabo decision confirmed Indigenous people have rights in land. The Act gives statutory recognition and protection to these rights. It is no longer a matter of whether mining should accommodate native title but how this should be done. From a sustainable development perspective, such accommodation should be consistent with universal human rights principles.

Mr Willett's study makes no reference to positive outcomes arising from the mining-Indigenous negotiations. One such example is the Yandicoogina Land Use Agreement. This agreement is between Hamersley Iron and the relevant Aboriginal people in the Pilbara region of Western Australia. Hamersley Iron, through agreements with the traditional owners, had the mine operating ahead of schedule (commenced 1999) and under budget. [65] This is very different to Hamersley Iron's earlier Marandoo mine, which encountered extensive opposition from environmental and Indigenous interests in its development - it was two years behind schedule (commenced 1994) and considerably over budget. [66] Adopting a 'financial efficiency' approach to these two examples suggests negotiation as the preferred option.

4. BASELINE ASSESSMENT (P Hancock & M Roarty)

AMEEF commissioned the Baseline Assessment to report on trends and issues related to sustainable development for the Australian minerals sector and to provide information on the mineral sector's response to sustainable development objectives. A paper was presented in the Perth conference [67] during which other areas were identified to be added into the Baseline Research including 'community perception of the mineral sector and…SD [sustainable development] issues'. [68] The draft final report presented at the Brisbane conference addressed some of these matters.

4.1 Historical assessment and participation of Indigenous people

The draft final report explains, '[I]t is important in understanding present day SD issues…[to have] an appreciation of the history of the Australian minerals industry… The events and values of the last 150 years and particularly those of recent generations, have influenced today's value and perceptions'. [69] Additionally, the authors acknowledge the 'need for [exploration and mining companies] to establish sound relationships with communities where they operate'. [70] These approaches are sensible and commendable, but are not consistently adhered to in the report.

As noted in my introductory comments on human rights, Indigenous people should participate in decisions affecting their lives, and international standards on equality also require protection of Indigenous culture and land. It is relevant, at this point, to consider statements of senior industry executives associated with MMSD:

In assessing historical matters, Messrs Hancock and Roarty make no mention of the relationship between Aboriginal people and mining. Instead, the authors state:

For 120 years from the Ophir discovery ['official discovery of gold in 1851']…Australians were clearly aware of the importance of the minerals industry to Australia and held a very positive view toward it, commonly with a sense of shared ownership and pride still remembered by older Australians - who will still remember the euphoria for the industry in the 1960s. [73]

This assessment ignores an Aboriginal perspective of the mining industry, which was responsible in many cases for further expansion and dispossession of Indigenous lands. I am not aware of a 120 year positive view of Australia's Indigenous peoples toward the minerals industry, or there being a sense of shared ownership and pride or euphoria for the [mining] industry in the 1960s. The authors, however, state these were the attitudes of Australians. Clearly, the Indigenous perspective of mining history is not addressed in this part of the study. I hope this will be rectified in the final report.

4.2 Native Title Act and the 1998 amendments

The draft report explains the enactment and amendment of the Act. The authors indicate 'the Native Title Act 1993 as established [ie. its original form when enacted] was not working effectively in the period to early 1996…[because] the granting of exploration and mining titles in the dominant mining states had slowed considerably'.[74] The purpose of the Act was not to enable the timely granting of mineral tenements, but it was (and remains) to recognise and protect the rights and interests of Indigenous Australians in relation to areas that are possessed under their laws and customs. [75] This aspect is ignored, and the authors make no reference to the numerous leases and other interests in land that were illegally granted between 1993 and 1996, and subsequently validated by the 1998 amendments. [76]

The draft report discusses the 1998 amendments to the Act. The authors' coverage of the 1998 amendment process begins with the above implication that delay in mining tenure meant the Act wasn't working effectively, and they state:

The [Commonwealth] Government…therefore put in place a process designed to make the Act more workable…culminat[ing] in the Native Title Act Amendment Bill 1998…[that] was a compromise that empowered states and territories to legislate their own native title regimes. [77]

The 1998 amendments are not simply 'a compromise' - in my view and that of three international Committees [78] the amendments contravene human rights standards and Australia's international obligations. The government was advised of these contraventions before the amendments were passed. [79] The CERD committee observed significant discrimination in the amended Act [80] and recommended that the government 'suspend implementation of the 1998 amendments and re-open discussions with Aboriginal and Torres Strait Islander representatives'.[81] The Parliamentary Joint Committee on Native Title and the Indigenous Land Fund held an inquiry into the 1998 amendments. A consensus position was not reached and two reports were published, one by the government and one by non-government members. The government, and the government members of the Parliamentary committee, disagreed with Australia's Human Rights and Equal Opportunity Commission and various international bodies, and stated that the 1998 amendments are 'consistent with Australia's international obligations'. [82] Accordingly, there is a difference between, on the one hand, the view of three international committees, the Human Rights and Equal Opportunity Commission and the minority members of the Parliamentary Committee, and, on the other hand, the position of the government that introduced the amendments. [83] Mining and development projects that seek to proceed using the 1998 amendments do so on the basis there is substantial authority that these amendments contravene human rights standards.

4.3 Alternative State & Territory regimes

The draft report ignores the international aspect of Indigenous relations in its discussion of alternative regimes in Appendix A. The draft report notes the Senate disallowed some regimes and states:

It has been claimed by a number of industry commentator's [sic] that these disallowance's [sic] are related to philosophical and political motives on the part of the opposition parties as the Commonwealth Attorney Generals [sic] Department had cleared these legislative pieces in respect of compliance with Commonwealth legislation. [84]

The Aboriginal and Torres Strait Islander Social Justice Commissioner and the International Committee on the Elimination of All Forms of Racial Discrimination, noted that state regimes reduced the protection extended to native title rights. [85] While it is sometimes difficult, from Parliamentary debate, to identify every motive leading to a particular outcome, those speaking for the majority of the Senate indicated they disallowed the regimes because of concerns over Indigenous rights. [86]

The proposed laws, which contravene Australia's international obligations, are characterised in the draft report as 'legislation…to streamline the right to negotiate'. [87] The majority view of the Senate saw these proposed laws differently:

The Native Title (State Provisions) Act severely limits the native title rights of Aboriginal people in relation to pastoral leasehold. The section 43A scheme, which is part of that act, replaces the right to negotiate over pastoral lease and other crown land such as national parks with a much weaker consultation process. The right of native title holders to negotiate about mining and the compulsory acquisition of their land will be replaced with these lesser consultation processes. That is why [the majority of the Senate]...will be disallowing these regulations. They weaken the rights of Aboriginals to negotiate - the rights recognised in the Mabo decision and the Native Title Act. [88]

The Senate record shows, therefore, that the schemes were disallowed because of concerns over their impact on Indigenous rights - an aim to observe international human rights. The draft report's view indicates that such an aim was a 'philosophical and political motive'.[89] This characterisation suggests the authors have a preference, or perhaps a 'philosophical or political motive', against those rights.

1. From AMEEF website http://www.ameef.com.au/mmsd/progmana.htm (accessed 18 October 2001)

2. The United Nations General Assembly, by consensus including Australia, outlined a program toward sustainable development, in which it emphasised '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', (19 September 1997), UN document A/RES/s-19/2, para 23.
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.

3. The Rio Declaration on Environment and Development states 'Indigenous people and their communities...have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development', principle 22.

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

5. Preamble to the Universal Declaration of Human Rights (see footnote 11, below).

6. eg. 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

7. Australia joined this treaty in September 1975.

8. Australia joined in December 1975.

9. Australia joined in August 1980.

10. The Commonwealth Native Title Act (Act) states, in the preamble, 'The Australian Government has acted to protect the rights of all of its citizens, and in particular its Indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through the ratification of the [ICERD, ICESCR and ICCPR]'.

11. The Universal Declaration of Human Rights (UDHR) was passed, by consensus, by the United Nations General Assembly in 1948. The UDHR specifies basic human rights principles of international law.
The Act's preamble specifically confirms Australia's 'acceptance of the Universal Declaration of Human Rights', and 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 (1998, 2nd Edition) Commonwealth of Australia, p1.
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.

12. 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'.

13. 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.

14. 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 Indigenous Peoples (18 August 1997), para 5

15. See Human Rights & Equal Opportunity Commission Native Title Report (2000) p171

16. 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) paragraph 7.

17. 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'.

18. '[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 (8 April 1994) paragraph 7

19. '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' Human Rights Committee in Länsman-v-Finland (1994) UN document CCPR/C/52/D/511/1992, para 9.4.

20. '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 (1994) UN document CCPR/C/52/D/511/1992, para 9.3

21. CERD General Recommendation XXXIII Indigenous Peoples (18 August 1997), para 4(c)

22. 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'.
Article 1 of ICCPR and ICESCR emphasise peoples right of self-determination and to 'freely determine their political status and freely pursue their economic, social and cultural development'.

23. 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 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. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. 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' (8 April 1994) General Comment 23, para 7.

24. CERD General Recommendation XXIII Indigenous Peoples (18 August 1997) para 4(d).

25. From AMEEF website www.ameef.com.au/mmsd/research/index.htm (accessed 18 October 2001)

26. K Willett Managing mineral wealth for sustainable economic development: work in progress 6 July 2001

27. K Willett Managing Australian mineral wealth for sustainable economic development: depletion, resource curse and greenhouse effects 7 September 2001

28. Managing mineral wealth 6 July 2001, p23

29. Managing mineral wealth 6 July 2001, p23

30. Managing mineral wealth 6 July 2001, p2

31. Managing mineral wealth 6 July 2001, p25

32. 'Six members of the Court…are in agreement that the common law of this country recognizes a form of native title which…reflects the entitlement of the Indigenous inhabitants, in accordance with their laws or customs, to their traditional lands', (1992) 175 CLR 1 at 15 per Mason CJ and McHugh J.

33. s3, Native Title Act. The remaining three 'main objects' of the Act set out in section three are to establish procedures for dealing with native title issues.

34. 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.

35. Article 27 of the ICCPR 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'.

36. 'The result of [the right to negotiate under the Act] has been interference with an efficient allocation of resources and destruction of imputed nett value of minerals', Managing Mineral Wealth 6 July 2000, p25

37. 'The 'right to negotiate' provisions of the Native Title Act 1993 have given native title holders and registered claimants a powerful toll [sic - tool?] to appropriate a portion of imputed nett value of minerals', Managing mineral wealth 6 July 2001, p25.

38. Native Title Act, s38(2)

39. Managing mineral wealth 6 July 2001, p24

40. Managing mineral wealth 6 July 2001, p25

41. The High Court ordered in Mabo, that the traditional owners 'are entitled as against the whole world to possession, occupation, use and enjoyment of the [relevant] lands', (1992) 175 CLR 1 at 217

42. R Bartlett Native Title in Australia (2000) p170

43. In the Wik litigation (63 FCR 450 at 500-2), the trial judge decided that specific Queensland legislation extinguished any native title rights to minerals and petroleum. This aspect was not subsequently addressed in the High Court's ruling in the Wik case, and the first instance decision on mineral rights has since been judicially doubted because of subsequent High Court rulings about government 'ownership' of resources: Justice North in the (minority of) the full Federal Court appeal decision in Ward-v-Western Australia observed of the Federal Court decision in Wik that 'the conclusion that the mining legislation in Queensland conferred full beneficial ownership on the crown sufficient to extinguish native title cannot be regarded as correct' (2000) 170 ALR 159 at para 843.
The majority decision of the Full (Federal) Court in Ward-v-Western Australia ruled that Western Australian legislation precluded native title rights being recognised for minerals (Beaumont and von Doussa JJ, 170 ALR 159 at 292, para 541).
In Yarmirr-v-Commonwealth, the trial Judge indicated Northern Territory and Commonwealth legislation prevented native title rights in certain minerals in the Northern Territory (156 ALR 370, para 158). The Judge noted his decision was 'entirely consistent' with the Queensland appeal court's decision in Yanner-v-Eaton; a decision that has since been overturned by the High Court on appeal. The Federal Court's appeal decision in Yarmirr (168 ALR 426), appealed to the High Court, didn't address the issue of crown ownership of minerals and its relationship with native title rights. The High Court decision, handed down on 11 October 2001, also didn't address the issue, with the exception of Justice Kirby (see footnote 46 below).

44. In the trial decision in Ward-v-Western Australia, the Court ordered that the native title parties have rights to use and enjoy the resources of the area and control others use of these (orders, para's 3(e) and (f)); although the Judge also recognised rights created in valid mining leases (Schedule 3).
Justice North, in the (minority of the) appeal decision in Ward-v-Western Australia, stated 'Aboriginal people had rights to exploit resources of the land under traditional law. It is not to the point that the modern means of exploitation of the resources may be difficult from traditional methods … [T]he powers…under the Mining Act 1978 (WA)…confer on the Crown a limited power to administer a system for the orderly exploitation of a community asset. …[T]he conferral of such a power on the Crown does not extinguish native title' 170 ALR 159, para's 829 and 841.

45. Yanner-v-Eaton (1999) 166 ALR 258

46. Yarmirr-v-Commonwealth [2001] HCA 56 (11 October 2001). Note Justice Kirby addressed the issue of native title rights to minerals, saying '[I]t is not enough merely to allow Indigenous peoples to carry out their traditional economic activities without legal protection for their exercise of control and decision-making in relation to developments (including the use of natural resources … [T]he principle of non-discrimination must include a recognition that the culture and laws of Indigenous peoples adapt to modern ways of life and evolve in a manner that the cultures and laws of all societies do' (para 295). Although Justice Kirby was in the minority in other respects, none of the other 3 judgements disagreed with his Honour's comments on this issue.

47. eg. in the United States of America (United States-v-Klamath and Moadoc Tribes 304 US 119 (1938)) and Canada (Delgamuukw-v-British Columbia [1998] 1 CNLR 14, para 122)

48. Commonwealth-v-New South Wales (1923) 33 CLR 1

49. Appeal heard by the High Court in March 2001, decision expected February 2002

50. K Willett Clipping the Wings of Eagles: Artificial Impediments to Mining and Minerals Processing in Australia (1992) Institute of Public Affairs

51. Clipping the Wings, p5

52. Clipping the Wings, p5

53. Clipping the Wings, pp49-51

54. See section 3.1 (above)

55. Previous Western Australian and Queensland attempts to reduce native title rights through State legislation have been held by the High Court to be racially discriminatory and therefore invalid because they contravene the Racial Discrimination Act 1975 (Commonwealth) which implements parts of ICERD. The Queensland scheme was considered in the first Mabo litigation: Mabo-v-Queensland (1988) 166 CLR 186. The Western Australian legislation was passed after the High Court had recognised native title rights. The High Court considered that the alternative rights with which the Western Australian parliament intended to replace native title 'fell short of the rights and entitlements conferred by native title and enjoyment of which is protected by...the Racial Discrimination Act' Western Australia-v-Commonwealth (1995) 128 ALR 1 at 34.

56. The Commonwealth Constitution requires the acquisition of a person's property rights to be 'on just terms': s51(xxxi).

57. See section 3.1 (above)

58. This type of situation was noted by Justice Olney in Yarmirr-v-Northern Territory: '[N]ot all Croker Island residents are members of a relevant estate [or native title claimant] group. Those who are not members are not regarded as having, nor do they claim, any traditional rights within the claim area, and this is notwithstanding that their physical connection with Croker Island may go back several generations' (1998) 157 ALR 320, para 89.
Another reason why not everyone in a community / family may be included in a native title claim arises from the difficulties in intersecting Indigenous law and the (mainstream) Australian legal system. Native title claims can only be made under the Native Title Act if they comply with a myriad of statutory rules that have little reflection in Indigenous custom, for example:

These 'rules' under the Act are generally an unusual way for Indigenous people to perceive their relationship to traditional country, and it is common for any resultant claim to not exactly represent Indigenous perception of their community's relationship with the land. Accordingly, it shouldn't be surprising that any outcomes received by a defined claim group for a defined area under the Act might be distributed according to the particular Indigenous customs for that area and not necessarily identical to the way their interests are explained in the register of the Native Title Tribunal. This may be a frustrating and difficult point for non-Indigenous people to comprehend. One way to try to understand the issue is to imagine the difficulty in having to write down the exact parameters of one's relationship with a parent: what are the boundaries of the relationship, what are the 'rights', how are these 'exercised' etc.

59. The Human Rights Committee confirms that specific cultural rights held by a certain group are 'conferred on individuals belonging to minority groups and [are]...distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant [of Civil and Political Rights]', General Comment 23 The rights of minorities (8 April 1994) paragraph 1.

60. Managing mineral wealth 6 July 2001, p25

61. Baseline Assessment Australia Final Report (draft) (24 August 2001), p28

62. Technical Taskforce on Mineral Tenements and Land Title Applications Discussion Paper (August 2001), p12

63. The Taskforce observed that 'The fundamental reasons for the drop in mineral exploration in recent years have been [1] a period of declining commodity prices, in some cases to record low levels...[2] continued uncertainty in international gold markets...and [3] world exploration expenditure...has steadily declined since [the 1997 record of US$5.2 billion]' Discussion Paper (August 2001), pp11-12

64. see Impact of the right to negotiate on mining in Human Rights & Equal Opportunity Commission Native Title Report (1998), pp107-110. The text refers to a study by the National Institute of Economic and Industry Research that 'concluded that the benefits of mining can be shared with native title holders without impacting significantly on the profits of mining companies or the growth of the Australian economy', p107

65. See http://www.riotinto.com/review/article.asp (accessed 2 November 2001)

66. Newspaper article Your mine and ours [discussing Hamersley's more successful Yandicoogina operation] (August 1998) Financial Review
Hamersley Iron acknowledges the difficulties of earlier practices 'In the 1960s, when Hamersley began its operations, mining companies typically did not consult or engage with Aboriginal people. This approach continued for many years and for Hamersley it culminated in conflict over the Marandoo development in the early 1990's. Since 1992 Hamersley has steadily worked to overcome the problems of the past' Hamersley Iron Social and Environment Report (1999) p18

67. Baseline Assessment Australia Interim Report (6 July 2001)

68. Baseline Assessment Australia Final Report (draft) (24 August 2001), p9

69. Final Report (draft), p17

70. Final Report (draft), p37

71. during interview reported at www.areaminera.com/international/inter/1.act (accessed 27 September 2001)

72. reported in Mining Magazine September 2001, p136

73. Final Report (draft), p18

74. Final Report (draft), p34

75. see section 3.1 (above)

76. Various grants were made by governments on the 'pre-Wik assumption that native title had been extinguished on pastoral leases. [While this may have been a genuine misunderstanding for some governments, it was not the case in Western Australia] It was always evident that the courts were unlikely to conclude that native title had been extinguished by the grant of pastoral leases in that state. What the validation will achieve in Western Australia is that assurance of those grants and interests made...in blatant non-compliance with the Native Title Act', Bartlett, p54
See also 'Measuring the validation provisions against human rights standards' HREOC Native Title Report (199), pp52-55

77. Final Report (draft), p34-35

78. Observations criticising the 1998 Act amendments have been made by three treaty bodies: CERD (24 March 2000, see United Nations document CERD/C/304/Add.101), the Human Rights Committee (28 July 2000, UN document CCPR/CO/69/AUS), and the Committee on Economic, Social and Cultural Rights (1 September 2000, UN document E/C.12/1/Add.50).
See also International Review of Indigenous issues in 2000 from Australia from Human Rights & Equal Opportunity Commission web-site www.humanrights.gov.au/social_justice/nt_issues/index.html

79. see, eg. Human Rights & Equal Opportunity Commission Native Title Report (1996-7)

80. The ICERD Committee observed that there are four areas of particular concern that 'discriminate against Indigenous title-holders under the [1998] amended Act. These include: the Act's 'validation' provisions; the 'confirmation of extinguishment' provisions; the primary production upgrade provisions; and restrictions concerning the right of Indigenous title-holders to negotiate non-Indigenous land uses', CERD Concluding Observations (18 March 1999, United Nations document CERD/C/54/Misc.40/Rev.2, para 7).

81. CERD concluding observation (18 March 1999, United Nations document CERD/C/54/Misc.40/Rev.2, para 11).The Human Rights Committee, following its concerns with the 1998 amendments, recommended 'that the necessary steps should be taken to restore and protect the titles and interests of Indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns', (28 July 2000) UN document CCPR/CO/69/AUS, para 10.

82.Government response to the Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Island Land Fund (8 October 2001).

83. For further information, see Nation in dialogue Human Rights & Equal Opportunity Commission Native Title Report (2000), pp5-46

84. Final Report (draft), p66

85. The CERD Committee observed that 'after [examining] the provisions of the Native Title Act as amended in 1998, the devolution of power to legislate on the 'future acts' regime has resulted in the drafting of state and territory legislation to establish detailed 'future acts' regimes which contain provisions further reducing the protection of the rights of native title claimants that is available under Commonwealth legislation. Noting that the Commonwealth Senate on 31 August 1999 rejected one such regime, the Committee recommends that similarly close scrutiny continue to be given to any other proposed state and territory legislation to ensure that protection of the rights of Indigenous peoples will not be reduced further' Concluding Observations on Australia (24 March 2000, see United Nations document CERD/C/304/Add.101, para 8) See also Human Rights & Equal Opportunity Commission Native Title Report (2000), page 158

86. The main Labour speaker said '[T]he same point...has led us to make a decision to disallow the regimes, because the three regimes [proposed by the governments of Western Australia, Northern Territory, and Queensland] have sought to strip away the right to negotiate. We feel that it fails the test of fairness' Senator Bolkus as reported in Senate 2000, Debates, No.16, p19512.
The main Democrat speaker referred to 'The principles of non-discrimination set out in the Racial Discrimination Act, 1975 and binding on Australia under CERD and under international law [that] must be fully respected' and indicated the conflict between the 1998 Act amendments and the international standards, saying '[T]he native title amendments which were passed in 1998 are invalid and, when eventually they are challenged, will fall over. So one of the fundamental principles that the Democrats base their support for this disallowance motion on is the fact that the State regimes are based on legislation which, at the end of the day, will not hold up', Senator Woodley as reported in Senate 2000, Debates, No.16, p19520
The speaker from the Greens party said 'I will be voting for this disallowance because the regulations brought forward from Western Australian legislation do not uphold the spirit of the legislation that has gone through this parliament in the last decade of the High Court rulings that Indigenous people should have a real say in what is happening on their land', Senator Brown as reported in Senate 2000, Debates, No.16, p19524

87. Final Report (draft), p66

88. Senator Bolkus as reported in Senate 2000, Debates, No.16, p19526

89. Hancock and Roarty do not specifically state their own views, but say 'It has been claimed by a number of industry commentators that...'. To present a position in such a way, without referring to any other viewpoints on a matter, suggests the authors' endorsement of the claims.

 

Last updated 12 June 2002.