2000 Native Title Report summary
By Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner
The reconciliation process has made clear the pressing need for Aboriginal peoples to negotiate freely the terms of their continuing relationship with Australia. The report shows that the recognition of Indigenous people's right to their land and the origins of a nation are inextricably related and that changes to one part of the relationship infer and require changes to the other. Developments in native title law reflect upon the ethical foundations of the nation.(p44)
- Overview
- Nation in Dialogue
- Definition and extinguishment of native title by the common law
- Native title and sea rights
- Indigenous Heritage
- Implementing the ammendments
The 2000 Native Title Report of Dr Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, finds that Australian law of native title, both the common law and statute provide insufficient protection to the relationship that the Indigenous peoples of Australia have with their traditional land and sea country. In Australia, non-Indigenous interests will always prevail over Indigenous interests in the same area. While this discriminatory treatment of Indigenous peoples is of concern what is even more worrying is that, even where minor clashes occur between Indigenous and non-Indigenous rights, native title will be extinguished forever in order to give non-Indigenous interests full enjoyment of their title. Both the common law and the legislation governing native title permit this extreme discrimination to occur.
The Native Title Report analyses in chapter 2 the way in which the construction of native title as a bundle of rights by the majority of the Court in the Miriuwung Gajerrong case renders Indigenous rights vulnerable to discriminatory extinguishment whenever an inconsistency with non-Indigenous rights arises. Thus the erection of a fence on pastoral leasehold land is seen as inconsistent with the exercise of any native title rights and will extinguish native title forever. A more resilient construction is offered in a depiction of native title as a right to traditional land. The deep spiritual relationship between Indigenous people and their land allows native title to survive the grant of many Indigenous interests even though native title rights cannot be exercised for a period of time. In this way Indigenous and non-Indigenous people are able to co-exist on the same land.
The Report in chapter 3 compares the recognition that both the common law and the Native Title Act give to traditional relationships to sea country with the recognition that is given to traditional relationships to land. The decision of the Full Federal Court in the Croker Island case is analysed in the Report as an example of how the legal system imposes severe limitations on the recognition of traditional fishing rights and the spiritual connections that exist between the Indigenous native title groups and the sea. The level of protection provided is inadequate to ensure the survival of Indigenous culture and Indigenous marine economy.
Also discussed, in chapter 4, is the failure of the Native Title Act and the common law to give protection to Aboriginal heritage. While the recognition of native title offered an opportunity to reframe the protection of Indigenous heritage within the broader framework of a human right to enjoy one's culture, governments have squandered this opportunity. The amendments to the NTA take heritage out of the native title framework of rights and relegate it to inadequate targeted legislation that conceives of Aboriginal heritage as a relic of a dying civilisation. The recommendations of the Evatt Report to reform Aboriginal heritage legislation so as to provide better protection to Aboriginal culture have been largely ignored in the proposed amendments to the Aboriginal heritage Act.
The Report, in chapter 5, expresses deep concern at the reduction of procedural rights under the amended Native Title Act. The few opportunities that native title holders have under the Act to advise governments, mining companies and developers of the nature of their traditional links with the land and the adverse impact that might result from specific developments have been interpreted to have little value in the decision-making process. Neither government nor private decision-makers are compelled to take Indigenous concerns into account. Moreover where Aboriginal peoples' procedural rights are completely ignored actions and decisions that adversely affect native title rights are valid nonetheless. The report concludes that procedural rights under the Native Title Act provide only nominal protection to native title holders.
The Report's criticism of the Native Title Act and its interpretation in the courts is based on international human rights norms contained in various treaties to which Australia is a signatory. The principles of equality, self-determination, and respect for cultural differences are discussed and applied to the issues discussed in chapter one of the Report. The committees that oversee the implementation of international human rights treaties have also criticised Australia's failure to provide proper protection to Indigenous relationships to their traditional lands.
In 1999 and 2000 two United Nations human rights treaty bodies criticised the 1998 amendments to the Native Title Act for curtailing the rights of Indigenous people. The Committee on the Elimination of Racial Discrimination (the CERD Committee) found that the amendments to the NTA were discriminatory and recommended that Australia either suspend implementation of the 1998 amendments or amend the NTA anew. The Human Rights Committee (the HRC) also expressed concern at the way in which the amendments limit the rights of Indigenous people contrary to the International Convention on Civil and Political Rights.
Chapter 1 of the Native Title Report details the dialogue throughout 1999 and 2000 between the government, the United Nations and non-government organisations over native title.
In particular the CERD Committee noted:
- The reduced protection of the rights of native title claimants throught the devolution of power to states and territories to legislate over the 'future acts' regime
- the unsatisfactory government response to Committee Decisions 2(54) (March 1999) and 2(55) - the requirement that Australia ".ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5(c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of the ensuring the 'informed consent' of indigenous peoples."
The Human Rights Committee's concerns in relation to native title and the amendments to the NTA were based on Australia's obligations under articles 1 and 27 of the Covenant.
The HRC noted:
- that sufficient action has not been taken in regard to 'the principle of indigenous peoples exercising meaningful control over their affairs'.
The HRC further stated that:
. despite positive developments towards recognising the land rights of the Aboriginals and Torres Strait Islanders through judicial decisions (Mabo 1992, Wik 1996) and enactment of the Native Title Act of 1993, as well as actual demarcation of considerable areas of land, that in many areas native title rights and interests remain unresolved and that the Native Title Amendments of 1998 in some respects limits the rights of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands.
On the basis of this observation the HRC made the following recommendation:
.. that the State party take further steps in order to secure the rights of its indigenous population under article 27 of the Covenant. The high level of the exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends 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.
While the international dialogue on native title has elevated the overall level of understanding within the community and within government of the meaning of equality in relation to Indigenous people it has not resulted in the removal of the discriminatory provisions within the Native Title Act. What has resulted from the dialogue is a shared understanding that equality does not mean treating Indigenous people the same as non-Indigenous people. Native title is a unique interest in land that can only be enjoyed by Indigenous people. Equality requires that this unique interest be given equal protection to that extended to non-Indigenous interests in land.
The reconciliation process has also provided a domestic forum for an ongoing dialogue about Indigenous rights. The Report discusses the various avenues by which a new relationship between Indigenous and non-Indigenous people can be established based on rights.
The analysis shows that the recognition of Indigenous people's right to their land and the origins of a nation are inextricably related and that changes to one part of the relationship infer and require changes to the other. Developments in native title law reflect upon the ethical foundations of the nation. (P44)
Chapter 2: Definition and extinguishment of native title by the common law
The present state of Australian law of native title, both common law and statute, falls well short of international human rights standards. It is incumbent upon both the common law and the legislature to ensure that native title is a vehicle for the protection of Indigenous culture by non-Indigenous law, not a means for its debasement.
Chapter 2 discusses the recognition of native title rights to land under the common law and the Native Title Act.
The Full Federal Court decision in the Miriuwung Gajerrong case had significant implications for the construction of and extent of the right recognised as native title and the relative ease or difficulty of its extinguishment. There is no doubt that the final outcome of the issues before the court in the Miriuwung Gajerrong case will affect the human rights of Indigenous people throughout Australia.
The construction of native title at common law is important because it determines whether Indigenous interests in land are capable of withstanding the grant of non-Indigenous interests created throughout the history of colonisation in Australia. The survival of Indigenous interests in land is central to the survival of Indigenous culture throughout Australia. If native title is constructed as a weak title at common law it will be extinguished by the creation of non-Indigenous interests and the culture that is sustained by that land will end. If native title is constructed as a strong title then it will survive the creation of these interests and Aboriginal culture will endure.(p47)
In the Miriuwung Gajerrong case two constructions of native title were advanced; native title as a bundle of distinct and unrelated rights to perform physical activities on the land or native title as an holistic interest in land upon which other rights, such as rights to perform physical activities, depend. These constructions have different consequences for the strength of the native title recognised and its liability to extinguishment by grant of an inconsistent interest.
Chapter 2 evaluates these constructions of native title by reference to international human rights standards.
The principle of equality requires that the law accord native title holders the same level of protection and security in the enjoyment of title as that enjoyed by non-Indigenous title holders. The extinguishment of Indigenous interests in land for the benefit of non-Indigenous interests in land is racially discriminatory. Consequently, any construction of native title that renders it less liable to extinguishment will better reflect the international human rights standards.
The 'bundle of rights' characterisation of native title is a construction of the right that directly entrenches every small incursion into the right so as to ensure that the accumulation of small incursions finally results in the complete erosion of the substantial right. There is no notion of sovereign power being exercised so as to regulate or curtail Indigenous interests in land. Only extinguishment will result from the creation by the Crown of inconsistent rights. In this way Indigenous culture is inexorably removed, parcel by parcel, to give way to new interests in land as they are created.(p63)
The construction of native title preferred by international human rights standards is native title as an interest in land. Where native title is constructed as an interest in land it is extinguished only as a result of a deeper inconsistency between this underlying right to the land and the enjoyment of non-Indigenous rights. Under the right to land approach non-Indigenous rights are still given priority, but not so as to extinguish native title whenever there is an inconsistency.
This holistic approach to the construction of native title allows room for regulation or suspension of native title, rather than its extinguishment. This is consistent with human rights norms, which require the conceptualisation of native title in a manner that promotes its resilience, rather than its fragility and susceptibility to extinction forever in the eyes of the law.(p63)
Chapter 3: Native title and sea rights
Chapter 3 discusses the recognition of native title rights to the sea under the common law and the Native Title Act. The adequacy of common law and statutory recognition of native title rights to the sea are evaluated in the terms of the international legal principals of equality and non-discrimination requiring the protection of Indigenous culture.
Under both the common law and the NTA the legal recognition of native title rights to the sea is significantly more restricted than recognition of native title rights to land. This difference does not stem from an Indigenous distinction between land and sea rights. Rather, the limitations on recognition of native title in the sea arise from deeply ingrained Western notions of the sea as a commons that cannot be owned.
In the Croker Island Case this restriction on the recognition of sea rights is reflected in the finding of the Majority in the Full Federal Court that only non-exclusive cultural and subsistence rights could be recognised. Like the common law, legislative recognition of native title rights to the sea under the NTA falls short of international obligations. It assumes that there is a fundamental difference between Indigenous rights on land and sea.
The substantive equality approach would recognise that Indigenous people in Australia have a special relationship to sea country that requires special protection. The procedural rights necessary associated with native title rights to sea should not be less than the procedural rights necessary to protect native title rights to land.(p109)
n light of the current state of international law in respect of the rights of Indigenous peoples, and Australia's international legal obligations arising from both customary international law and ratified multilateral treaties, it is incumbent upon Australia to provide positive legal recognition and protection of sea rights for Indigenous Australians. To allow Indigenous sea rights to be relegated to the same legal status as recreational fishermen would be to hold to an outdated and defective doctrine of mare nullius, wholly inconsistent with contemporary international rules and principles.
Chapter 4: Indigenous heritage
The recognition of native title was an opportunity to re-frame the protection of Indigenous heritage within the broader framework of a human right to enjoy one's culture. However, the developments within the common law of native title, and amendments to the Native Title Act have placed heritage protection outside of a rights based discourse. These developments are examined in chapter four of the report.
As a result of the inadequate protection provided through native title, State and Commonwealth heritage legislation remains the most significant form of heritage protection available to Indigenous people. The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was reviewed by Dr Elizabeth Evatt in 1996. While the Act has recently been the subject of a series of amendments the recommendations of the Evatt Report have not been implemented in the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998. The Report documents the way in which the Bill weakens the inadequate protection currently available from the Commonwealth for areas and objects of significance to Indigenous people.
My concerns in relation to the proposed reform of the Commonwealth Heritage Act, as encapsulated in the Bill, can be seen in terms of the human rights principles that firstly require adequate protection of Indigenous culture and secondly effective participation of Indigenous people in the decisions made in relation to their culture.(p43)
Chapter 5: Implementing the amendments
Chapter 5 of the Report assesses the ways in which the implementation of the 1998 amendments to the Native Title Act have borne out the findings of the CERD Committee in 1999 and 2000 that the Act as amended is discriminatory of Aboriginal people. Developments within the reporting period in the judicial interpretation of procedural provisions in the NTA confirm the inadequacy of the Act to provide protection to native title parties where developments are taking place on their land. The implementation of alternative state regimes has illustrated the vulnerability of Indigenous rights when incorporated into state land management programs.
The bodies responsible for representing the interests of native title holders throughout these developments are Native Title Representative Bodies. This chapter finds that, in view of the demands of the re-recognition process and in view of the additional functions bestowed upon them under the amendments to the Native Title Act, Representative bodies are critically under-resourced. The result of these developments is that native title interests are inadequately protected.
The amendments to the Native Title Act have been in operation for over two years. In relation to the provision of procedural rights the courts have confirmed the failure of the Act to provide appropriate protection to native title. Governments control over native title continues to devolve to state governments who are authorised under the amendments to implement regimes that provide less protection than that provided under the Commonwealth Act. Several UN treaty committees have found these amendments to be discriminatory and in breach of Australia's treaty obligations. Unless the discriminatory provisions of the NTA are repealed Australia will continue to be condemned by human rights bodies in respect of its treatment of Indigenous people.(p164)
Last updated 7 October 2003.
