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Native Title Report 2002: Implications of Miriuwung Gajerrong & Wilson v Anderson

Chapter
4: Implications of Miriuwung Gajerrong and Wilson v Anderson

Miriuwung
Gajerrong

Wilson v Anderson


The reasoning of
the High Court in Wilson v Anderson [1] and Miriuwung
Gajerrong
[2] provides a comprehensive analysis
of the operation of the Native Title Act 1993 (Cwlth) (‘NTA’).
It is detailed and legally complex. In discussing NSW crown land legislation,
Justice Kirby made the following observation about the NTA and the native
title system:

The impenetrable
jungle of legislation remains. But now it is overgrown by even denser
foliage in the form of the Native Title Act...and companion State legislation…
The legal advance that commenced with Mabo v Queensland [No 2],
or perhaps earlier, has now attracted such difficulties that the benefits
intended for Australia’s indigenous peoples in relation to native
title to land and waters are being channeled into costs of administration
and litigation that leave everyone dissatisfied and many disappointed.
[3]

An analysis of international
human rights standards to which Australia is a signatory reveal that recent
findings of the High Court are likely to impede, if not wholly disrupt,
the rights of Indigenous Australians to enjoy and practice their culture
and exercise their right of self determination and effective participation.
This chapter discusses mechanisms that, in accordance with human rights
standards, may provide a level of recognition and protection to the rights
and interests of Indigenous Australians, notwithstanding the failure of
the native title system to do so. In doing so, this chapter discusses
broadly the finding of extinguishment in Wilson v Anderson and
more specifically an aspect of extinguishment within the Miriuwung
Gajerrong
decision that is expected to affect a significant area of
land within Western Australia.

The Wilson v Anderson
decision applies to leases throughout the Western Division and in those
areas is likely to extinguish native title. In addition, other leases
within the Western Division are specified in the NTA and will also extinguish
native title. It is expected that these two mechanisms of extinguishment
will affect most of the Western Division, covering 42 per cent of New
South Wales.

In Western Australia,
the Miriuwung Gajerrong decision addressed extinguishment and partial
extinguishment over a range of different tenures. The wholesale extinguishment
of native title on nature reserves, as in other findings of extinguishment,
has important human rights implications. However, extinguishment on nature
reserves is also at odds with contemporary conservation approaches, sustainability
and even principles within the NTA.

As Justice Kirby
stated, the native title system which followed the legal advance that
began with Mabo [4] has disappointed many. Yet,
the Commonwealth continues to defend the 1998 amendments and disregards
calls for legislative change. Other strategies must be sought to address
the failure of the NTA to provide adequate acknowledgement and application
of the human rights of Indigenous Australians.

Miriuwung
Gajerrong

The Miriuwung
Gajerrong
decision addressed significant native title issues relating
to the recognition of rights and the process for determining extinguishment
under the NTA. These issues have been comprehensively addressed in other
chapters of this report and will not be re-examined here. The purpose
of this section is to discuss the human rights implications of particular
findings of extinguishment and some of the emerging implications for the
administration of native title by agencies and governments following Miriuwung
Gajerrong
.

The long awaited
Miriuwung Gajerrong decision has provided clear guidance as to
the operation of the amended NTA and principles of extinguishment. The
decision examined different tenures, a range of rights including fishing
rights, the protection of culture and spiritual knowledge, and also provided
guidance for the determination of partial extinguishment. The Miriuwung
Gajerrong
decision makes clear the operation of the native title system
and in many respects is disappointing from a human rights perspective.

Human rights concerns
regarding the amended NTA have been the focus of previous Native Title
Reports and have also been the focus of criticism from international human
rights committees. These concerns and criticisms have not led to any amendments
to the NTA. Yet, despite the shortcomings of the NTA and the recurring
failure of the native title system to recognise and protect Indigenous
interests, Aboriginal and Torres Strait Islanders maintain their relationship
to and identity with their traditional country. This is particularly true
of nature reserves and national parks, where development of the land has
been limited. It is within this context that I present a human rights
framework, not directed to the Commonwealth seeking amendments to the
NTA, but to the Western Australian Government seeking a policy response
that is in accordance with human rights standards.

The finding of extinguishment
on reserves in the Miriuwung Gajerrong decision, and in particular
within those reserves created for the purpose of nature conservation,
was unexpected. This finding is contrary to the principle of non-extinguishment
in conservation areas within the NTA; contrary to human rights standards
of cultural protection and self determination; and contrary to contemporary
international conservation approaches and sustainability principles supported
by the Western Australian Government. Yet the High Court found, in Miriuwung
Gajerrong
, that the operation of the NTA results in the extinguishment
of native title in nature reserves.

Notwithstanding the
incongruity of this finding, I believe it offers an opportunity to re-appraise
and respond to the native title system in a way which provides for the
genuine recognition and protection of Indigenous interests in Western
Australia.

Extinguishment
– Native Title in Nature Reserves

In Miriuwung Gajerrong
the Court examined the effect of extinguishment arising from the creation
of reserved areas. Under the Land Act 1933 (WA) (‘Land Act’),
a reserve could be created for the conservation of indigenous flora and
fauna. Under the Wildlife Conservation Act 1950 (WA) ‘nature
reserve’ means land reserved under the Land Act. Within the claim
area a number of reserves had been gazetted for different purposes, including,
public purposes, conservation, recreation, parkland, agricultural research,
gravel, quarry and drainage purposes. Within the claim area nature reserves
include:

  • Wildlife sanctuary
    – Reserve 29541
  • Conservation of
    flora and fauna – Reserve 31967, 34585 and 42155
  • Mirima National
    Park – Reserve 37883

Each of the nature
reserves is currently vested in the National Parks and Nature Conservation
Authority. [5] The Court found that native title was
extinguished on these areas.

The extinguishment
reasoning focused on the legal mechanisms for creating and vesting a reserve.
Much of the land within the claim area was or has been subject to a reserve
under either the Western Australian Land Regulations 1882, Land
Act 1898
or Land Act. The High Court found that the making of a reserve
did not wholly extinguish [6] all native title rights
and interests. However:

… the exercise
of that power was inconsistent with any continued exercise of power
by native title holders to decide how the land could or could not be
used… this step was not, however, necessarily inconsistent with
the native title holders continuing to use the land in whatever way
they had, according to traditional laws and customs, been entitled to
use it before its reservation. [7]

That is, the making
of a reserve did not extinguish all native title rights and interests
but it was inconsistent with the right of native title holders to decide
how the land could or could not be used.

While the creation
of a reserve did not wholly extinguish native title rights and interests,
the Court did find that the vesting of a reserve would wholly extinguish
native title:

…because the
vesting under s33 of the Land Act 1933 of a reserve in a body or person
vests the legal estate in fee simple to the land in that body or person
and obliges the body or person to hold the land on trust for the stated
purposes, rights are vested in that body or person which are inconsistent
with the continued existence of any native title rights or interests
to the land
. [8]

That is, native title
was extinguished on any reserved land that was vested in a body
or person.

Effect
of the Racial Discrimination Act 1975

The Racial Discrimination
Act 1975
(Cwlth) (‘RDA’) performs an important function
in relation to the operation of the NTA. If, after the commencement of
the RDA in 1975, the Crown has enacted or amended legislation, granted
or varied licences, created or extinguished any interest in relation to
land or waters or created a contract or trust in relation to land or waters
[9] and this act discriminates against native title
rights and interests under the RDA, these acts would be invalid. However,
under the validation and confirmation provisions of the NTA, those acts
that were invalid because of the operation of the RDA are validated. In
some instances, this validation process allows for non-extinguishment
of native title.

If a reserve were
vested before the RDA came into operation, the vesting would be valid
and native title extinguished. If the vesting occurred after the operation
of the RDA, questions arise as to whether the act was invalid under the
RDA and would be validated under the NTA. [10]

The Court found that
on its face the vesting of reserves under s 33 of the Land Act did not
single out native title rights and interests in a discriminatory manner.
However, the Land Act did provide for compensation for loss of rights
and interests of resumed land and so compensation for the loss of rights
and interests under the Land Act is conferred on native title rights and
interests.

The Court reasoned
that ‘at the time of vesting a reserve, the only interests in the
land which could be affected by the vesting and the holder of which would
not be entitled to compensation would be native title rights and interests’.
[11] However,
under the analysis of discrimination in Gerhardy [12]
by Mason J, the vesting of a reserve after 1975 ‘would be valid
but the RDA would supply to native title holders a right of compensation
for that which is lost upon vesting’. [13]

Despite the High
Court’s finding that the extinguishment of native title by the vesting
of reserves was valid and extinguished native title apart from the NTA,
the Court gave consideration to the operation of the NTA. Section 23B
of the NTA provides the mechanism for the confirmation of extinguishment.
[14] Under this section a ‘previous exclusive
possession act’ which wholly extinguishes native title covers a range
of acts. Subsection 3 provides the definition for the extinguishment of
native title by the vesting of a reserve:

(3) If:

(a) by or under
legislation of a State or Territory, particular land or waters are
vested in any person; and

(b) a right of
exclusive possession of the land or waters is expressly or impliedly
conferred on the person by or under the legislation; the vesting is
taken… to be the vesting of a freehold estate over the land or
waters.

This analysis confirms
the extinguishment of native title rights and interests over reserves.
However the Court made some additional observations about the operation
of the NTA, stating that in considering the operation of s23B attention
must also be given to sub-sections 9A and 9C.

Sub-section 9A of
NTA s23B allows that if a previous exclusive possession act is the grant
or vesting for the establishment of a national, state or territory park
for the purpose of preserving the natural environment of the area, then
the vesting would not be a previous exclusive possession act. Yet following
this analysis the Court concludes:

Nevertheless, the
vesting of a right of exclusive possession being valid, the vesting
extinguished all native title rights and interests in the land.

Similarly, sub-section
9C of NTA s23B provides that if a vesting in relation to land or waters
is to or in the Crown in any capacity or statutory authority, that act
is not a previous exclusive possession act, unless apart from the NTA,
it extinguishes native title. In relation to nature reserves, these areas
were vested in the National Parks and Conservation Authority and it is
likely that the Court would find that this Authority was an emanation
of the crown and hence Sub-section 9C would apply. However, the Court
found that because the vesting of a nature reserve was valid and extinguished
native title apart from the NTA, vesting was valid and effective to extinguish
native title.

The Court’s
finding that extinguishment arising from vesting of reserves was valid,
in relation to nature reserves, ensures that two provisions within the
NTA that would have protected native title from extinguishment could not
be applied.

Nature Reserves
in Western Australia

Within the Miriuwung
Gajerrong
claim area, vested reserves cover just over 30 per cent
of the claim area. [15] Native title is now wholly
extinguished in these areas. However, findings of extinguishment in Miriuwung
Gajerrong
are likely to apply to other reserve areas in Western Australia.
This has significant implications for native title in conservation areas
throughout Western Australia. Currently the conservation estate in Western
Australia covers 22 million hectares, approximately 8 per cent of the
State, [16] with most of the conservation estate being
created by the reservation and vesting of land. Hence the extinguishment
of native title over large areas within the conservation estate will result
from the Court’s decision.

In a recent analysis
by the Ngaanyatjarra Council [17] two areas were identified
as being affected by the findings of Miriuwung Gajerrong in relation
to nature reserves, those of the Martu and Gibson Desert native title
claimants.

Martu

The Martu native
title claimants lodged a claim over an extensive area of land in the Eastern
Pilbara. The claim covers an area of 250,000 square kilometers and within
this area the Rudall River National Park covers an area of 25,000 sq kilometers.
The National Park was created in 1977 and is of particular ecological,
cultural, physical, ethnographic and practical significance to the Martu.
Within the National Park are also two of the main communities for that
area – Pangurr and Punmu. On Ngaanyatjarra’s analysis, the affect
of the Miriuwung Gajerrong decision will be the wholesale extinguishment
of native title in the area covered by the National Park.

On 27 September 2002,
the native title of the Martu people was recognised by consent determination.
However, just prior to the determination being made by the Federal Court,
the Rudall River National Park was excluded from the determination to
take account of the Miriuwung Gajerrong decision. The Rudall River
National Park is an area of special significance to the Martu. Prior to
the Miriuwung Gajerrong decision it was included in the consent
determination negotiated with the Western Australian government. Following
its exclusion from the determination the parties intend to negotiate a
mutually acceptable joint management arrangement for the national park
outside of the native title process. [18]

Gibson
Desert native title applicants

It is likely that
the Gibson Desert native title claimants will be similarly affected by
the findings of the Miriuwung Gajerrong decision. Their claim is
for an area of land to the south-west of Kiwirrkurra and west of the Central
Reserves, close to the middle of WA. Unlike the Martu, the nature reserve
comprises 65 per cent of the claim area of the Gibson Desert native title
claimants and is likely to be extinguished following the decision in Miriuwung
Gajerrong
. This nature reserve was gazetted in 1977 without any consultation
with the traditional owners for the area.

The
Gibson Desert Nature Reserve: Traditional Owners and Cultural
Landscape
[19]

The lands of
the Gibson Desert Nature Reserve lie within the wider Western Desert
ethnographic area. Traditionally, people of this vast region, which
stretches from as far as what now is Balgo in the north to Tjuntjuntjara
and Yalata in the south, and from what now is Jigalong and Wiluna
in the west to Amata and Indulkana in the east, spoke dialects of
a single language, and shared a similar socio-cultural system.

The Western
Desert as a whole, and the Nature Reserve more particularly, is
an area of low rainfall and long summers. And while numerous species
of plants and animals are adapted to the relatively harsh conditions,
the overall biomass of the countryside is low. That people were
able to get by at all on such limited water and food resources (and
as it happens they seem to have done much better that might at first
be expected) was because their numbers, like those of the plants
and animals they relied upon, were relatively few – as low
as one person per 100 square kilometres, or even lower still. They
also for the most part lived in small groups, often consisting of
no more than a man, his wife or wives and their children. More than
this, the groups kept on the move. They frequently shifted camp,
both because they had depleted resources in one area and to take
advantage of resources in another area, and sometimes travelled
across distances as great as 500 kilometres to escape extended drought
conditions and food shortages.

However, although
people were few on the ground and widely scattered, groups were
never isolated. Kin (and affines) were found in neighbouring and
more distant groups. In fact, people were surrounded by kin, and
interacted with one another first and foremost as kinspersons. Beyond
this, groups periodically came together to stage rituals, such as
those to replenish species and initiate youths into manhood, believed
to have been first performed, and then passed on to humans, by the
great creative ancestors of the Dreaming.

It should not
be thought that groups wandered aimlessly or randomly about the
Western Desert. The evidence suggests that people saw themselves,
and were seen by others, as linked to and responsible for somewhat
limited stretches of countryside. They tended to frequent their
own countries, or at least the more immediate areas of these countries.

There were
a variety of reasons for this: some ‘natural’, some ‘supernatural’.

People knew
the location and availability of resources close to home; at the
same time, they also knew the mythical landscape, so knew where
they might freely venture, where they had to be cautious, where
they must not go, etc. Moreover, it was their duty to look after
their country in both its natural and supernatural guises. They
had to protect sites, occasionally burn off country, perform necessary
rituals, and so on. In ‘stranger country’ they would be
less certain or even ignorant of where resources could be found.
Not only this, they would be in country were they might very well
inadvertently provoke supernatural powers and sanctions.

Some traditional
owners and their ancestors began moving from the western and southern
portions of the Nature Reserve in the 1940s and 50s, eventually
arriving and taking up a more sedentary and certain lifestyle in
and around Wiluna, Laverton and Warburton. In many cases, it is
not clear exactly why these moves were made (those who recall making
them were only children at the time). However, one family’s
decision to go into Warburton centred on the parents’ desire
to ensure their son’s initiation in a world where neighbours
further to the west and south already had gone into settlements.

At the same
time, a number of traditional owners and their ancestors continued
residing in and around the Nature Reserve well into the 1960s; a
few continued a traditional subsistence existence in the area into
the 1970s. These were some of the people who in the mid-1960s were
met by Western Australian Native Welfare Officers and Native Patrol
Officers working with the Woomera Weapons Research Establishment,
recorded by the anthropologists Professor Robert Tonkinson and Professor
Richard Gould, and filmed by the Commonwealth Film Unit for the
People of the Australian Western Desert series. Indeed, these
traditional owners, specifically some of the Campbells, Carnegies,
Morgans and Wards, came to be held out as archetypical hunter-gatherers,
widely depicted, described and discussed.

Some of these
traditional owners vividly recall, and sometimes animatedly relate,
the tales of their first encounters. These were not simply the moments
when they first met non-Aborigines, these were the occasions when
they did such things as ran screaming from the devil noise of Land
Rovers, tried to use flour for body paint instead of food, put pants
on backwards or, more laughably yet, slipped on dresses when they
should have been putting on pants.

In the end,
these people too went into settlements. Some of them say they, like
some of those who preceded them, went in so initiations could proceed;
others say they went in to find spouses; others still say they went
in to visit kin and affines who had gone before them. Whatever the
case, it was at this time that their lives began altering dramatically
– certainly much more dramatically than they had prior to this
point. But while traditional owners’ lives, and their socio-cultural
system, have undergone change, the lives of many of them remain
heavily shaped and constrained by traditional beliefs and values,
and acted out very much in line with traditional behaviours.

At a general
level, most of the younger traditional owners are multi-lingual,
speaking both English and the Western Desert language. At the same
time, many of the older traditional owners have limited English,
generally conversing in the Western Desert language. Young and old
alike remain deeply embedded in what still is a largely kin-based
society. They continue relating with and to one another as kinspeople,
and marrying according to prescriptive rules. And while years of
mission experience has imbued traditional owners with elements of
Christian belief and practice, most traditional owners also hold
the Dreaming, and its accompanying ritual system, as fundamental,
both to their lives and the wellbeing of the ongoing socio-cultural
order of which they are part. More than this, senior generation
traditional owners are of the view that it is imperative their and
their ancestors’ beliefs and practices, particularly as these
relate to ‘public’ and to gender based, i.e. men’s
and women’s, knowledges of sites and Dreamings, be maintained
and passed on to members of the younger generation.

At a more grounded
level, when traditional owners moved to settlements they by no means
severed their connections to their countries. Traditional owners
who had been born and grew up in countries on and around the Nature
Reserve under traditional circumstances identified, and were identified
as, people from and for those areas – just as they had been
in earlier years. It seems they regarded themselves and their families
as always and continually connected to the countries of the Nature
Reserve area. As far as they know, this is where their ancestors
before them had been born and lived out their lives.

Even when they
were not physically present on the lands of the Nature Reserve,
they actively continued looking after them. They had with them sacred
objects directly associated with Dreamings of the Nature Reserve,
they performed rituals associated with Dreamings that cross the
Nature Reserve, they passed on their knowledge of the secular and
sacred landscapes of the Nature Reserve to their children and grandchildren.

By the late
1970s – early 1980s, some traditional owners were
actively seeking the establishment an outstation in or near their
homelands. In recent years, they have succeeded in developing a
community at Karilywara (also known as Patjarr), and have re-formed
the conditions for direct physical connections to the Nature Reserve.
From here they, and fellow traditional owners visiting Karilywara,
regularly access and interact with their traditional countries.
On the one hand, they do such things as put in bush tracks, clean
rockholes, visit “funeral” or burial places, burn off
grassy areas, collect bush tucker, pursue game and share out the
proceeds of the hunt, and sing the songs for the country. On the
other hand, and most vitally, they show their descendants around
the Nature Reserve area, teach them about its water and food resources,
and introduce them to its Dreamings and Dreaming places. That is,
through their visits to and presence and activities on the land,
through their very real and ongoing engagements with the land, its
places and its Dreamings, they at one and the same time look after
the country and its sites and keep its Law alive.

Senior members
of this body of traditional owners indicate that it is not by accident
that they approach, tap, monitor and in a sense transmit the country
in this manner. As they see it, this is how they must relate to
their countries. This, they say, is how their own parents and grandparents
taught them to do things – this in their world view is how
things always have been done.

Although the
lands of the Nature Reserve may appear to outsiders to be but a
part of a wider, harsh, inhospitable, even frightening, landscape,
traditional owners see them as welcoming, and speak of the Nature
Reserve and its surrounds as ‘good country’, and as ‘home’.
They proudly and forcefully announce that it is their country (the
expression ngayuku ngura [‘my country’] being an often
heard one), and that they are looking after it as they should and
must do according to Aboriginal Law.

The effects of this
aspect of the Miriuwung Gajerrong will not be confined to the Martu
and Gibson Desert people. Reserves are scattered throughout Western Australia
and the implications of this aspect of the Miriuwung Gajerrong
decision are likely to be much wider than these examples reveal.

A Human
Rights Appraisal

The exercise
and enjoyment of culture

The findings of extinguishment
in Miriuwung Gajerrong have serious implications for the enjoyment
by Aboriginal people in Western Australia of rights under article 27 of
the International Covenant on Civil and Political Rights (‘ICCPR’)
and Article 1 of ICCPR and the International Covenant on Economic,
Social and Cultural Rights
(‘ICESCR’).

Article 27 of ICCPR
requires:

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 practice their own religion or, to use their own language.

Where land is of
central significance to the culture of a group, then the right to enjoy
and maintain a distinct culture includes the protection of Indigenous
rights and interests in land. The protection of these interests also reflects
the special value of an Indigenous culture to the broader society of which
it is an important part. Such value is an intrinsic part of the conservation
estate as many of these areas are protected not only for their environmental
features but also for their cultural significance. [20]

Native title recognition
provides an important mechanism for the exercise and enjoyment of culture.
That is, the cultural characteristics of a native title holder group are
imbedded within native title recognition, as the traditional law and custom
define the nature and extent of native title rights. Hence, the recognition
and protection afforded by the NTA while constrained in many ways, provides
an important legal measure for the protection and enjoyment of culture.

However, the extinguishment
of native title withdraws the recognition and protection of cultural interests,
which define the nature and extent of native title rights. The extinguishment
of native title rights and interests has significant implications for
the exercise and enjoyment of culture. Generally, the recognition of native
title rights and interests ensures that native title holders are able
to maintain and enjoy their cultural interests. That is, native title
enables people to be on country, to conduct cultural activities including
hunting, collecting bush tucker and ceremonies. It also provides mechanisms
for the protection of these rights and interests from future development.
Extinguishment of native title rights deprives native title holders of
these rights of exercise and protection and consequently fails to satisfy
the requirement under article 27 that Indigenous peoples have the right
to enjoy their culture and all its elements, particularly those that relate
to land. Such deprivation will not result in the ‘extinguishment’
of Indigenous cultures – Aboriginal people in Western Australia will
continue to practice their law and custom, to the extent they are able
without the recognition and protection of their cultural interests under
the NTA.

However, article
27 also requires that States take positive measures to ensure people are
able to exercise rights under this provision. The NTA was drafted in consideration
of international human rights, [21] including the ICCPR,
but in some instances has failed to uphold key provisions required by
these standards. Yet the responsibility remains, despite the failings
of the NTA, for states [22] in recognising the unique
value and importance of Aboriginal people to implement positive legal
measures of protection [23] to the extent that:

… a State
party is under an obligation to ensure that the existence and the exercise
of this right is [sic] protected against their denial or violation.
Positive measures of protection are, therefore, required not only against
the acts of the State party itself, whether through its legislative,
judicial or administrative authorities, but also against the acts of
other persons within the State party. [24]

Self determination

The right of self
determination is required under Article 1 of the ICCPR and ICESCR, and
the principle of effective participation emanating from this right is
significant, particularly in relation to nature reserves. Article 1 states:

All peoples have
the right of self determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social
and cultural development.

The right of self
determination supports and promotes the development of Indigenous communities.
The recognition of native title rights and interests within nature reserves
may have provided native title holders the opportunity to pursue their
economic, social and cultural development. Conservation areas in particular,
if appropriately managed, can be especially well suited to development
that allows Indigenous peoples to build a stronger social and economic
base through land and resource management, further develop communities
through employment, training and education and enable the ongoing practice
and exercise of cultural interests.

In the Northern Territory
a number of examples exist of conservation areas that are currently administered
through a joint management relationship. Broadly, this relationship is
designed to enable Indigenous land holders to: participate in the management
of the park; continue traditional activities and; provide for training
and employment. While the shortcomings of this approach are increasingly
becoming apparent [25] they are an important first
model of the management relationship between Indigenous land holders and
a conservation agency. Importantly, an analysis of existing joint management
relationships can provide a useful guide to developing better and more
equitable management arrangements between Indigenous land holders and
conservation agencies.

Effective
participation

An important feature
of the right to self determination, which is also drawn from article 5
of the International Convention on the Elimination of All Forms of
Racial Discrimination
[26] (‘ICERD’)
and article 27 of ICCPR, is the principle of ‘effective participation’.
This requires that Aboriginal people have the right to determine their
own status and to effectively participate in decisions relating to their
traditional country. The Committee on the Elimination of Racial Discrimination
(‘CERD’) issued a General Recommendation on Indigenous Peoples,
which recommends that States:

…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.
[27]

This principle has
two important implications for states. A human rights approach requires
that policy and government decisions relating to the interests of Indigenous
people be made only with their effective participation. And decisions
directly affecting the traditional country and interests in that country
of Indigenous people should be made only with their informed consent.
Such an approach is not only appropriate from a human rights perspective
but also assists in building a relationship of trust between Indigenous
peoples and the state.

More specifically
the Human Rights Committee has stated:

With regard to
cultural rights protected under [ICCPR] 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… 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. [28]

The NTA may be described
as a ‘positive legal measure of protection,’ but failure to
obtain this protection through either extinguishment or non-recognition,
leaves the rights of many Indigenous peoples unprotected and without the
opportunity to effectively participate in decisions relating to these
interests. This is true of the rights and interests of Aboriginal people
in Western Australia, to the extent that their land is covered by a vested
reserve.

An opportunity exists
for the Western Australian Government to respond to the findings of extinguishment
in relation to nature reserves in a manner informed by a human rights
approach. Such an approach is consistent with and required by principles
of sustainable development.

Sustainable
Development

In 1972 the Declaration
of the United Nations Conference on the Human Environment
presented
principles for the preservation and improvement of the human environment.
These principles promoted respect for fundamental rights of freedom, equality
and adequate conditions of life, and improvement and preservation of the
earth’s natural resources. The 1972 Declaration initiated an ongoing
assessment of international environmental and social issues, revealing
worsening circumstances of environmental degradation and social instability
throughout the 1970s and 1980s. In 1987, identifying the ongoing destruction
of eco-systems and acknowledging the implicit threat to world security
arising out of an impending resource shortage and environmental degradation,
the World Commission on Environment and Development [29]
first phrased the term ‘sustainable development’. Sustainable
development was described as development which ‘meets the needs of
the present without compromising the ability of future generations to
meet their own needs’. [30]

In 1992 the United
Nations Conference on Environment & Development was held in Rio de
Janeiro. The Rio Conference, was driven by the ‘sustainable development’
principle and Agenda 21 was drafted to provide practical guidance for
the implementation of sustainable development. Key Agenda 21 principles
acknowledged:

Human beings are
at the centre of concerns for sustainable development. They are entitled
to a healthy and productive life in harmony with nature. [31]

And that:

In order to achieve
sustainable development, environmental protection shall constitute an
integral part of the development process and cannot be considered in
isolation from it. [32]

Also declared was
the importance of Indigenous peoples in the process of sustainable development
and the requirement that the cultural interests and effective participation
of Indigenous peoples be recognised:

Indigenous people
and their communities and other local communities have a vital role
in environmental management and development because of their knowledge
and traditional practices. States should recognise and duly support
their identity, culture and interests and enable their effective participation
in the achievement of sustainable development. [33]

The Rio Conference
significantly acknowledged the paramount role of social and economic development
in efforts to protect the environment. In its earlier form, sustainable
development focused largely on conservation and environmental protection.
Following Rio, there has been growing recognition that sustainable development
relies on three interdependent and reinforcing ‘pillars’ –
economic development, social development and environmental protection.
[34]

Since the Rio Earth
Summit in 1992, sustainable development has emerged as a new paradigm
of development, integrating economic growth, social development and
environmental protection as interdependent and mutually supportive elements
of long-term development. Sustainable development also emphasises a
participatory, multi-stakeholder approach to policy making and implementation,
mobilizing public and private resources for development and making use
of the knowledge, skills and energy of all social groups concerned with
the future of the planet and its people. [35]

In 2002, the World
Summit on Sustainable Development was held in Johannesburg. The conference
began with sobering statistics:

… today, 80
countries have lower per capita incomes than they did at the time of
the Rio conference. Threats are higher than ever to natural resources
such as forests, fish, and clean water and air. The richest one-fifth
of the population, including wealthy minorities in poor countries consume
energy and resources at a rate that providing a comparable lifestyle
to the rest of the world’s population would require the resources
of four planets the size of Earth. [36]

Secretary General
of the United Nations, Kofi Annan also acknowledged that the results since
the Rio Conference have been disappointing – ‘in some respects
conditions are worse than they were 10 years ago’. It was recognised
that the approach to development had been piecemeal, with ongoing threats
to the environment through unsustainable consumption and production. [37]

The Johannesburg
Declaration on Sustainable Development
[38] (‘Johannesburg
Declaration’) declared that:

… we assume
a collective responsibility to advance and strengthen the interdependent
and mutually reinforcing pillars of sustainable development – economic
development, social development and environmental protection –
at local, national, regional and global levels. [39]

And further:

Recognising that
humankind is at a crossroad, we have united in a common resolve to make
a determined effort to respond positively to the need to produce a practical
and visible plan that should bring about poverty eradication and human
development. [40]

Clearly a key feature
of the Johannesburg Declaration, and contemporary international analysis
of sustainable development, is the eradication of poverty and the development
of communities in conjunction with environmental protection. This is reinforced
in the Johannesburg Declaration and identified as one of the key challenges
to the implementation of sustainable development. [41]

The Sustainable Development
Conference also focused on the growing economic disparity between the
rich and the poor. While its focus was largely directed towards developed
and developing States, within Australia similar disparities exist. Indigenous
Australians, living within a ‘rich country’, continue to suffer
life chances equivalent to those living in ‘poor countries’.
At an international level, sustainable development is considered an approach
that may address such disparities. It may also usefully inform strategies
to address poverty eradication within Indigenous communities within Australia.

Sustainable development
approaches rely also on respect for fundamental human rights [42]
and recognise the vital role of Indigenous people in sustainable development.
[43] Hence, a sustainable development approach within
Australia requires respect for Indigenous rights as afforded under international
law. The operation of the NTA in many ways fails to uphold international
law principles and functions in a way which deprives native title holders
of the enjoyment of their rights under international law.

Had native title
holders rights not been extinguished in nature reserves in WA, these areas
may have provided native title holders and conservation agencies an opportunity
for the sustainable use of these areas and for the development of local
communities. Rather, extinguishment of native title within these areas
deprives native title holders of the protection and enjoyment of their
cultural rights and the opportunity for meaningful participation in the
sustainable development of their traditional lands and resources.

Sustainability
[44] in Western Australia

In Western Australia,
the current Government has pledged to embrace sustainability. In ‘Focus
on the Future: Opportunities for Sustainability in Western Australia’,
the consultation paper launching the State Sustainability Strategy, Premier
Gallop stated:

For many years
we pursued economic, environmental and social goals in isolation from
each other. We have come to recognise that our long-term well-being
depends as much on the promotion of a strong, vibrant society and the
ongoing repair of our environment as it does on the pursuit of economic
development. Indeed, it is becoming obvious that these issues cannot
be separated.

The challenge is
to find new approaches to development that contribute to our environment
and society now without degrading them over the longer term… sustainability
offers a process whereby these goals can be achieved simultaneously
without trade-offs or compromise. [45]

As part of the sustainability
strategy, a Sustainability Policy Unit was created within the Department
of Premier and Cabinet. The Policy Unit is responsible for coordinating
the development of the State Sustainability Strategy, increasing awareness
of sustainability issues, and researching international sustainability
strategies that may have relevance in Western Australia. [46]
An important feature of the State Sustainability Strategy is the commitment
to an integrative or holistic approach. [47] To facilitate
a ‘holistic approach’, the Policy Unit has sought information
on ‘priority issues’, ranging from sustainable building and
construction methods to carbon emissions and ecotourism. Importantly,
Indigenous Sustainability issues are also addressed. [48]

The key strategy
set out in the Indigenous Sustainability paper emphasises the development
of regional governance strategies. [49] While regional
governance structures are fundamental to sustainability so too are inherent
Indigenous rights, as expressed in international law and articulated within
a human rights approach. It is therefore essential that Indigenous rights,
particularly those associated with Indigenous peoples’ relationship
to land, be included within any strategy for sustainability in Aboriginal
communities in WA. The paper acknowledges this importance:

Central to any
consideration of sustainability for Indigenous Western Australians is
the recognition and determination of inherent native title rights, alongside
negotiated capacity building programs, negotiated delivery of services,
the building of infrastructure, and access to economic opportunities
via universally recognised citizenship rights enjoyed by all Western
Australians. [50]

Importantly, the
Gallop Government has made a strong commitment to ‘a new approach
involving a partnership between governments and communities that will
facilitate the development of self reliance for Indigenous Australians’.
[51] The commitment of the Western Australian Government
to sustainability in WA is an important first step. The findings of extinguishment
of native title in Miriuwung Gajerrong present a significant challenge
to this commitment.

Extinguishment
and sustainability

The ongoing relationship
of Aboriginal people in Western Australia to their traditional country
is an important consideration for sustainability strategies within Indigenous
communities. In fact, land has been the single most important feature
of Aboriginal sustainability for tens of thousands of years.

It is now thought
that Aborigines have occupied Australia for at least 50,000 years.

Yet, it is not
widely acknowledged that they developed, adapted and refined their resource
use and management skills over this time. Residence patterns, foraging
practices and technology were key aspects of Aboriginal use and management
of the landscape. The population density and distribution of Aboriginal
groups continually changed, partially in response to ecological variations.
Through these shifting settlement and mobility patterns, Aboriginal
people managed the impact of their populations, therefore avoiding the
over-exploitation of localised areas of the environment. [52]

Clearly, the sustainable
use of land has been a concept familiar to Aboriginal communities for
generations. Land provides Aboriginal people in Western Australia with
the physical, religious, cultural, social and economic building blocks
of their communities. To embark on a contemporary strategy of sustainability
without this key component of Indigenous culture is unlikely to be successful.
The extinguishment of native title rights and interests in Miriuwung
Gajerrong
is in many ways incongruous with strategies of sustainability
within Aboriginal communities in Western Australia. Extinguishment of
native title within the conservation estate of Western Australia, in particular,
deprives Aboriginal people of a meaningful opportunity for the sustainable
development of their communities through the use of their traditional
lands.

Land and resource
management provide an important opportunity for the development of Aboriginal
communities in Western Australia. While not a panacea for Aboriginal disadvantage,
these opportunities arising from traditional country present a legitimate
and meaningful source of development for Aboriginal communities.

The opportunity exists
for the Western Australian Government to respond to the extinguishment
findings in Miriuwung Gajerrong in a way which accords with human
rights standards and principles of sustainability. Given the existing
commitment of the Western Australian Government to sustainability and
a realisation of the relationship between sustainability and human rights,
I am hopeful that a fair and just outcome may be achieved within the conservation
estate of Western Australia.

The Western
Australian Conservation Estate – a Human Rights Framework Approach

Human rights standards,
principles of sustainability, and contemporary conservation approaches
require a response to findings of extinguishment over conservation areas.
Outlined below is a framework for negotiations between the Western Australian
Government and Aboriginal stakeholder groups. The framework incorporates
key human rights standards and may provide a basis for negotiated outcomes.
Further development of this framework is dependent upon its appropriateness
and utility in an Indigenous context in Western Australia and the active
participation of Indigenous stakeholder groups.

Recognition
and protection of traditional interests in conservation areas

In accordance with
article 27 of ICCPR which requires the protection and recognition of Indigenous
interests in land and with the effective participation and informed consent
of Aboriginal traditional owners, a human rights approach supports:

The
conditional grant of freehold title on areas within the conservation
estate to the Aboriginal traditional owners for the area

The principles of
effective participation and informed consent emanate from a number of
international human rights standards. These standards require that Indigenous
participation within decision-making processes occur at two levels. First,
the Minorities Declaration [53] provides that:

Persons belonging
to minorities have the right to participate effectively in cultural,
religious, social, economic and public life. [54]

And the Vienna Declaration
[55] calls on states to ‘ensure the full and free
participation of Indigenous people in all aspects of society, in particular
in matters of concern to them’. [56] These standards
require that Indigenous peoples ‘effectively participate’ generally
in public life and particularly in ‘matters of concern’ to them.
Second, international standards require that Indigenous people are able
to effectively participate and provide their informed consent to decisions
which affect them. In particular, States should ensure that:

…no decisions
directly relating to the rights and interests of Indigenous people are
taken without their informed consent. [57]

And that:

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 and measures
to ensure the effective participation of members of minority communities
in decisions which affect them. [58]

In accordance with
international human rights standards, it is vital that negotiations relating
to the rights and interests of Aboriginal people in Western Australia
occur only with their effective participation and that negotiated outcomes
are only determined with their informed consent. Of note, international
human rights bodies have been particularly concerned with the Commonwealth
Government’s failure to ensure the effective participation and informed
consent of Indigenous people in the 1998 amendments to the NTA. [59]

Conditional
terms

The grant of freehold
should be on terms negotiated between the Western Australian Government
and key Aboriginal stakeholder groups. However, in consideration of key
human rights principles, contemporary Indigenous land management approaches
and current international conservation strategies, conditional terms may
include:

  • the establishment
    of Aboriginal traditional interest and relationship to country and;
  • the negotiation
    of a management agreement between conservation agencies and traditional
    owners or their appropriate corporate body.

Traditional
interest and relationship to country

In particular instances,
the native title recognition process fails to recognise and protect Indigenous
cultural relationships with land in accordance with article 27 of the
ICCPR. A new mechanism should be developed to determine traditional interest
and relationship to country. This relationship should not be narrowly
confined to heritage values and sites of cultural significance but should
incorporate the full meaning of relationship to country.

In accordance with
principles of effective participation and informed consent, this mechanism
must be developed with the active participation of Aboriginal people whose
interests will be affected by the new mechanism. It may be that this process
of negotiation could usefully begin from the basis of the procedures used
for the registration of native title applications, as administered by
the National Native Title Tribunal. That is, the registration test may
provide a useful starting point for the development of a more appropriate
mechanism to determine traditional interest in country.

Management
agreement

A management agreement
would establish the ongoing conservation interest in the land and establish
an appropriate management structure. Key human rights standards and sustainability
principles can provide an important guide for the development of management
agreements. These include:

  • Protection
    and recognition of culture
    ; the grant of freehold in acknowledgement
    of cultural interests should not be unnecessarily confined by mechanisms
    that act to reinstate the conservation management structure. [60]

  • Cultural appropriateness;
    management structures need to function in a way which supports and effectively
    interacts with the culture of traditional owner groups.

  • Effective participation
    and informed consent
    ; decision making and management structures
    must be determined only with the informed consent of traditional owners.

  • Enjoyment of
    culture
    ; the balance between traditional use and conservation must
    be negotiated to ensure provisions for traditional land use practices,
    e.g., hunting and collecting bush food and medicine.

  • Self determination;
    the establishment of an equitable relationship and one that promotes
    and assists in the increased participation of Aboriginal traditional
    owners in all levels of management. In negotiation with the traditional
    owners this may lead to full management responsibilities over freehold
    areas.

  • Funding;
    adequate funding to ensure Aboriginal traditional owners can make informed
    decisions and management structures are culturally appropriate.

A number of management
models exist, for example, the commonly used joint management model or
the Indigenous Protected Area approach. A human rights approach supports
a model that ensures: the protection of Indigenous rights and interests
in land; the effective participation and informed consent of Aboriginal
traditional owners; the implementation of culturally appropriate management
structures; and opportunities for self determination and social, economic
and cultural development within traditional owner communities. Within
these parameters it is likely that a range of different management models
will be required to satisfy the distinct social and cultural identities
of Western Australia’s Aboriginal traditional owner groups.

Protection
of rights and interests

Prior to the Miriuwung
Gajerrong
decision, the rights and interests of native title claimants
within nature reserves were protected by the future act provisions of
the NTA. As a result of findings of extinguishment, right and interests
under the future act regime are at risk. To ensure the protection of rights
and interests and the opportunity of traditional owners to effectively
participate in decisions relating to their land, a human rights approach
requires that the Western Australian Government act to protect Indigenous
rights and interests in land until the resolution of traditional owner
interests in conservation areas and appropriate negotiations can commence.

Wilson
v Anderson

The Wilson v Anderson
case was heard by the High Court on appeal from the Full Federal Court.
The central argument of the case was whether native title was extinguished
by the grant of a lease in perpetuity for grazing purposes under the Western
Lands Act 1901
(NSW) (‘WLA’). For the purpose of the case,
it was assumed that native title rights and interests existed in the area.

The High Court’s
reasoning in Wilson v Anderson included a detailed analysis of
the legislative history of the WLA. This analysis mapped the amendments
to the 1901 WLA that resulted in the form of land ownership current on
the claim area. It revealed the historic context of the amendments and
to some extent the impetus for these amendments. Of significant influence
in the ongoing amendments to the WLA were the difficulties encountered
by pastoralists in the Western Division, difficulties which were not unlike
those affecting pastoralists in the Western Division today. That is, key
amendments to the WLA occurred as a result of difficulties affecting pastoralists
in western New South Wales, including drought conditions and economic
downturn. Also of significant influence were the policy and ideology of
land settlement in Australia.

Following this analysis,
the High Court found that the amendments to the WLA resulted in a type
of land ownership that wholly extinguished native title – the perpetual
grazing lease. [61]

What is also made
apparent by the Court’s reasoning in Wilson v Anderson is
the absence of an Aboriginal history or experience. This is partly as
a result of the structure of the appeal, in that it was assumed that native
title rights and interests existed and did not need to be identified.
For the most part, the absence of Aboriginal history or experience within
the Court’s description of land settlement in the Western Division
is a result of the terra nullius rationale that justified the process
of colonization in Australia. This rationale declared an empty land and
justified the exclusion and incremental dispossession of Aboriginal traditional
land in western New South Wales.

The Preamble to the
NTA acknowledges that Aboriginal and Torres Strait Islanders:

… have been
progressively dispossessed of their lands. This dispossession occurred
largely without compensation, and successive governments have failed
to reach a lasting and equitable agreement with Aboriginal peoples and
Torres Strait Islanders concerning the use of their lands.

It was hoped that
the spirit and purpose of native title recognition in Mabo and
the enactment of the NTA would stem the dispossession of Indigenous rights
and interests in land and provide a lasting agreement concerning the use
of those lands. The finding of extinguishment in Wilson v Anderson
ends these expectations and renews the dispossession of Aboriginal people
in western New South Wales. In this instance, the NTA does not offer a
‘lasting and equitable agreement’ with the Aboriginal people
in this region.

However, an opportunity
exists at this time for the NSW government to consider Aboriginal interests
in land in the Western Division and provide a ‘lasting and equitable
agreement’. Importantly, findings of extinguishment under the native
title legal regime do not mean the ‘extinction’ or end of Aboriginal
people’s relationship to and ownership of their traditional country.
These things continue.

The Western
Lands Act

The High Court decision
provides a detailed history of the WLA and the nature of the interests
created as part of its inquiry into whether the perpetual leases confers
a right of exclusive possession. It is useful to highlight the key features
of this history to understand the context and affects of land administration
in the Western Division.

In 1884, New South
Wales was divided into three areas of land administration under the Crown
Lands Act 1884
(NSW) – the Eastern, Central and Western Divisions.
The Western Division, covering nearly 80 million acres, or more than one
third of New South Wales, is often described as the ‘dry-western
fringe’ [62] and is largely a semi-arid to arid
landscape. The environmental conditions in the Western Division made the
area seem best suited to pastoral rather than agricultural industry. [63]

Figure 1: New
South Wales – Western Division shaded

Figure 1: New South Wales - Western Division shaded

In the years following
the establishment of the Western Division, the pastoral industry in the
region became unprofitable due to frequent periods of drought, sandstorms,
rabbit plagues and the destruction of vegetation caused by over grazing.
This led to the widespread abandonment of pastoral properties in the region.
[64] In 1900, a Royal Commission was appointed by the
NSW parliament to report on the difficulties facing pastoralists in the
Western Division. The Royal Commission revealed ‘that there is hardly
a solvent man in the western division’ [65] and
made recommendations to allow for increased acreage and longer terms for
leases and the establishment of a government management board to oversee
the pastoralists’ use of the land. [66]

The NSW legislature’s
response to the recommendations was the enactment of the WLA. The WLA
was intended to provide greater security of tenure to enable pastoralists
to obtain loans against the leases. During the Second Reading Speech in
the Legislative Assembly on the Bill for WLA, the Secretary for Lands
said:

… to bring
the western division into a state to carry stock, there must be money
expended upon it whether in water conservation, clearing, or scrubbing,
and if these men [the present settlers] have no money, they must borrow
to enable them to carry on. When a man lends money he naturally asks
upon what security he is making the loan, and if the applicant can say,
‘Here I have an absolute lease for forty-two years…,’
then the man who contemplates lending the money can calculate his security.
That is an absolute security, and the man who has money to lend knows
what he is lending upon. [67]

Despite the enactment
of the WLA, financial difficulties continued for pastoralists in the Western
Division. In response, amendments were made to banking legislation in
1920 and the WLA in 1930 to address the difficulties. With regard to banking
legislation, the Government Savings Bank (Rural Bank) Act 1920
(NSW) was passed, which enabled Commissioners of the Bank to conduct the
work of a Rural Bank and to offer loans against leases granted under the
WLA and other Crown lands legislation. Amendments to the WLA involved
the extension of term leases granted under the WLA. Those terms due to
expire in 1943 were extended to 30 June 1968. [68]

However, these efforts
were not enough: ongoing drought and the onset of the Great Depression
in the 1930s caused greater hardship. In 1934 the WLA was amended to allow
for holders of existing leases and leases subsequently granted to be made
in perpetuity. The grant of a lease in perpetuity was intended:

... to enabl[e]
holders to obtain the necessary finances to carry them on. At present,
as these are merely leases, it is impossible obtain advances on them,
but if they are converted into perpetual leases, advances will be made
upon the security of the holding. [69]

Initially, leases
in perpetuity were only granted over ‘home maintenance areas’.
These were areas ‘which when reasonably improved will carry in average
seasons and conditions a sufficient number of stock to enable the holder
to reasonably maintain an average family’. [70]
This was intended to prevent lessees of large pastoral holdings obtaining
leases in perpetuity, particularly as large lease holdings covered 57
per cent of the Western Division at the time. [71]
However problems in the Western Division remained, particularly for pastoralists
on small leaseholdings.

The legislature then
sought to reduce larger leaseholdings areas to supplement smaller areas
in the hope that small leaseholders ‘may be placed in a position
to increase their flocks, and consequently their incomes’. [72]
This approach was consistent with the strategy that had commenced with
WLA – to withdraw land from large pastoral leaseholdings and make
it available for smaller lease areas and, later, to satisfy the Government’s
commitment to returned soldiers. [73]

Following the Second
World War, the NSW government enacted the War Service Land Settlement
Act 1941
, which enabled land to be granted under a number of statutes,
including the WLA, to discharged members of the forces. The High Court
noted that the perpetual lease considered in Wilson v Anderson
was granted under the War Service Land Settlement Act, to Ross
Patrick Smith in 1953. [74]

The effect
of land administration in western New South Wales

The High Court’s
examination of the WLA is a legal history in which significance is given
to changes in legislation and the effect of these changes of legal interests.
Very little is said about the way in which this history affected Aboriginal
people living on their traditional country.

In the 1820s and
1830s, squatters began following the routes of explorers such as Mitchell,
Sturt and Oxley into western New South Wales. Driven by the expanding
colony’s growing demand for beef and a developing economy of wool,
squatters began illegally grazing new lands outside the ‘limits of
location’. The ‘limits of location’ were defined by the
colonial government in 1826 and only included settled districts around
major centres such as Sydney. [75] The purpose of the
order was to contain the spread of settlement. Under this policy, land
outside the limits of location could not be sold or leased and pastoral
occupation was prohibited. [76]

This prohibition
was ineffectual – squatters continued to push the boundaries of settlement.
Unable to prevent the illegal occupation of these lands the colonial government
introduced a system of annual occupation licences, allowing squatters
to legally graze stock on land outside the limits of location. The incursion
of early squatters into the areas outside the limits of location and unsettled
by colonists resulted in violent clashes with Aboriginal traditional owners.
The period between the 1840s and 1860s saw significant resistance by Aboriginal
people and it appears during the 1840s that Aboriginal resistance around
the Barwon River near Warrego temporarily prevented the intrusion of squatters
and stock. [77]

The gold boom of
the 1850s ushered in a new relationship between Aboriginal people and
the squatters. Many of the European workers employed by squatters left
the area to try their luck on the gold fields. As a result, Aboriginal
people were able to successfully resist the further incursion of squatters
into unestablished areas. Also, a new relationship emerged between Aboriginal
people and squatters as established grazing areas required a new source
of labour. This labour shortage resulted in the ‘dual occupation’
[78] of large holdings. [79] Aboriginal
people began to fill the labour shortage caused by the gold boom. This
relationship provided squatters with labour and enabled Aboriginal people
to continue to live on their traditional country and continue to engage
in cultural activities. The dual occupation of land continued, with the
establishment of large scale pastoralism in western New South Wales.

Further consequences
of the gold boom were the increased levels of immigration to Australia
and migration to remote areas. These areas had previously been dominated
by squatters and large pastoral holdings. As a result, demand increased
in remote areas for smaller holdings and the ‘unlocking of land’
held by pastoralists. This demand was consistent with the popular ‘closer
settlement’ ideology:

What we want to
do is to put people upon the land to make it productive …. I have
patriotism enough in me to desire a better state of things for my country,
and I think the time has come when steps should be taken to prevent
the wholesale alienation of the land, and when every acre sold should
represent population and productiveness. That is the way to make a nation.
Do you think we shall ever make a nation with sheep-walks? I admit that
sheep-walks are all very well; but they ought to give way to population,
and those who occupy them must recede and give way when the land is
required for bona fide occupation. I am not the only one who says that.
That statesmen of England have said the same, for it is laid down in
the old orders-in-council that the pastoral tenants or the squatters
of those days – for squatters they really were then – might
occupy the lands and make the best use they could of them; but that
they must give way before the advancing tide of population. [80]

However, such an
approach was inconsistent with the interests of squatter-pastoralists
who were a wealthy and influential political force; and inconsistent with
land use requirements in the Western Division, which determined that large
scale pastoral leases were more able to sustainably support stock to operate
a viable property.

Despite these issues,
the Colonial Government began to legislate for the creation of smaller
lease holding areas. However, it was not until the 1930s, under the WLA
that the government began to succeed in reducing the majority of large
pastoral holdings to small lease holding areas in western New South Wales.

In 1934, 57 per cent
of the Western Division was held in large holdings; by 1941 only 37 per
cent was covered by large holdings. [81] This approach
continued throughout the 1940s and in 1949 an act was passed specifically
to create home maintenance areas for returned soldiers settlement. By
1956, 83 per cent of the Western Division was held under the smaller perpetual
lease. [82]

The widespread establishment
of smaller lease holding areas in the Western Division had a significant
impact on Aboriginal communities. Previously, the dual occupation relationship
had allowed Aboriginal people to live on or near their traditional country.
Following the establishment of the smaller lease holding area, Aboriginal
people for the most part were unable to remain living on their traditional
country and began to live on the fringes of townships. [83]

Consequently, the
grant of perpetual leases created greater difficulties for the exercise
and enjoyment of culture by Aboriginal people in the Western Division.
However, these difficulties did not result in the end of Aboriginal culture
and identity in these areas. Rather, Aboriginal cultural tradition and
identity has adapted and evolved but continued [84]
despite profound challenges. Within such survival are stories of resilience
and strength that were not heard in the Wilson v Anderson decision
and are unlikely to be heard in any of the other native title claims outstanding
in the Western Division.

However, the non-recognition
of Indigenous connection to country in the Western Division is not a result
of a version of history that favours dispossession over resilience but
as a result of the legal operation and effect of creating non-Indigenous
interests on traditional land.

Extinguishment
of Native Title in the Western Division

Following its analysis
of the history of land administration in the Western Division, the High
Court found that perpetual grazing leases could be classified as ‘freehold
estate’ under s23B(2)(c)(ii) of the NTA and that they wholly extinguished
native title. [85] The Court reasoned that the lease
in perpetuity as developed within NSW land law was similar in most instances
to freehold, ‘with all the advantages and essence of freehold’
[86] – except for the performance of tenurial
requirements imposed by the grant. [87]

Native title in the
Western Division had been considered prior to the Court’s examination
of perpetual leases in Wilson v Anderson. The WLA was included
in the amendments to the NTA. In those amendments, specific leases granted
under s23 of the WLA and granted for the purpose of ‘agriculture,
or any similar purpose; agriculture (or any similar purpose) and grazing
combined; mixed farming or any similar purpose other than grazing’
were scheduled as a previous exclusive possession act under NTA s23B(2)(c)(i)
with the effect that native title was extinguished in these areas. Significantly,
the Commonwealth did not include perpetual grazing leases for extinguishment
as a Scheduled interest. The Court noted this exclusion but found that
the perpetual grazing lease was an exclusive lease and thus a previous
exclusive possession act under NTA s23B(2)(c)(iv) or (viii) which also
extinguished native title.

In a previous report
by the Aboriginal and Torres Strait Islander Social Justice Commissioner
the Schedule provisions of the NTA were described as the ‘blanket
extinguishment’ of native title. [88] It would
now appear that this was a compelling forecast of the findings in Wilson
v Anderson
, which not only acknowledged extinguishment under the NTA,
but added leases not included in the Schedule to the breadth of extinguishment.

The Western Division
covers approximately 43 per cent of New South Wales and of this area over
96 per cent is held under Western lands leases. [89]
The remaining 6 per cent is freehold, national parks, reserves, vacant
crown land and other types of leases. [90] This is
expected to have significant implications for native title in the area.

Figure 2: Western
Division of NSW – Current Native Title Applications shaded

Figure 2: Western Division of NSW - Current Native Title Applications shaded

Figure 2 shows
the location of the, currently, 20 native title applications in the Western
Division filed in the Federal Court. The National Native Title Tribunal
expects that 15 of these applications will be affected by the findings
in Wilson v Anderson. [91] In addition to these
findings, Western lands leases included as Scheduled interests under the
NTA extinguish native title. As a result it is likely that native title
will be extinguished over a significant area of the Western Division.

The Human
Rights Implications of Extinguishment in the Western Division

The findings of extinguishment
in Wilson v Anderson, the likely extent of these findings, and
the effects of the NTA Schedule, have profound implications for the recognition
and exercise of the human rights of Aboriginal people in the Western Division.
Broadly, the extinguishment of native title in the Western Division impedes
the right of Aboriginal people to enjoy their culture and exercise interests
arising from the right of self determination, in particular the principle
of effective participation in decision making as it relates to their traditional
country. While successive New South Wales Governments have legislated
to protect Indigenous interests, these measures do not comprehensively
address the particular interests of Aboriginal people in western New South
Wales.

Native
title

Native title is defined
by the traditional law and custom of a particular native title group –
it is given specificity by the culture of the group. Wilson v Anderson
was decided in the absence of evidence presenting native title rights
and interests. That is, it was contended that the existence of the lease
provided a complete answer to the native title claim and the court agreed
to decide this preliminary point on the assumption that native title rights
and interests existed. [92] Accordingly, evidence to
establish native title was not required. The absence of evidence detailing
connection and the content of native title rights and interests is reflected
in the High Court’s judgment which is silent on the presence of Aboriginal
people in the Western Division or the Euahlay-I Dixon people of the area
under claim.

The absence of specified
native title rights and interests in Wilson v Anderson limits the
extent to which a discussion of the implications of the Court’s decision
on the exercise of culture can be made. That is, without the specific
rights and interests of the Euahlayi native title claimant group being
known, it is difficult to discuss specifically how extinguishment will
diminish the exercise and enjoyment of the claimants’ culture. However,
by relying on generalised common law expressions of native title rights
and interests, it is possible to identify significant implications for
the exercise and enjoyment of culture arising from the extinguishment
of native title rights.

Rights and interests
recognised within native title processes and based on a particular claimant
group’s traditional law and customs commonly include the right to:

  • possess, occupy
    use and enjoy the area claimed;
  • be acknowledged
    as the traditional owners for the application area;
  • speak for and
    make decisions about the use and enjoyment of the application area;
    [93]
  • reside upon and
    otherwise have access to and within the application area;
  • use and enjoy
    the resources of the application area;
  • maintain and protect
    areas of importance under traditional law and customs; and
  • determine and
    regulate membership of, and recruitment to, the landholding group.

Broadly, these rights
enable native title holders to be on the land under claim for the purpose
of conducting activities on the land including; hunting, collecting bush
foods and medicine and caring for places of importance. And the orders
also allow for the recognition of native title holders as the traditional
owners of the land with rights to make decisions about the use of the
land.

Enjoyment
of culture

The extinguishment
of native title in western New South Wales and the subsequent failure
to recognise and protect traditional rights and interests as provided
by the mechanisms of the NTA impair the rights of Aboriginal people to
enjoy their culture as required by article 27 of the ICCPR. This article
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 practice their own religion or, to use their own language.

Within international
jurisprudence, this right also applies to Indigenous minorities. [94]

The NTA was intended
to provide for the recognition and protection of the unique rights and
interests of a native title holding group in relation to land and the
use of land, and in doing so be guided by the standard of protection conferred
by international covenants of ICERD, ICCPR and ICESCR. [95]
However, there has been much commentary by Indigenous leaders and academics
on the failure of the native title process to adequately recognise and
protect traditional law and custom. Yet the recognition of native title
rights and interests continues to be important in the exercise, recognition
and protection of culture. In principle, the NTA is in accord with article
27 in that it provides for the recognition and protection of native title
rights and interests and thereby supports the exercise and enjoyment of
culture. However, the limitations of recognition and the extinguishment
or non-recognition arising under the NTA or the common law are powerful
blows to such enjoyment.

Following Wilson
v Anderson
many Aboriginal people in western New South Wales do not
have rights under the NTA to go on to country and collect food, look after
areas of importance, or just be on country. They are not acknowledged
as the native title holders of country, based on their traditional law
and custom and do not have rights to talk about the future of their country
or to participate in caring for country.

However these findings
of extinguishment or non-recognition under the NTA will not, in practice,
result in the extinguishment or non-recognition of Indigenous laws and
customs, within an Indigenous framework.

Indigenous law…
continue[s] to operate regardless of the intrusions of Australian law.
It continues to allocate rights and interests in country, dictate the
nature of social interactions and acts as the basis of Indigenous social,
cultural and political identity. [96]

That is not to say
that extinguishment or non-recognition arising from the NTA does not impact
or impair the enjoyment of culture. On the contrary, it can significantly
disrupt, prevent and undermine cultural interests particularly as they
relate to the practice of culture in relation to land – the core
feature of the native title system. Yet Indigenous cultural traditions
will continue with or without statutory recognition and protection under
the NTA. This is consistent with the history and experience of Indigenous
Australians prior to Mabo and is likely to be consistent with the
experience of Aboriginal people in western New South Wales following Wilson
v Anderson
.

Since the early 1990s
there has been greater acknowledgement of the unique status and special
value of Indigenous culture to Australia’s national identity. The
decision in Mabo, the enactment of the NTA, the establishment of
ATSIC, and the Reconciliation movement, have provided a greater acknowledgement
and respect for the special value of Indigenous culture. Accompanying
this recognition has also been a growing awareness of the need to redress
Indigenous disadvantage.

The recognition
of the special value of Indigenous culture within the Australian national
identity accords with human rights standards which observe the special
contribution of minority cultures to the cultural identity of the state,
advising that:
[ICCPR] Article 27 is directed to ensuring the survival and continued
development of the cultural, religious and social identity of the minorities
concerned, thus enriching the fabric of society as a whole. [97]

It requires that:

States should recognise
and duly support the identity, culture and interests of Indigenous people
and their communities. [98]

These standards also
require that the enjoyment of culture, religion and use of language as
required by article 27 may require positive legal measures of protection
[99] to the extent that:

… a State
party is under an obligation to ensure that the existence and the exercise
of this right is [sic] protected against their denial or violation.
Positive measures of protection are, therefore, required not only against
the acts of the State party itself, whether through its legislative,
judicial or administrative authorities, but also against the acts of
other persons within the State party. [100]

The failure of the
native title system to recognise and protect Indigenous rights and interests
in western New South Wales and secure the protection of cultural interests
requires a response. From a human rights perspective, an appropriate response
may be one that seeks to ameliorate and negotiate findings of extinguishment
and provide a level of protection to Indigenous interests in the Western
Division.

Self determination
and effective participation

The recognition of
native title rights and interests not only affords native title holders
the protection and recognition of traditional rights and interests but
also provides for the opportunity to participate in decision making in
relation to their land and negotiate in relation to future acts on their
country. [101] Broadly, the future act provisions
and rights of decision making allow for the opportunity of native title
holders to exercise rights of self determination and effective participation.

The right of self
determination and principle of effective participation are founded in
article 1 of ICCPR and ICESCR. These conventions state:

All peoples have
the right of self determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social
and cultural development.

The principle of
effective participation is also drawn from article 27 of ICCPR and article
5 of ICERD. Article 5 of ICERD requires that all peoples have the right
to equal treatment before the law [102] and the right
to participate in the conduct of public affairs. 103
CERD’s General Recommendation on Indigenous Peoples recommends that
States:

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. [104]

In an Australian
context, the right of self determination is controversial. The Commonwealth
Government maintains that a right of self determination for Aboriginal
peoples is symbolic and distracts from the need to overcome Indigenous
disadvantage. [105] It appears the Commonwealth also
views a right of self determination as a possible basis on which Indigenous
Australians could seek to establish a separate state. [106]
However, this approach disregards international discussion on the right
of self determination, specifically as it applies to the rights of Indigenous
peoples in colonized states.

There is a strong
presumption against secession or independence flowing from the right
of self determination in the colonial setting. The United Nations is
strenuously opposed to any attempt to disrupt territorial integrity.
The principle of uti possedetis (the respect for colonial boundaries)
is stated in the General Assembly Resolution on the Granting of Independence
to Colonial Countries and Peoples. [107]

Importantly, the
right of self determination is broad in its application and meaning. Contemporary
analysis of the right supports the recognition of external and internal
self determination but also emphasises that it is an ongoing process of
participation rather than a one time choice. [108]
There are two types of self determination that are often described, internal
and external. External self determination refers to the right to determine
the political status of a people and its place in the international community,
including the right to establish a separate State. Internal self determination
is broadly described as ‘participatory democracy’. [109]
For minority groups within States, including Indigenous groups, it can
refer to cultural, linguistic, religious or political autonomy. Hence
internal self determination, in particular, is focused on participation
as opposed to outcome focus – enabling peoples to participate and
determine their political, social, cultural and economic status, with
the focus of this participation being the opportunity to ‘live well’.
[110]

The role and purpose
of self determination in Australia should, therefore, be directed to the
full participation of Indigenous Australians in determining their political,
economic, cultural and social status:

The right of self
determination of Indigenous peoples should ordinarily be interpreted
as their right to negotiate freely their status and representation in
the State in which they live. This might best be described as a kind
of ‘belated State-building’, through which Indigenous peoples
are able to join with all the other peoples that make up the State on
mutually-agreed and just terms, after many years of isolation and exclusion.
This does not mean the assimilation of Indigenous individuals as citizens
like all others, but the recognition and incorporation of distinct peoples
in the fabric of the State, on agreed terms. [111]

However, in relation
to the rights of Aboriginal people in the Western Division to effectively
participate in decisions affecting their traditional lands, the native
title system has failed in two respects. First, the 1998 amendments to
the NTA were drafted with little participation of Indigenous peoples.
Rather the Commonwealth’s approach was that of ‘balancing interests’
which in effect has balanced the interest in land against Indigenous peoples.
The second failure arises from the amendments to the NTA which result
in the wholesale extinguishment of rights and interests as occurred in
Wilson v Anderson. The extinguishment of native title ensures that
Aboriginal people in western New South Wales are denied the opportunity
to effectively participate in decisions relating to their traditional
country. The deprivation of these rights has important implications for
the opportunity of Aboriginal people in the Western Division to determine
their economic, social and cultural future.

The extinguishment
of native title has a twofold effect in relation to a right of self determination
and the principle of effective participation. First, findings of extinguishment
or non-recognition are applied to Aboriginal traditional owner communities,
essentially without their participation. This was clearly demonstrated
in Wilson v Anderson. The findings of extinguishment were determined
by the legal implications of the land administration process. Indigenous
rights and interests as recognised under the NTA are determined not by
Indigenous people but by the operation of the NTA.

In some instances,
Indigenous rights and interests are not recognised under the NTA because
their culture and community identity fail to satisfy the definitions of
traditional law and custom determined by the NTA. Such a process fails
to instill Aboriginal communities with a sense of empowerment and self
determination but can easily disempower and further dispossess. Conversely,
recognition of Indigenous rights and interests, under the NTA, lays an
important foundation for the exercise of self determination by Indigenous
communities.

Secondly, extinguishment
deprives Indigenous people the opportunity to effectively participate
in decisions affecting their traditional country. Recognised native title
rights and interests commonly include a right which enables native title
holders to ‘care for country’. This right clearly has a cultural
foundation and from a human rights perspective allows for the effective
participation of native title holders in ‘caring’ for traditional
land. Within ‘caring for country’ and effective participation,
the future act provisions within the NTA also ensure that native title
holders have important procedural rights in relation to acts that may
affect their rights and interests in land. Procedural rights under the
future act regime have provided native title holders in a number of Aboriginal
communities throughout Australia with the opportunity to benefit culturally,
socially and economically through the negotiation of agreements between
native title holders and developers. However, extinguishment under the
Wilson v Anderson decision deprives Aboriginal people in the Western
Division of access to the future act provisions of the NTA and of the
right to ‘care for their country’.

Response
to a Human Rights Approach

The findings of Wilson
v Anderson
deny Aboriginal people in western New South Wales the recognition
and protection of rights and interests under the NTA. This denial has
implications for the human rights of Aboriginal people in western New
South Wales to practice their cultural traditions and exercise self-determination.
The opportunity to exercise a right of self determination is undermined
by the extinguishment of rights determined by traditional law and custom
and the opportunity to negotiate meaningful agreements based on those
rights. In consideration of human rights standards, and in acknowledgement
of the ongoing relationship of Aboriginal people in the Western Division
to their traditional country, it is incumbent upon the New South Wales
government to offer a meaningful response to the extinguishment of native
title in the Western Division.

Outstanding issues
remain following the findings of extinguishment in Wilson v Anderson.
While some of these may be addressed by other state-based legislative
structures, they may be more appropriately and effectively addressed within
a comprehensive framework. Some of these issues include: land access for
traditional purposes, site and heritage protection, land and water management
arrangements, governance structures and service delivery, and economic
development opportunities that may have arisen from rights arising from
native title recognition.

This range of issues
can equitably and effectively be addressed through the negotiation of
regional agreements. Endorsed by ATSIC, regional agreements are defined
as:

… a way to
organize policies, politics, administration and/or public services for
or by an Indigenous people in a defined territory of land or land and
sea. [112]

Based on, but not
limited to the legal requirements of the NTA and the Aboriginal and
Torres Strait Islander Commission Act 1989
(Cwlth), agreements may
be negotiated on a broad range of issues, including:

  • Land access
  • Exploitation of
    land resources
  • Co-management
    of land/marine resources
  • Service delivery
    agreements
  • Self government
    or local government

However, it is anticipated
that regional agreements will not only deal with specific issues but will
adopt a holistic approach and address broader issues that may affect a
community or region, including land, the economic base and the social
and political infrastructure.

Regional agreements
and regional governance have been identified as a way in which Indigenous
disadvantage may be addressed through the recognition of Indigenous rights
and the capacity building of communities. [113]

The development
of governance structures and regional autonomy provides the potential
for a successful meeting place to integrate the various strands of reconciliation.
In particular, it is able to tie together the aims of promoting recognition
of Indigenous rights, with the related aims of overcoming disadvantage
and achieving economic independence. [114]

The Commonwealth
Government has also supported the role of regional agreements and capacity
building in addressing Indigenous disadvantage. [115]
However, there are growing concerns that the type of regional agreements
and governance structures endorsed particularly by the Commonwealth Government
will fail to deliver meaningful recognition of Indigenous rights, effective
community capacity building and meaningful governance structures.

The Harvard Project
on American Indian Development in North America [116]
is recognised as providing an important analysis of strategies to overcome
Indigenous disadvantage. The project concludes that good governance structures
and genuine self rule for Indigenous communities are fundamental in overcoming
Indigenous disadvantage. The Project identifies five main features of
good governance: real self determination or sovereignty; the building
of effective governing institutions; an effective cultural match between
these institutions and Indigenous traditions; long-term strategic thinking;
and leadership from individuals or groups, in the community’s interest.

While the findings
of the Harvard Project are frequently referred to by Government as an
effective model for overcoming disadvantage, such references are made
in a way which re-defines a key feature of good governance – self
determination. Based on the findings of the Harvard Project it is unlikely
that agreements and governance structures that fail to support genuine
self determination and governance will be successful in overcoming disadvantage.

The negotiation of
regional agreements within the Western Division could provide an opportunity
for the New South Wales Government to respond to findings of extinguishment
in a spirit of reconciliation. Meaningful regional agreements are capable
of addressing many of the outstanding land issues following the decision
and provide a foundation for the economic and social development of Aboriginal
communities in western New South Wales.


1
Wilson v Anderson and or’s [2002] 29 (8 August 2002)
Wilson v Anderson’).

2
Western Australia v Ward and or’s [2002] 28 (8 August 2002)
Miriuwung Gajerrong’).

3
Wilson v Anderson, op.cit., at [126].

4
Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1.

5
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
and Hayne JJ at [231].

6
ibid., at [221].

7
ibid., at [219].

8
ibid., at [249] (emphasis added).

9
Summary of s226 of the NTA – definition of an ‘act’.

10
The summary of the effect of the RDA on the vesting of reserves, see Miriuwung Gajerrong,
op.cit., per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [249]-[253].

11
ibid., at [252].

12
Gerhardy v Brown (1985) 159 CLR 70.

13
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
and Hayne JJ at [253] (emphasis added).

14
For the Court’s summary of the operation of s23B of the NTA, see
ibid., at [254]-[261].

15
Statistical information provided by the National Native Title Tribunal
(‘NNTT’): letter from NNTT to Human Rights and Equal Opportunity
Commission, 8 November 2002.

16
Department of Conservation and Land Management (WA), Background to a draft
policy statement on ‘Aboriginal involvement in Nature Conservation
and Land Management’, August 2000.

17
D O’Dea, ‘Post Determination Negotiations’, paper for Native
Title Conference 2002: Outcomes and Possibilities
, Geraldton, 3-5
September 2002.

18
NNTT, WA’s Martu people achieve native title recognition in Western
Desert
, media release 27 Sept 2002

19
The Gibson Desert Nature Reserve: Traditional Owners and Cultural Landscape,
prepared by Dr Lee Sackett. Courtesy of Ngaanyatjarra Council.

20
I note the WA Government has previously included land within a national
park ‘to protect Aboriginal heritage values’, from <www.calm.wa.gov.au/forest_facts/rfafs_indigenous_new.html&gt;,
accessed 23 September 2002.

21
Preamble, NTA

22
Australia has agreed that the international treaties it joins, including
human rights treaties, should be implemented throughout the nation and
that the existence of different levels of government provides no reason
for Australia’s international obligations to be neglected in any
part of the country (art 27 of the Vienna Convention on the Law of
Treaties
, 1155 UNTS 331, Australia ratified 1974). Even though the
primary responsibility for implementing treaties falls on the national
government, every organisation within the nation must refrain from breaching
the provisions of the two main human rights treaties (art 5(1) of ICESCR
and ICCPR both state ‘Nothing in the present Covenant may be interpreted
as implying for any..group or person any right to .. perform any act aimed
at the destruction of any of the rights and freedoms recognised herein’).
Other international standards imply obligations directly on individuals
or organisations (‘Individuals, groups, institutions and non-governmental
organizations have an important role to play and a responsibility in...promoting
human rights and fundamental freedoms’, article 18(2) of Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society
to Promote and Protect Universally Recognised Human Rights and Fundamental
Freedoms
, UN General Assembly resolution 8 March 1999, UN doc A/RES/53/144).

23
Human Rights Committee, General Comment 23, Article 27 (1994) para
7, in Compilation of General Comments and General Recommendations adopted
by the Human Rights Treaty Bodies
UN doc HR/GEN/1/Rev.1, p147 (‘HRC
General Comment 23’).

24
ibid. at para 6.1.

25
D Smyth, ‘Joint Management of National Parks’ in J Baker, J
Davies, & E Young (eds) Working on Country – Contemporary
Indigenous Management of Australia’s Lands and Coastal Regions
,
Oxford University Press, South Melbourne, 2001.

26
660 UNTS 195 (‘ICERD’) (Australia joined in 1975).

27
Committee on the Elimination of Racial Discrimination, General Recommendation
XXIII (51) concerning Indigenous people
, UN doc CERD/C/51/Misc.13/Rev.4
(1997) (‘CERD General Recommendation 23’) at para 4(d).

28
HRC General Comment 23, op.cit., para 7.

29
The World Commission on Environment and Development was established in
1983 by the United Nations. The purpose of the Commission was to re-examine
critical environment and development problems and develop strategies to
ensure future development would be at sustainable levels.

30
The World Commission on Environment and Development, Our Common Future,
Oxford University Press, 1987.

31
Rio Declaration on Environment and Development, UN document A/CONF.151/26
(12 August 1992), endorsed by UNGA on 22 December 1992 (UN doc A/RES/47/190,
para 2) (‘Rio Declaration’), Principle 1.

32
ibid., Principle 4.

33
ibid., Principle 22.

34
World Summit on Sustainable Development, The Johannesburg Declaration
on Sustainable Development
, 26 August – 4 Sept 2002, UN A/Conf.199/L.6/Rev.2,
Johannesburg Declaration’), para 5.

35
UN Department of Economic and Social Affairs, Global Challenge, Global
Opportunity, Trends in Sustainable Development
, World Summit on Sustainable
Development, Johannesburg, 26 Aug – 4 Sept 2002.

36
B Jones quoted in TW Kheel, ‘Sustainability: Rio to Johannesburg,
A Very Long Journey In Pursuit of A Still Elusive Goal’ in The Earth
Times, posted August 11, 2002 at <www.earthtimes.org/aug/sustainabilityriotoaug11_02.htm&gt;
accessed 10 December 2002.

37
ibid.

38
op.cit.

39
Johannesburg Declaration, op.cit., para 5.

40
Johannesburg Declaration, op.cit., para 7.

41
ibid., para 11 and 12.

42
ibid., para 32.

43
ibid., para 25.

44
The Western Australian Government uses the term ‘sustainability’
in preference to ‘sustainable development’. From the P Newman
paper (infra.), sustainable development has been appropriated by some
mining companies who use the term ‘sustainable development’
to advocate profits and energy growth with little regard for its true
meaning.

45
Government of Western Australia, Focus on the Future: Opportunities
for Sustainability in Western Australia
, December 2001.

46
ibid.

47
P Newman, Sustainability and Planning: A Whole of Government Approach,
Institute for Sustainability and Technology Policy
, Murdoch University
and Department of the Premier and Cabinet, Western Australia.

48
See S Kinnane, Beyond the Boundaries: Exploring Indigenous Sustainability
Issues
, August 2002.

49
S Kinnane, Beyond the Boundaries, Exploring Indigenous Sustainability
Issues
, Prepared for the Sustainability Policy Unit, WA Department
of Premier and Cabinet, April 2002.

50
ibid., page 6.

51
WA Labour Party, Indigenous Affairs Policy Statement, page 1.

52
FJ Walsh, ‘The relevance of some aspects of Aboriginal subsistence
activities to the management of national parks: with reference to the
Martu People of the Western Desert’, in J Birckhead, T De Lacy &
L Smith, L (eds) Aboriginal Involvement in Parks and Protected Areas,
Australian Institute for Aboriginal and Torres Strait Islander Studies
Report Series, Aboriginal Studies Press, Canberra, 1992.

53
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities
, adopted by the UN General Assembly
in 1992, UN doc A/RES/47/135, 18 December 1992.

54
ibid., art 2(2).

55
Vienna Declaration and Programme of Action, UN document A/CONF.157/23,
25 June 1993: endorsed by United Nations General Assembly on 20 December
1993 (UN doc A/RES/48/121, para 2).

56
ibid., part I para 20 (also part II para 31).

57
CERD General Recommendation 23, op.cit., para 4(d).

58
HRC General Comment 23, op.cit., para 7.

59
CERD, Concluding observations by CERD: Australia, UN doc CERD/C/304/Add.101,
19 April 2000, para 9; CERD, Decision 2(54) on Australia, UN doc
A54/18 para 21(2), 18 March 1999, para 9.

60
Earlier grants of freehold to Aboriginal traditional owners on conservation
areas have been made on the condition of a leaseback arrangement. Such
a practice is unnecessary to ensure the ongoing conservation interest
in the area. Indigenous Protected Areas or other management mechanisms,
can be employed to maintain the ongoing conservation role without undermining
the grant of freehold. For example, the Gurig National Park in the Northern
Territory.

61
Wilson v Anderson, op.cit., at [92].

62
CJ King, An outline of closer settlement in New South Wales, Sydney,
New South Wales Department of Agriculture, 1957, at 164.

63
New South Wales, Parliamentary Debates, Legislative Assembly, First
Series, Session 1883-1884, at 351-52.

64
Anderson v Wilson [2000] FCA 394 (5 April 2000), per Beaumont J
at [169].

65
Wilson v Anderson, op.cit., per Gaudron, Gummow and Hayne
JJ, at [71].

66
Anderson v Wilson, op.cit., per Beaumont J at [176].

67
Wilson v Anderson, op.cit., per Gaudron, Gummow and Hayne
JJ, at [71].

68
ibid., at [72].

69
ibid., at [73].

70
Western Lands (Amendment) Act 1932, s 3 quoted in Anderson v
Wilson
, op.cit., per Beaumont J at [177].

71
Anderson v Wilson, op.cit., per Beaumont J at [179].

72
Minister for Lands (New South Wales, Parliamentary Debates, Legislative
Assembly 17 May 1934 at 401) quoted in Anderson v Wilson op.cit.,
per Beaumont J at [180].

73
See generally, Parliament of New South Wales. First Report of the Joint
Select Committee of the Legislative Council and Assembly to Enquire into
the Western Division of New South Wales
, Parliamentary Paper No 151,
Government Printer 1983, at 297-301.

74
Wilson v Anderson, op.cit. per Gaudron, Gummow and Hayne
JJ at [75].

75
L Godden, ‘Wik: Feudalism, Capitalism and the State. A Revision of
Land Law in Australia?’ in Australian Property Law Journal,
5 (2&3), 1997, page 176.

76
CJ King, An Outline of Closer Settlement in New South Wales: Part 1,
The Sequence of the Land Laws 1788-1956, Division of Marketing and Agricultural
Economics
, Department of Agriculture, NSW, 1957, pp 39-40.

77
RL Heathcote, Back of Bourke, Melbourne University Press, 1965.

78
H Goodall, A History of Aboriginal Communities in New South Wales,
1909-1939
, Phd Thesis, University of Sydney, 1982.

79
H Allen, Where the Crow Flies Backwards: Man and Land in the Darling
Basin
, Phd Thesis, Australian National University, 1972.

80
Secretary for Lands, Mr Farnell, Legislative Assembly Debate 7 November,
1884, New South Wales Parliamentary Debates, First Series, Session
1883-84, pp.331-332.

81
CJ King, An Outline of Closer settlement in New South Wales, op.cit.

82
First Report of the Joint Select Committee of the Legislative Council
and Legislative Assembly to Enquire into the Western Division of New South
Wales
, Parliament of New South Wales, 1983.

83
JR Beckett, ‘Kinship, mobility and community in rural New South Wales’,
in I Keen (ed), Being Black, Aboriginal Cultures in ‘settled’
Australia
, Aboriginal Studies Press, Canberra, 1988, page 122.

84
ibid.

85
Wilson v Anderson, op.cit., per Gaudron, Gummow and Hayne
JJ at [92].

86
ibid., at [116].

87
Tenurial requirements ensured that retention of title was dependent on
the lessee satisfying certain requirements. In relation to the WLA leases
these requirements included; requirement of residence on the lease area,
that the lease be used for the purpose of grazing stock and that the lease
not be transferred, conveyed, assigned or sub-let without the consent
of the Minister: ibid., at [112]-[113].

88
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 1996-97
, Human Rights and Equal Opportunity Commission,
Sydney, 1997, p78.

89
Anderson v Wilson, op.cit. per Beaumont J at [159].

90
NNTT, ‘Native Title and the Western Division of New South Wales’,
16 August 2002.

91
NNTT, Talking Native Title in NSW, September 2002.

92
Anderson v Wilson, op.cit. per Black CJ, Beaumont and Sackville
J, Explanatory Statement.

93
The right to make decisions about the use of the land has been recognised
in a number of native title determinations, including Mualgal People
v State of Queensland and Ors
[1999] FCA 157, Hayes v Northern
Territory
[2000] FCA 671 and Wandarang, Alawa, Marra & Ngalakan
Peoples v Northern Territory of Australia
[2000] FCA 923. However,
the reasoning in Miriuwung Gajerrong questions the appropriateness
of a right to make decisions about the use of the land in a non-exclusive
context. See Miriuwung Gajerrong, op.cit. per Gleeson CJ,
Gaudron, Gummow and Hayne JJ, at [49] & [417].

94
HRC General Comment 23, op.cit., para 3.2.

95
Preamble, NTA.

96
K Muir, ‘This Earth Has an Aboriginal Culture Inside’, in AIATSIS,
Land, Rights, Laws: Issues of Native Title, Issues Paper No. 23,
July 1998.

97
HRC General Comment 23, op.cit. at para 9.

98
Rio Declaration, op.cit., principle 22.

99
HRC General Comment 23, op.cit., at para 7.

100
HRC General Comment 23, op.cit., at para 6.1.

101
NTA, Preamble and Part 2, Division 3 of which sets out the procedures
for the administration of future acts under the NTA.

102
ICERD, op.cit., art 5(a).

103
ibid., art 5(c).

104
CERD, General Recommendation 23, op.cit. at para 4(d).

105
The Hon. J Herron, Minister for Aboriginal and Torres Strait Islander
Affairs, Statement on behalf of the Australian Government at the 17th
session of the United Nations Working Group on Indigenous Populations
,
Canberra, 29 July 1999, p7.

106
A Crabb, ‘Stand-off on indigenous rights’ in The Age,
26 December 2002.

107
J Debeljak, ‘Barriers to the recognition of Indigenous peoples’
human rights at the United Nations’ (2000) 26 Monash University
Law Review
159, p171.

108
M Praag, C Van Walt, ‘Report to the International Conference of Experts
held in Barcelona from 21-27 November 1998’, The Implementation
of the Right to Self-Determination, as a contribution to conflict prevention
,
UNESCO, Division of Human Rights, Democracy and Peace, UNESCO, Centre
of Catalonia.

109
ibid., p26.

110
For further discussion on self determination as the opportunity to ‘live
well’ see Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2002, chapter 2.

111
E Daes, Discrimination against Indigenous people – Explanatory
note concerning the draft declaration on the rights of Indigenous peoples
,
UN doc E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, para 21.

112
Quoted in Aboriginal and Torres Strait Islander Comission (‘ATSIC’),
Regional Agreements Manual, 2001.

113
See Commonwealth Grants Commission, Report on Indigenous Funding 2001,
Canberra, 2001; ATSIC, Resourcing Indigenous development and self-determination
– a scoping paper
, ATSIC, Canberra 2000.

114
Aboriginal and Torres Strait Social Justice Commissioner, Social Justice
Report 2000
, Human Rights and Equal Opportunity Commission, Sydney,
2000, p107.

115
The Hon. P Ruddock, Minister for Immigration and Multicutural and Indigenous
Affairs, Agreement making and sharing common ground, speech at
ATSIC National Treaty Conference, 29 August 2002, <www.minister.immi.gov.au/atsia/media/transcripts02/treaty_conf_
0802.htm>.

116
For a detailed discussion on the findings of the Harvard Project and the
Commonwealth Government’s interpretation of these findings see Social
Justice Report 2002
, op.cit., pp 41-44.

19
March 2003.