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Native Title Report 2002: Introduction


The year under review
in this, my fourth Native Title Report, is a year in which the High Court
has handed down its decision in several significant native title cases
thus elucidating the principles upon which the recognition and extinguishment
of native title are determined. 2002 marks the end of a ten year period
since the Mabo decision [1] first introduced
the dual concepts of recognising and extinguishing native title. For ten
years the interpretation of their meaning has proceeded in the courts,
first through submissions to and decisions by lower courts, then to the
appeal process in which further arguments were tested and judged, until
their final crystallisation by the High Court. These principles and their
effect on the human rights of Indigenous peoples are the subject of this

In order to understand
the effect of these principles on the day to day lives of Indigenous people
it is important to relate them to the broader dialogue on Indigenous issues.
This is particularly important because of the failure in Indigenous policy
formulation to take native title into account when devising strategies
to meet those goals where traditional land, culture and governance structures
could play an integral role. Sidelining native title in this way is indicative
of a broader trend in Indigenous policy-making under the rubric of ‘practical
reconciliation’ and epitomises its failure to recognise rights as
a vehicle for transforming the social and economic conditions of Indigenous

My introduction to
last year’s Native Title Report discusses the debate, which continues
to dominate the ideological battlefield, around rights and the assumptions
on which that debate rests. As I indicated there, the debate fails to
distinguish between two types of rights relevant to Indigenous people:
citizenship rights and inherent rights. An analysis of the arguments reveal
that what are actually being attacked as ineffective in halting the spiral
of poverty and violence in Indigenous communities, are citizenship rights.
While upholding the right of Indigenous people, like all other people,
to make choices, such rights have not produced an improvement in Aboriginal
people’s lives. Yet no-one is seriously suggesting that the solution
to the poverty in Indigenous communities lies in taking away citizenship

As indicated in my
previous Report [2] citizenship rights alone are not
a tool of social change and indeed, can entrench the inequality that already
exists between Indigenous and non-Indigenous people. We need to go further
with rights and adopt an approach that aims to achieve substantive equality,
not just formal equality, through special measures and the full recognition
of Indigenous people’s human rights, including their inherent right
to their traditional land.

While this debate
continues at an ideological level, certain agreed principles have emerged
as fundamental to bringing about the changes necessary to redress the
poverty that distinguishes the conditions of Indigenous people’s
lives from non-Indigenous.

First, it is generally
agreed that for policy or legislation to redress Indigenous disadvantage,
Indigenous people need to participate in its formulation and implementation.
Participation does not mean consultation. Participation occurs at a fundamental
level, in the final decision-making but also in the design, implementation
and monitoring of the policy or legislation concerned. As Paul Briggs,
a key Indigenous leader in the Shepparton area was reported as saying
to the House of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs in their Inquiry on Indigenous capacity building,
‘Everyone involved in Indigenous affairs needed to acknowledge the
vision that Aborigines had for their own future’. [3]
It is essential that the goals that non-Indigenous governments and policy
makers have for the future direction of Indigenous people is filtered
through the vision Indigenous people have for themselves.

Second, for Indigenous
people to move out of the cycle of poverty, they need to establish, in
their communities or in the areas in which they live, a sustainable economic
base. This economic base must generate sufficient wealth to provide meaningful
employment and move the Indigenous people driving it out of poverty. A
concomitant of the development of an economic base is the development
of a social and technical infrastructure necessary to sustain it. This
includes a reduction in the consumption of drugs and alcohol to a level
compatible with a productive working day and adequate housing, health
and educational facilities.

What then does native
title have to do with these necessary conditions for social and economic
transformation in Indigenous communities? In order to answer this question
it is necessary to understand the significance of the relationship on
which native title is based, the relationship between Indigenous people
and their traditional land.

The depth of this
relationship is conveyed in the account in chapter 4 of the relationship
between the peoples of the Western Desert and their homeland, a place
where their spirit and their ancestor’s spirit belong. While particular
features of their relationship to the land may be unique it shares some
important common features with the relationship that other Indigenous
people around the world have with land.

These common features
have been summed up in a number of informative and educative United Nations
reports on the relationship of Indigenous people to their land, submitted
through the Sub-Commission on the Prevention of Discrimination and Protection
of Minorities. [4] The one point on which these reports
are all consistent is their recognition of the unique and fundamental
relationship that Indigenous people have with their land. Professor Erica-Irene
Daes tabled her final report of the study entitled Indigenous people
and their relationship to land
in June 2001. [5]
Prof Daes has noted:

Since the establishment
of the Working Group on Indigenous Populations, indigenous peoples have
emphasised in that forum the fundamental nature of their relationship
to their homelands. They have done so in the context of the urgent need
for understanding by non-indigenous societies of the spiritual, social,
cultural, economic and political significance to indigenous societies
of their lands, territories and resources for their continued survival
and vitality. In order to understand the profound relationship that
indigenous peoples have with their lands, territories and resources,
there is a need for recognition of the cultural differences that exist
between them and non-indigenous people, particularly in the countries
in which they live. Indigenous peoples have urged the world community
to attach positive value to this distinct relationship. [6]

On the basis that
land continues to have a spiritual, social, cultural, economic and political
significance to Indigenous people, what role does this relationship play
in the key triggers identified for change in Indigenous communities: participation
and economic development?

The process by which Indigenous communities participate in the development
of policies and laws that seek a change in that community’s direction
requires an understanding of the way in which the political structures
and authority that emanate from the traditional relationship of Indigenous
people to land continues to shape that community. Thus, for instance,
traditional owners may continue to hold authority, especially in matters
of traditional law and custom, even though a range of non-traditional
political structures may provide an interface between the community and
the non-Indigenous system. The interaction of these levels of authority
within the Indigenous community and the obligations and responsibilities
associated with Indigenous decision-making at all levels need to be taken
into account in order to ensure full and effective participation has occurred.

Another important
way in which the traditional relationship to land shapes the participation
process is in its contribution to the definition of the geopolitical entity
through which policies which seek to transform Indigenous social and economic
relationships are directed, i.e., the region. Regional plans, regional
agreements and regional progress must be developed with a thorough understanding
of the boundaries as they are influenced by traditional law and custom.
So too this understanding underlies the participation of Indigenous people
in the formulation and implementation of these plans and agreements occurring
on a regional basis. [7]

Economic development.
The second necessary condition to transforming Indigenous communities,
economic development, while often posited as unrelated, or indeed antithetical
to the traditional relationship that Indigenous people have to their land,
in my view, requires a thorough understanding of this relationship.

In the first place,
ownership of land, including traditional ownership, can be viewed as ownership
of an asset from which development can take place. This is illustrated
by the recent agreements on the Burrup Peninsula which provide monetary
benefits, employment and training opportunities to the native title groups
in the area while at the same time protecting their heritage and culture.
These types of arrangements, found between many native title claimant
groups and industry, involving varying degrees of wealth and benefit,
can be identified as a result of the legal recognition given to the traditional
relationship that Indigenous people continue to have with their land.

However, the extent
to which recognition of the traditional relationship of Indigenous people
to their land can provide direct economic benefits to the vast majority
of Indigenous people in Australia is limited. Not all traditional land
will have inherent economic value, and not all Indigenous people can qualify
as traditional owners of land entitled to the economic wealth that land
may generate through a native title agreement.

There is another
benefit, an indirect one but nevertheless significant, that the recognition
of traditional relationships to land can contribute to the development
of an economic base for Indigenous people. This benefit comes from an
understanding of the relationship between economic development and the
social, cultural and environmental context in which development takes

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. The concept of
sustainable development recognises that economic development is not just
the exploitation of resources wherever they happen to exist, but also
must take account of the relationships in which development occurs, including
the cultural values of the community.

The relationship
of Indigenous people to their land is widely recognised as a basis for
their cultural values and identity and as such must be taken into account
in the policies aimed at achieving sustainable economic development. Obvious
examples of economic development founded on the traditional cultural values
of a community are the initiatives around tourism and Indigenous art.
However the notion of sustainable development does not require that industries
be restricted to particular types, but that all developments, from mining
to tourism, take account of the needs of the cultural values of a community
and occurs with their informed consent.

Native title provides
an important frame of reference by which participation and economic development
can transform the conditions of Indigenous people’s lives. Yet its
capacity to contribute to this process has been hampered, first by the
legal system that operates to restrict rather than maximise these outcomes
and second by the failure of government to integrate native title into
the range of policy options available in achieving this goal.

This year’s
Native Title Report analyses the restrictions placed on the capacity of
native title to achieve outcomes for Indigenous people through its construction
in the legal system. The focus in chapter 1 of the Report is on the tests
established in the decisions of Yarmirr, [8]
De Rose, [9] and Yorta Yorta,
[10] and the recognition of native title. Emerging
from these decisions is a concept of recognition as not simply the law
providing a vehicle for Indigenous people to enjoy their cultural and
property rights, but rather one where the law becomes a barrier to their
enjoyment and protection.

One tier of this
barrier is constructed by a notion of sovereignty that denies the law-making
power of Indigenous people after its acquisition by the British Crown.
Thus the infrastructure that supports the rights and interests recognised
in native title law by s223(1) of the Native Title Act 1993 (Cwlth)
(‘NTA’), the traditional laws and customs, is not a functioning
system but one which ceased to operate from the time that British sovereignty
was imposed. The rights and interests recognised in NTA s223(1) as native
title, must be created by traditional laws and customs existing prior
to British sovereignty.

The second tier of
this barrier is constructed by limiting the recognition of native title
to only rights and interests separated from the traditional laws and customs
which created them. Without recognition of the traditional laws and customs
that create them, native title rights and interests are a bundle of rights,
able to be eroded one by one whenever their exercise is inconsistent with
the rights and interests created by the laws of the non-Indigenous legal

The third tier in
the barrier to Indigenous people gaining recognition and protection of
their traditional rights and interests in land as they are observed and
acknowledged in contemporary society, is the difficulty of proving the
elements that constitute the statutory definition of native title. While
the recognition of native title is restricted to rights and interests
disconnected from the traditional laws and customs, in order to obtain
this limited recognition the native title claimants must prove that those
rights and interests are possessed under traditional laws and customs
acknowledged and observed by the claimant group. In other words, traditional
laws and customs are an element of the proof of native title but they
are not an element of its recognition. Moreover, the standard and burden
of proving this element is very high.

This standard of
proof stems from a fundamental tenet of the High Court’s interpretation
of s223(1) that the laws and customs of Indigenous people are a body of
norms or a normative system under which rights and interests are created.
[11] A normative system of laws, it is said, gets its
identity from being observed and acknowledged by a society. Moreover it
is the observation and acknowledgement of laws and customs that define
a particular society. The two, laws and society, are thus inextricably
linked. The establishment of the existence of a body of traditional laws
and customs prior to sovereignty requires proof of continuous observance
and acknowledgement of those laws and customs since sovereignty. In order
to prove this, native title claimants must also prove that the transmission
of these traditions and customs was from one society to the next.

The NTA and the common
law construct native title in a society that must exhibit a vital and
ongoing relationship with its laws even though the regenerative capacity
of these laws has been removed by the imposition of sovereignty. Then,
if such a society can be shown to exist, the recognition of native title
is limited to the rights and interests that emanate from such laws. This
is the final tier in the barrier preventing native title from giving real
outcomes to Indigenous people in contemporary society: this requirement
to exhibit vitality while at the same time denying its recognition.

Such a construction
also denies the place that Indigenous culture has for Indigenous people
in contemporary Australian society. Society, Indigenous and non-Indigenous,
cannot be finally determined through the laws observed but exist in a
plurality of social, political and legal spaces, changing as the context
changes. In this dynamic relationship between law, society and identity,
Indigenous culture can still be a vital and transformative force, even
though it can interchange with non-Indigenous culture. It is this vitality
that has been removed in the construction of native title presented by
the High Court.

While the Yorta Yorta
decision has clarified the tests for recognition of native title, the
High Court decisions in Miriuwung Gajerrong [12]
and Wilson v Anderson [13] have provided
clear principles on how native title is extinguished at law.

Chapters 2 and 3
of the Report seek to delineate these principles in order to participate
in and progress a long-standing debate concerning the extinguishment of
native title. The central issue in this debate is whether the extinguishment
of native title, as it occurs under Australian law, is racially discriminatory.
It is an important debate about the ethical underpinnings of a legal regime
which gives recognition to the inherent rights of Indigenous people.

The test which the
High Court adopted in Miriuwung Gajerrong to determine whether
laws or acts which create rights in third parties extinguish native title,
either completely or partially, requires a comparison to be made between
the legal nature and incidents of the rights created by statutory or executive
acts and the native title rights arising out of traditional law and custom.
Where there is an inconsistency between these two sets of rights then
native title is either completely extinguished or extinguished to the
extent of the inconsistency.

The result of applying
this inconsistency test is that the native title rights most susceptible
to extinguishment by the creation of non-Indigenous interests are exclusive
rights, such as the right to control access to country. On the other hand
the native title rights that best survive this test are ones expressed
at a high level of specificity, limited to the conduct of activities on
the land rather than the control of activities on the land, and confined
to traditional activities rather than contemporary activities.

Underlying the inconsistency
test is a hard and driving logic: either the rights compared are consistent
or they are inconsistent. If consistent, native title continues. If inconsistent,
native title is extinguished. Glaringly absent from this logic is the
possibility of co-existence, where rights are negotiated and mediated
to enable a diversity of interests to be pursued over the same land. The
idea that the law could assist to build relationships rather than separate
interests was not explored. Yet, before the High Court for their consideration
was a range of legal options which could underpin a co-existence approach.

These alternatives
were not taken up by the High Court primarily because of the pre-eminence
given to the way in which native title was extinguished through the statutory
framework of the NTA. The prescription of extinguishment in the confirmation
and validation provisions of the NTA mandated an approach in which native
title could be extinguished partially or completely. In addition, the
Court found that the non-extinguishment principle had no operation in
the common law principles of extinguishment and were limited in application
to the provisions of the NTA. [14] The principles of
extinguishment outlined in the Court’s decision in Miriuwung Gajerrong
are a result of the Court’s interpretation of both the statute and
the common law working together to determine the full extent of extinguishment
under Australian law.

Chapter 3 subjects
these principles of extinguishment to the tests of discrimination that
were reiterated and affirmed in the Miriuwung Gajerrong decision.
An analysis of the domestic law of discrimination under the Racial
Discrimination Act 1975
(Cwlth) within the decision that establishes
the principles of extinguishment of native title, provides a sharp contrast
between the non-discriminatory approach to the protection of native title
and that being affirmed.

The principles underlying
a non-discriminatory approach to the protection of native title are set
out at Annexure 1. In summary, a non-discriminatory approach measures
the extent to which the law permits Indigenous property rights to be enjoyed
against the extent to which the law permits the enjoyment of other property
rights. Thus the law must provide native title with the protection necessary
to ensure it can be enjoyed, according to its tenor, and to the same extent
as non-Indigenous interests in land. Even where property rights like native
title are unique in their origin and characteristics, discrimination is
found not by comparing these characteristics with the characteristics
of non-Indigenous property rights but by comparing the extent to which
the property rights are able to be enjoyed, regardless of the characteristics
of each. The content of traditional law and custom does not have to be
unpacked and compared with non-Indigenous interests, as it is in the inconsistency
test. It is only the protection provided by the law as it applies to Indigenous
property rights and non-Indigenous property rights that requires comparison.

Constructed in a
non-discriminatory way, native title law should be a vehicle for the continued
enjoyment and protection of Indigenous property and culture and can contribute
to the transformation that has been identified as necessary in redressing
the spiral of poverty that besets Indigenous communities.

Chapter 4 of the
Report discusses the impact of the law of native title, particularly in
relation to extinguishment in the Miriuwung Gajerrong and
Wilson v Anderson decisions. The extinguishment of native
title by the creation of perpetual grazing leases in the Western Division
of New South Wales and the creation of nature reserves in Western Australia,
highlight the implications of these decisions on the human rights of Indigenous
Australians. This chapter also discusses measures to ameliorate the effects
of findings of extinguishment.

Now that the principles
of recognition and extinguishment have been crystallised by the High Court
and the effect of these principles on the day to day lives of Indigenous
people is known, it is urgent that the law be evaluated against the human
rights standards that Australia is committed to maintaining. Chapter 5
outlines the way in which human rights principles can direct the changes
that are required to make our domestic law consistent with international

There are various
levels at which reform of the native title system can take place. The
most obvious level is the legislative one, given that the NTA controls
the level of protection afforded native title. Clearly changes would have
to occur at this level although the recognition and protection of native
title may not ultimately depend on legislation. For instance, the recognition
and protection of Indigenous rights to land may be enshrined in a treaty
or agreement which supersedes statutory rights. Alternatively rights might
be protected on a number of levels with ultimate protection residing in
the Constitution.

In considering reform
at this level I do not seek to map out every possible or preferred legislative
amendment to the NTA. Rather I seek to identify broad areas in which reform
is required and underlying mechanisms by which injustices can be redressed.
Against this approach of reforming the present system must be weighed
the benefits of enshrining Indigenous rights to land in a completely different
protective system to that which presently exists, such as an arbitral
system suggested by Justice McHugh in Miriuwung Gajerrong.
[15] While consideration of such alternative systems
is beyond the scope of this report, they must be seriously considered
in view of the legal tests established to gain recognition of native title
and the difficulty of changing the fundamental assumptions of these tests
within the current system as it is governed by the NTA.

A similar process
of evaluation is required at the political level. This is particularly
pressing in view of the Court finding in Miriuwung Gajerrong
that the NTA rather than the common law directs the native title processes
of extinguishment and recognition, confirming the primary role of the
Commonwealth in the protection of native title. The Commonwealth must
now accept responsibility for the law as it stands and, equally importantly,
re-evaluate the means by which the law can be changed to make it consistent
with Australia’s international law obligations.

However, even if
human rights standards are not accepted as the benchmark for evaluating
and changing the native title system, the agreed goals of increasing participation
of Indigenous people in determining their own future and establishing
an economic base in Indigenous communities, would require that every option
that meets these goals, including the inherent rights of Indigenous people
to the recognition of their traditional relationship to land, be utilised
to their greatest potential.

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

Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2001
, Human Rights and Equal Opportunity Commission,
Sydney, 2002, p9.

The Age newspaper, 26 September 2002, p11.

E Daes, Indigenous peoples and their relationship to land, United
Nations document number (‘UN doc’) E/CN.4/Sub.2/2001/21, 11
June 2001; M Martinez, Study on treaties, agreements and other constructive
arrangements between States and indigenous populations
, E/CN.4/Sub.2/1999/20,
22 June 1999; M Cobo, Study of the Problem of Discrimination against Indigenous
Populations, UN doc E/CN.4/Sub.2/1986/7/Add.4.

E Daes, op.cit.

E Daes, Indigenous peoples and their relationship to land, UN doc
E/CN.4/Sub.2/2000/25, 30 June 2000, para 11.

See Native Title Report 2001, op.cit., pp87-105; and C O’Faircheallaigh,
‘Process, Politics and Regional Agreements’ in Land, Rights,
Laws: Issues of Native Title
, Australian Institute of Aboriginal and
Torres Strait Islander Studies, February 1998.

Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA
56 (11 October 2001).

De Rose v State of South Australia [2002] FCA 1342 (1 November

Members of the Yorta Yorta Aboriginal Community v Victoria &
[2002] HCA 58 (12 December 2002).

See pages 31-33, below.

Western Australia v Ward and o’rs [2002] HCA 28 (8 August

Wilson v Anderson and o’rs, [2002] HCA 29 (8 August

See pages 47-48, below.

See page 127, below.

March 2003.