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Native Title Report 2002: Summary

- Native
Title Report 2002

The High Court's
decisions in Yarmirr [1], Miriuwung Gajerrong
[2], Wilson v Anderson [3]
and Yorta Yorta [4] clarify the law with
respect to the recognition and extinguishment of native title. The consequences
of the law of native title for Indigenous people are now starkly apparent.
It is thus timely that the 2002 Native Title Report evaluates these principles
against the human rights standards to which Australia is committed under
international law. Such an evaluation reveals fundamental shortcomings
within the native title system. Reform is necessary to ensure that the
law of native title is consistent with international law and while this
can occur through legislative amendment at the State or Federal level,
other approaches, such as regional agreements, can also provide a means
by which Indigenous rights and interests are recognised and protected.

1 - Recognition of native title

Emerging from the
High Court decisions in Yarmirr, Miriuwung Gajerrong and
Yorta Yorta, is a concept of recognition as not simply the law
providing a vehicle for Indigenous people to enjoy their culture and property
rights, but rather one where the law becomes a barrier to their enjoyment
and protection. The recent Federal Court decision in De Rose also demonstrates
this trend towards limiting the recognition of Indigenous relationships
to land. These decisions are inconsistent with international law which
requires a State to maintain and protect Indigenous culture, to ensure
racial equality and to ensure the effective participation of Indigenous
people in decisions that affect them.

The evaluation of
these decisions in the Native Title Report 2002 focuses on the
way in which the Court has interpreted the statutory definition of native
title under s223(1) of the Native Title Act. The report notes:

  • the requirement
    under the Native Title Act that Indigenous laws and custom be
    translated into a bundle of native title rights and interests diminishes
    the legal recognition given to the profound relationship Indigenous
    people have with their land;

  • the recognition
    of native title excludes recognition of the traditional laws and customs
    by which those rights and interests were created;

  • the recognition
    of native title excludes recognition of the law-making capacity of Indigenous

  • the recognition
    of native title is limited to the rights and interests created under
    the traditional laws and customs prior to sovereignty;

  • the Court's interpretation
    of s223(1)(a), which requires observance and acknowledgement of traditional
    laws and customs, operates to exclude the contemporary manifestation
    of Indigenous culture by requiring that such observance and acknowledgement
    be uninterrupted since the acquisition of sovereignty, by a society
    which has been in continuous existence since sovereignty;

  • the Court's interpretation
    of s223(1)(b), which requires that Indigenous people have a connection
    to the land operates to exclude claims which cannot show a high level
    of cultural knowledge about and connection to a specific area of land;

  • the requirement
    that rights and interests be recognised by the common law under s223(1)(c)
    has resulted in the non-recognition of important sea rights.

In Yorta Yorta
the Court's construction of sovereignty forbids the recognition of two
law-making entities, Indigenous and non-Indigenous. This has important
consequences for the recognition of native title. The Court reasoned that
the Indigenous law-making system became defunct upon British sovereignty
and as a result native title is limited to rights and interests created
prior to the imposition of British sovereignty.

Such a finding is
at odds with important human rights principles as they apply to Indigenous
peoples, particularly Indigenous peoples' right of self determination.
It is also inconsistent with decisions in Canada and North America where
the imposition of British sovereignty, while diminishing the right of
Indigenous people to govern themselves, continues to allow this in various

The High Court's
approach also confines native title rights and interests to those that
were exercised prior to the acquisition of sovereignty and requires that
native title be understood as 'a bundle of rights', as explained by the
High Court in Miriuwung Gajerrong. The Report states; 'the bundle
of rights metaphor is a construction of native title which epitomises
the disintegration of a culture when its law-making capacity, that is
its sovereignty, is neatly extracted from it. This metaphor creates an
inherently weak title, enabling parts of native title to be extinguished
easily and in a piecemeal way.'

2 - Extinguishment of Native Title

The law in relation
to the extinguishment of native title is clarified in the High Court's
decisions in Miriuwung Gajerrong and Wilson v Anderson.
The Court made it clear at the outset that the primary source for determining
the extinguishment of native title is the Native Title Act and
in particular the distinction between complete and partial extinguishment
contained in the confirmation provisions of the Act. Native title is extinguished
either completely or partially wherever an inconsistency arises between
the enjoyment of rights to land created by the non-Indigenous legal system
and the enjoyment of rights over land created by the traditional laws
and customs.

From a human rights
perspective the extinguishment of native title as it occurs in the Australian
legal system gives rise to a number of concerns.

  • First, the 'inconsistency
    of incidents test' fails to provide for the co-existence of interests
    and instead excludes native title whenever an inconsistency occurs.
    Other options, such as that suggested by Justice North in the Full Federal
    Court appeal of the Miriuwung Gajerrong case, allow for the suspension
    of native title for the duration of the inconsistency and thus provide
    a basis for co-existence between Indigenous and non-Indigenous interests.
    Justice North's position was rejected by the High Court.

  • Second, the legislative
    mechanisms under the Native Title Act for controlling the extinguishment
    of native title by the creation of tenures are utilised only to prescribe
    the extinguishment of native title. The Report provides a useful table
    which outlines the number and type of tenures which extinguish native
    title under the Native Title Act in the Miriuwung Gajerrong
    and Wilson v Anderson decisions.

  • Third, the Native
    Title Act
    fails to limit the extinguishment of native title resulting
    from the creation of tenures other than those specified in the Native
    Title Act
    , even though mechanisms are available to control this
    at a legislative level. The Report recommends that the non-extinguishment
    principle be utilised to limit the extinguishment of native title and
    ensure the survival of Indigenous interests on land, particularly in
    respect of nature reserves.

  • Fourth, the Native
    Title Act
    fails to limit the extinguishment of native title by tenures
    which are no longer current. The Report tabulates the historic tenures
    that operated to extinguish native title rights in the Miriuwung
    case. Utilisation of the non-extinguishment principle
    would overcome the extinguishing effect of these tenures without interrupting
    the enjoyment by non-Indigenous people of their current proprietary

  • Finally, there
    is no provision for compensation for the extinguishment of native title
    under the confirmation provisions of the Native Title Act except
    in limited cases (where the Racial Discrimination Act would apply
    to invalidate the tenure). There is no compensation for the extinguishment
    of native title by the operation of the common law, except after 1975
    where the Racial Discrimination Act would operate to provide
    this. The failure of the government to implement the social justice
    package proposed in 1993 as a complement to the Native Title Act
    makes the compensation issue crucial. Protection against the arbitrary
    deprivation of property is a fundamental tenet of both the domestic
    and international legal system and should be available to Indigenous
    as well as non-Indigenous titleholders.

3 - Discrimination and native title

At its fundamental
level, the extinguishment of native title, whereby pre-existing Indigenous
interests give way to newly created non-Indigenous interests, is discriminatory.
The 2002 Native Title Report examines the way in which the High
Court applies the Racial Discrimination Act to the creation of
tenures after 1975 and its effect on native title rights. The report concludes
that, on the High Court's own analysis, the extinguishment of native title,
both under the Native Title Act and at common law, is not only
discriminatory at international law but fails to meet the standards of
equality under domestic law.

A non-discriminatory
approach to the protection of native title 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. Constructed in this way, native title law should be
a vehicle for the continued enjoyment and protection of Indigenous law
and culture.

The Commonwealth
has the legislative capacity to limit the extent to which extinguishment
affects Indigenous interests in land and to ensure compliance with international
and domestic standards of equality, recognition and respect for Indigenous
cultural identity and non-discrimination. These standards can be applied
to both recognition and extinguishment of native title

4 - Implications of Miriuwung Gajerrong and Wilson v Anderson

The findings of the
High Court in Miriuwung Gajerrong and Wilson v Anderson
result in the extinguishment of native title over a significant area of
land. In New South Wales, the finding that perpetual grazing leases completely
extinguish native title will affect 15 out of the 20 native title applications
lodged in the Western Division. In Western Australia, where eight percent
of the state is held within the conservation estate, the extinguishment
of native title on nature reserves will affect many Indigenous people.
Such findings undermine the exercise and enjoyment of culture under Article
27 of ICCPR and seriously inhibit the exercise of rights of self determination
and effective participation in relation to traditional country. The finding
in Western Australia on nature reserves is also at odds with contemporary
values of conservation, sustainability and non discrimination. Such incongruity
invites a policy response. In consideration of these issues the 2002
Native Title Report
offers a policy framework, supported by key human
rights standards, that may assist the Western Australian Government and
Aboriginal groups in achieving a just and appropriate resolution of this

Similarly the effect
of extinguishment on the human rights of Aboriginal people in western
New South Wales mandates a policy response that acknowledges the continuing
relationship of Aboriginal people to their traditional land and provides
a mechanism to ensure the protection, enjoyment and recognition of this
relationship. Regional agreements provide a framework to address outstanding
issues of caring for country, being on country and building communities.

5 - Native title: the way forward

The clarification
of the principles of recognition and extinguishment of native title by
the High Court marks the end of the developmental phase of native title
law. The 2002 Native Title Report finds that the law fails to meet
the human rights standards required at international law. It is thus appropriate
that a process of re-evaluation takes place at the political level. This
is particularly pressing in view of the Court finding in Miriuwung
that the Native Title Act 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. Responsibility for the protection of native title can no longer
be conveniently shifted between the legislature and the common law. The
Commonwealth must now accept responsibility for the law as it stands and,
equally important, re-evaluate the means by which the law can be changed
to make it consistent with Australia's international law obligations.

From a human rights
perspective there are two factors which must direct the reform of the
native title system. First, all decisions affecting native title must
be taken with the free and informed consent of Indigenous people. This
requires the establishment of a process for the effective participation
of Indigenous people as part of the broader reform process. Where the
capacity of Indigenous people to participate is hampered, either through
limited resources or limited decision-making structures, provision must
be made to address these deficiencies to enable genuine negotiation to
take place. Second, the benchmarks for reform must be the human rights
of Indigenous people.

The chief mechanism
by which the Native Title Act effects both the protection of native
title and its extinguishment is through prescribing what State and Territory
laws are valid and the conditions and effect of their validity. State
and Territory governments are then authorised to enact legislation which
extinguishes native title in accordance with the NTA. Thus there are two
legislative tiers by which the extinguishment of native title takes place:
first at the level of Commonwealth legislation and the nature of the authority
that this legislation gives to State and Territory governments; and second
at the level of State and Territory legislation and the enactment of legislation
that extinguishes native title. There is a third tier by which the extinguishment
of native title may take place; through agreements between stakeholders.
These three tiers need to be addressed in any reform process.

  • Tier One: Amending Commonwealth

The process of amending
the Native Title Act to make it consistent with human rights principles
must utilise the mechanisms of 'validity' and 'invalidity' to redress
the balance between protection and extinguishment controlled by the Act.
These mechanisms determine the nature and extent of the laws that can
have an extinguishing effect on native title. As the High Court said in
Western Australia v The Commonwealth [5], a law
protecting native title from extinguishment must either exclude the application
of State and Territory laws or prescribe the areas within which those
laws may operate.

The 2002 Native
Title Report
recommends that rather than validating or prescribing
the extinguishing effect of non-Indigenous tenures on native title the
Native Title Act should prescribe the non-extinguishing effect
of the majority of tenures. The non-extinguishment principle provides
for the co-existence of native title and other interests allowing non-Indigenous
interests to be given full enjoyment and Indigenous interests to be suspended
where their enjoyment is inconsistent with the creation or enjoyment of
non-Indigenous interests and then to resume on their cessation. While
the non-extinguishment principle still prioritises non-Indigenous interests
over Indigenous ones, it is nevertheless far preferable to the permanent
extinguishment of native title. It is a principle that should replace
the finality and permanency of extinguishment for the majority of tenures.

Thus, in relation
to non-exclusive leases for instance, the Native Title Act would
need to stipulate that the non-extinguishment principle applied rather
than leaving this to the common law. Another tenure that would require
identification in this way is a mining lease, which in the Miriuwung
decision was found to permanently extinguish particular
native title rights and interests, even though, in the validation provisions
of the Native Title Act, the non-extinguishment principle applies.
This disjuncture could be resolved through legislative amendment in the
way suggested.

In relation to nature
reserves in Western Australia, found by the High Court to extinguish native
title completely, the concern is raised that the non-extinguishment principle,
which allows non-Indigenous interests to prevail over native title, may
not be appropriate to promote the full enjoyment of native title rights.
Interests that complement each other in this way must be identified and
specifically addressed in the Native Title Act to ensure full enjoyment
of the traditional connection that Indigenous people have with the land.

  • Tier Two: Amending State
    and Territory Legislation

The Native Title
, through the validation and confirmation provisions, stipulates
that the effect of creating specified tenures or classes of tenures is
to extinguish native title either completely or partially. Under this
authority, State and Territory governments are left to enact legislation
which extinguishes native title in respect of these tenures. Without this
authority, State and territory legislation extinguishing only native title
interests would be discriminatory and invalid under the Racial Discrimination

While States and
Territories are given immunity from the operation of the Racial Discrimination
by the Native Title Act, they are not required by the Native
Title Act
to enact discriminatory legislation extinguishing native
title in respect of the tenures specified therein. Thus the States have
capacity to redirect native title towards a non-discriminatory goal by
controlling whether, or the extent to which native title is extinguished
or impaired by the creation of these specified tenures.

A framework for negotiations
between the Western Australian government and Aboriginal stakeholders
in relation to conservation estates, including nature reserves, is proposed
in chapter 4. Importantly any such negotiation process, whether it involves
amending State and Territory legislation or reaching an agreement requires
the effective participation of Indigenous stakeholders and, through this
process, their informed consent.

  • Tier Three: Agreements

A concept which appears
to be given general support from government, industry and Indigenous parties
alike, is the benefit of negotiating native title, its recognition and
its relationship to other interests on the land, through agreement rather
than litigation. This process can include the making of a native title
determination by the Federal Court with the consent of the parties. Agreements,
framed by human rights principles rather than discriminatory principles
contained in the Native Title Act, are an important tool for providing
a stable and enduring basis for a dynamic and long term relationship between
Indigenous and non-Indigenous people over land.

Now that the key
principles guiding the law of native title have been crystallized by the
High Court and the implications of these decisions are being felt by Indigenous
people, a re-evaluation of the law needs to occur at the political level.
Human rights principles should be at the forefront of such a process.

You can also access:

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

Western Australia & o'rs v Ward & o'rs [2002] HCA 28 (8
August 2002) (Miriuwung Gajerrong).

Wilson v Anderson and or's [2002]29 (8 August 2002) (Wilson
v Anderson

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

(1995) 183 CLR 373.

March 2003.