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Native Title Report 2001: Chapter Three: Negotiating co-existence through framework agreements

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Native Title Report 2001

Chapter Three: Negotiating
co-existence through framework agreements


Introduction

  • Native title
    interests are entitled to the same level of protection as non-Indigenous
    interests
  • Negotiation
    of agreements should encourage and allow continued observance of Indigenous
    laws and customs
  • Negotiation
    of agreements should recognise Indigenous governance within their
    traditional lands
  • Recognition
    that native title is a group right and that the inter-generational
    aspect of the right must be protected.
  • Recognition
    that native title is a unique interest.
  • Native title
    parties' rights should not be interpreted as "frozen" rights.

Native title
agreements are limited by the discriminatory standards contained in
the NTA

Framework
agreements within human rights principles

  • Negotiating
    governance through framework agreements
  • Negotiating
    development through a framework agreement

Issues to
be considered in using framework agreements

Recognising
Indigenous interests

  • Non-extinguishment
    principle
  • Recognition
    of contemporary Indigenous culture

Recognising
the native title party

  • Recognising
    native title as a group right
  • Connection
    reports
  • Capacity building

Enforcement
of Framework Agreements

Entrenching
framework agreements


Introduction
[1]

A stable and enduring
basis for a dynamic and long term relationship between Indigenous and
non-Indigenous people over land is emerging through negotiation and agreement-making.
Native title agreements are increasingly seen as an important tool in
defining the rights of native title holders over their land. But here,
as in other aspects of native title, there is concern that there are currently
no mechanisms to safeguard human rights principles. Substantive, just
and equitable outcomes are only achieved if there are minimum standards
in place to recognize and protect these principles. This chapter focuses
on framework agreements as an opportunity for both Indigenous and non-Indigenous
parties to settle upon a set of standards for the co-existence of their
interests in land. The following human rights principles provide the basis
for a productive, stable and enduring relationship:

  • Non-discrimination
    on the basis of race as required by Article 2 International Convention
    on the Elimination of All Forms of Racial Discrimination
    (ICERD)
    and Article 26 International Convention on Civil and Political Rights
    (ICCPR);
  • Equal protection
    of property interests before the law as required by Article 5 ICERD
    and Article 17 Universal Declaration of Human Rights (UDHR);
  • Protection of
    the right to maintain and enjoy a distinct culture as required by Article
    2 ICERD and Article 27 ICCPR; and
  • Right of Indigenous
    people to effective participation in decisions affecting them, their
    lands and territories as required by Article 5(c) ICERD, Article 1 ICCPR,
    and Article 1 of the International Covenant on Economic Social and
    Cultural Rights
    (ICESCR).

Following from these
human rights standards the negotiation of native title agreements should
encompass the following principles:

Native title interests
are entitled to the same level of protection as non-Indigenous interests

Native title-holders
should not be required to give up native title as a condition of negotiating
a native title agreement. Negotiations that respect the equality of Indigenous
peoples' property rights with other property rights will not seek further
extinguishment of native title. Furthermore, where the legal question
of prior extinguishment is uncertain, but native title parties maintain
a relationship with the land based on traditional law and custom, negotiations
should proceed as if native title continues to exist. Even where native
title has been extinguished in part of the claim area, this should not
preclude negotiations regarding that land if the interest that extinguished
the native title has ceased (and the land has reverted to Crown title)
and the native title claimants maintain a connection with that land based
on the observance of traditional law and custom.

Negotiation of
agreements should encourage and allow continued observance of Indigenous
laws and customs

International human
rights treaties recognise that all peoples have an equal right to practice
and enjoy their distinctive culture. Native title negotiations should
not require native title parties to breach their laws and customs in order
to obtain the benefits of their native title interests.

Negotiation of
agreements should recognise Indigenous governance within their traditional
lands

International human
rights principles recognise that Indigenous peoples have a right to effective
participation in decisions affecting their traditional lands. In relation
to native title negotiations, this right should lead to:

  • Recognition of
    native title holders as owners or joint-owners and managers of the land,
    for example, provision for joint-management arrangements in national
    parks;
  • The group itself
    being able to determine membership of the native title party based on
    General Recommendation VIII of International Committee on the Elimination
    of Racial Discrimination which states that 'group membership shall,
    if no justification exists to the contrary, be based upon self-identification
    by the individual concerned.' [2]

Recognition that
native title is a group right and that the inter-generational aspect of
the right must be protected.

Recognition that
native title is a unique interest.



Native
title has cultural, religious and social significance. Its economic value
to Indigenous people is limited by the fact that it is inalienable. Consequently,
purely economic assessments of land value are not appropriate for the
calculation of compensation. Negotiated agreements should reflect this.

Native title parties'
rights should not be interpreted as "frozen" rights

It must be recognised
that, just as non-Indigenous Australian culture has changed since the
British acquisition of sovereignty, so have Indigenous cultures. 'Connection'
to land may include contemporary cultural beliefs and practices forming
a distinct Indigenous culture developed from an earlier traditional culture
as it existed at the time of the acquisition of British sovereignty.

Native
title agreements are limited by the discriminatory standards contained
in the NTA

An increasing number
of native title agreements have been reached across the country, both
within and outside the provisions of the Native Title Act (NTA).[3]
Many agreements reached outside the NTA have emerged from negotiations
which were initially conducted within the processes of the NTA. Others
were negotiated entirely outside the NTA, with the provisions of the NTA
acting as a catalyst. In all instances the NTA and the benchmarks contained
within it are fundamental to the process by which native title agreements
are reached and to the rights contained within them.

As explained in the
Native Title Reports 1998, 1999 and 2000 the benchmarks
contained in the amended NTA are racially discriminatory in significant
ways. In the four sets of provisions which these Native Title Reports
identify as discriminatory - validation, confirmation, primary production,
and right to negotiate - any conflict that arises between native title
interests and non-Indigenous interests is resolved by ensuring that non-Indigenous
interests always prevail over Indigenous interests. [4] The
failure of the NTA to provide native title-holders with the same level
of protection of their interests as that provided to non-Indigenous interests
is racially discriminatory. Furthermore, these provisions were adopted
in July 1998 without the informed consent of Indigenous people.

The future act provisions
of the NTA, under Division 3 Part 2, are particularly important to agreement-making
because they determine whether and at what level Indigenous people are
engaged in negotiations concerning mining, compulsory acquisitions and
state-wide land use policies including primary production levels, water
and airspace management, renewals and extensions of Crown leases, public
facilities and national parks.

In Chapter 1 of this
report I deal with the way in which the right to negotiate over mining
and certain compulsory acquisitions has been interpreted and administered
so as to reduce Indigenous engagement with decision-makers over these
future acts. The procedural rights provided in the NTA [5]
- to be notified and to comment where state governments propose future
acts as part of implementing state land use policy - are also important
to Indigenous participation on land the subject of a native title claim,
even though they are less extensive than the right to negotiate. Two recent
decisions by the Federal Court have significantly limited the extent to
which procedural rights can be relied upon by Indigenous parties to facilitate
their negotiations with government:

Lardil, Kaiadilt,
Yangkaal and Gangalidda Peoples v Queensland
[6]

In the course of
a native title determination application before the Federal Court, the
Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples sought a declaration
that a buoy mooring authority issued by the State of Queensland to Pasminco
Century Mine Limited was invalid. The basis of their application was
the failure of the State to comply with the procedural requirement in
the NTA to notify and give native title parties an opportunity to comment
on the proposal. On appeal the Full Federal Court upheld the primary
decision that the failure by the government party to accord procedural
rights of notification and consultation to the native title parties
did not invalidate the future act undertaken.

Harris v Great
Barrier Reef Marine Park Authority
[7]

Between November
1998 and February 1999 the native title parties received 109 notices
for permits, primarily for tourism activities, in the area of sea covered
by their native title claim. The notices did not disclose the identity
of the applicant for the permit in each case nor the area or location
within the claim area where the proposed act was to occur. The majority
of the notices provided little more than a blanket description of the
areas.

The Full Federal
Court upheld the primary court decision that the notices complied with
the requirements of section 24HA NTA, and that there was no requirement
in subsection 24HA(7) to notify the registered native title claimants
before an Authority had determined to grant the permit requested. [8]

These two decisions
raise serious questions about the value and utility of the procedural
rights available to native title parties under Subdivisions H - M, Division
3 Part 2 NTA. Their practical consequence for native title parties is
that the few procedural rights that do exist under the NTA do not necessarily
provide an opportunity for Indigenous parties to negotiate with government
on how decisions affecting their land should be made.

I have advocated
legislative amendment in my preceding three Native Title Reports
as the most secure method of removing the discriminatory benchmarks in
the native title process and establishing meaningful and beneficial minimum
standards for future relationships on native title land. While there is
some leeway within the NTA to enter into Indigenous Land Use Agreements
(ILUAs) that reverse the extinguishing effect of the validation of intermediate
period acts (under sections 24BB and 24CB) this is insufficient to reframe
the entire agreement-making process on the basis of equality. In any case,
no ILUA to date has relied on these provisions. What is required is for
governments to commence fresh negotiations with Indigenous representatives
and native title applicants with the purpose of ensuring that the ILUA
has the consent of Indigenous people.

The NTA should be
amended so that the agreements that will inevitably continue to be reached
between Indigenous and non-Indigenous people over native title can form
the basis of an enduring and stable relationship between them. Where racial
discrimination remains a part of the agreement-making process, the relationship
between Indigenous and non-Indigenous people will always be contingent
upon its eradication.

Framework
agreements within human rights principles

Framework agreements
provide an alternative course available to negotiating parties to ensure
the adoption of minimum standards in agreement-making consistent with
the human rights principles outlined above. There are many examples of
States and peak bodies entering framework agreements with Indigenous representatives
in order to set standards and templates for subsequent site-specific or
project-specific agreements.

Negotiating governance
through framework agreements

A framework agreement
can provide for interaction between the native title party and a governing
body rather than having the process imposed through legislation or government
policy. This, in turn, can ensure improved governance and service delivery
tailored to local priorities. [9] Framework agreements
can also provide a tool for prioritising limited resources to accommodate
Indigenous concerns. [10]

At the State government
level there has been an indication in several states that there is a willingness
to establish a framework for the co-existence of Indigenous and non-Indigenous
interests in land. The South Australian government, Farmers Federation
and Chamber of Commerce are working with native title groups and the Aboriginal
Legal Rights Movement (the representative body) to establish a state-wide
framework agreement in which a wide range of issues including native title
determinations, access agreements, service provision, public health, heritage
protection, intellectual property rights, water management, environmental
management infrastructure, heritage clearance and notification procedures
are on the table.

In Victoria the State
government, ATSIC and the Mirimbiak Nations Aboriginal Corporation have
agreed to a Protocol for the negotiation of a native title framework
agreement for Victoria
[11] in order to resolve
native title applications as well as a broad range of issues outside of
native title.

In New South Wales
the NSW Aboriginal Land Council and NSW Minerals Council have signed a
Protocol for the negotiation of agreements for exploration and mining
for NSW.

In Queensland the
State government and Indigenous representatives have negotiated a draft
state-wide agreement to establish procedures for negotiating an ILUA for
determining the process for issuing of notifications under s29 of the
NTA. A further state-wide ILUA deals with the exploration permit backlog
by providing a standard arrangement for pending exploration tenements
to be granted in the relevant claim area in return for certain conditions
including heritage and environmental protection, and payments to the relevant
claim group. [12] These framework agreements are discussed
in detail in Chapter 1 of this Report.

The Western Australian
government is currently reviewing its guidelines in relation to native
title generally and s29 notifications.

Local governments
can also use framework agreements to address Indigenous issues with the
informed consent of the traditional owners in their shire. One example
of this is the Rubibi Interim Agreement which commences:

The Shire of Broome
acknowledges that the Aboriginal people are the original inhabitants
of the Broome region, and that according to their continuing law, traditions
and customs it remains their traditional country. [13]

Another is the Agreement
made between the Quandamooka Land Council and the Redlands Shire Council
in Queensland. [14]

Negotiating development
through a framework agreement

The 1996 Cape
York Peninsula Heads of Agreement
agreement [15]
between Indigenous people, pastoralists, and conservation groups shows
that, at a framework level, native title parties can secure their entitlements
and interests in developments on their land. For non-Indigenous parties,
the framework agreement increased certainty by minimising later opposition
to their activities. The initial framework agreement resulted in some
'ground rules' between Aboriginal people and pastoralists:

Aboriginal people
gain a tangible working agreement for the resolution of native title
issues by negotiation rather than litigation, while [pastoralists] gain
security in relation to native title. Conservation groups…gain…a
commitment to World Heritage values throughout the Cape York Peninsula.
[16]

The agreement records,
acknowledges and respects the differing interests in the Cape York area:

1. The CU [Cattlemen's
Union of Australia], ACF [Australian Conservation Foundation] and TWS
[The Wilderness Society] acknowledge and affirm that the Aboriginal
people, represented by the CYLC [Cape York Land Council], and the Peninsula
Regional Council of ATSIC, are the original inhabitants of Cape York
Peninsula who are entitled by their traditional law to their traditional
customs and culture including access to areas of traditional significance.

2. The Aboriginal
people of Cape York Peninsula, the ACF and TWS acknowledge and affirm
that pastoralists of Cape York (including non CU members) are significant
landholders who have existing legal rights and concerns related to their
industry and lifestyle.

3. The parties
acknowledge that there exist on Cape York Peninsula areas of significant
conservation and heritage value encompassing environmental, historical
and cultural features, the protection of which is the responsibility
of State and Federal governments in conjunction with the parties. [17]

The original framework
agreement was re-affirmed and expanded in September 2001 when further
parties including the Queensland government, the Cairns and Far North
Environment Centre, the Balkanu Cape York Development Corporation, and
the Peninsula Cattlemen's Association [18] joined in
the agreement. The Cape York Agreement establishes the basis for a long
term relationship between the parties that is not only equitable and based
on the informed consent of the traditional owners of the region, but is
conducive to long term development projects on the land concerned.

Issues to
be considered in using framework agreements

The process of building
sustainable and equitable relationships between all stakeholders requires
some basic issues to be resolved early in the negotiation process. Framework
agreements can be used to recognise Indigenous interests, identify the
relevant native title parties and to establish enforcement procedures.

Recognising
Indigenous interests

Non-extinguishment
principle

Framework agreements
can ensure that Indigenous interests are recognised by adopting the non-extinguishment
principle as a minimum standard on which to base the relationship of Indigenous
and non-Indigenous interests on country. It is encouraging to note government
support for this principle as evidenced by the Commonwealth Attorney-General's
submission to the Inquiry into ILUAs conducted by the Parliamentary Joint
Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund:

[T]he Commonwealth's
position when it is negotiating ILUAs - is that unless there are very
good reasons that native title has to be extinguished…the non-extinguishment
principle will apply. [19]

The non-extinguishment
principle, referred to in various agreements, confirms that the non-Indigenous
interest has priority for a specified time but that when the inconsistent
non-Indigenous interest is removed, Indigenous rights can be recognised
and enforced under the NTA. While this ensures the survival of non-Indigenous
interests it also replicates the discriminatory hierarchy of interests
contained in the definition of the non-extinguishment principle in section
238 of the NTA. However the non-extinguishment principle can be used in
a more potent way in framework agreements to overcome the narrow and discriminatory
approach to the recognition of native title under the legislation.

An example of this
is in the recent agreement in South Australia between various exploration
companies, the Yandruwandha/Yawarrawarrka Traditional Land Owners (Aboriginal
Corporation), and the State government which established a process for
agreed land access and usage. [20] The companies' obligations
under this agreement apply regardless of whether the Indigenous parties
obtain a determination of native title from the court and are not dependent
upon the native title party establishing native title over the Licence
Area or obtaining a determination of native title. [21]

The non-extinguishment
principle which guided an agreement between the Indigenous people in the
Cape York region and Comalco went so far as to recognise Indigenous interests
even though it was likely that, at law, native title had been extinguished.
[22]

The adoption of the
non-extinguishment principle as a basis for future agreements would curtail
the use of compulsory acquisition as a means of progressing developments
that have been held up either because of disputes with native title parties
or because of time-consuming processes. This practice was referred to
in evidence before the PJC Inquiry on ILUAs by Councillor Ross, President
of the Australian Local Government Association, as one adopted by some
local councils in Australia:

CHAIR - It seemed
unfortunate to me that a number of these councillors had got to a point
of frustration such that they felt that the best way to go was compulsory
acquisition, which is really a position of last resort and quite an
unfortunate one brought about by a sense of frustration at the delay
and complexity of what started out to be for them quite a simple process.

Councillor Ross
- I think that we have made that point. We think that it is a poor decision
to make and people have been improperly advised. [23]

Mr Wensing, consultant
for the Australian Local Government Association, also gave an example
of the use and implications of the compulsory acquisition approach to
development:

[In] the Cairns
City Council acquisition of land on the foreshore to facilitate private
development… they started the process by serving a compulsory acquisition
notice on the registered claimants. Of course, then they went and knocked
on the door and said they wanted to negotiate in good faith. Well, they
have just destroyed that, haven't they? I am pleased to see that in
the long run they withdrew the compulsory acquisition notice and decided
to head down the agreements route. [24]

Framework agreements
between governing bodies such as local councils or peak industry bodies
which adopt the non-extinguishment principle would ensure that economic
development of an area did not occur at the expense of native title interests
but were built upon a recognition of them.

Recognition of
contemporary Indigenous culture

The rights and interests
protected under native title should be interpreted as part of a contemporary
cultural system. The judgment of Justice Kirby in the High Court in the
Croker Island case [25] confirms that the common law
of native title protects Indigenous culture in its current manifestation
and not as it was practiced before the acquisition of sovereignty. Justice
Kirby saw the "frozen rights" approach as a breach of human
rights principles:

It is not enough
merely to allow Indigenous peoples to carry out their traditional economic
activities without legal protection for their exercise of control and
decision-making in relation to developments (including the use of natural
resources)…The principle of non-discrimination must include a recognition
that the culture and laws of Indigenous peoples adapt to modern ways
of life and evolve in a manner that the cultures and laws of all societies
do. [26]

Although Justice
Kirby's judgment was in the minority in other respects, none of the other
three judgments disagreed with his Honour's comments on this issue. Framework
agreements which embody the principles enunciated by Justice Kirby would
ensure that the economic interests of Indigenous people were not limited
to traditional rights to hunt and fish on particular land but encompassed
a right to participate in all developments that might occur on native
title land.

Recognising
the native title party

Recognition of Aboriginal
people as the traditional owners of an area of land is an important principle
that can be addressed through framework agreements. This can be done in
various ways. The Protocol for the negotiation of a native title framework
agreement for Victoria
between the State of Victoria, ATSIC and Mirimbiak
Nations Aboriginal Corporation has the following introductory paragraphs:

The parties acknowledge
that the High Court of Australia in Mabo v Queensland (No. 2) (1992)
held that the common law of Australia recognises a form of native title
that reflects the entitlement of the indigenous inhabitants of Australia,
in accordance with their laws and customs, to their traditional land…

The State acknowledges
that the traditional Aboriginal owners of the land and waters in Victoria
may hold native title to their traditional lands. Accordingly, the State
will treat all lands in Victoria in accordance with the provisions of
the NTA, and will conform to the future act regime of the NTA. [27]

These clauses seek
to augment the law by accepting that, even though native title holders
may not have established their title to the land, they will be accorded
the benefit of the procedural rights under the NTA.

Recognising native
title as a group right

Native title is a
group or communal right. [28] There is mutual benefit
to parties to a native title agreement including some level of definition
of the membership of the native title group. For Aboriginal people it
ensures adherence to the principle that no-one can speak for another person's
country. For non-Indigenous parties it ensures that negotiations are being
held with those people who have the authority to provide binding promises
in relationship to the land in question. Acknowledgement of the Indigenous
parties can be addressed through framework agreements so that Indigenous
peoples' connection and history with the land are respected.

A problem may arise
where it is unclear whether the persons negotiating the agreement represent
all their purported constituents. A protocol between the Queensland Indigenous
Working Group and Queensland government dealt with this issue in a manner
that sought to be respectful of the negotiating parties:

This Protocol does
not prevent the Queensland Government consulting with other Indigenous
parties as it sees fit on a case by case basis. However, in every consultation
with Indigenous parties, the Queensland Government will have due regard
to the representative mandate of those parties when taking into account
and lending weight to the parties' views. [29]

The Queensland Protocol
was part of the process that led to the recent adoption of a draft State-wide
agreement dealing with mineral exploration discussed above.

Effective participation
requires that all relevant Indigenous people be included in future negotiations.
It is also useful to ensure all the parties who may be affected are involved
from an early stage. The South Australian government has been exemplary
in this regard by ensuring that funding is provided to assist with meetings
and discussions between all relevant Indigenous groups to determine their
interest in a potential state-wide framework.

Connection reports

One way in which
governments and companies deal with the issue of identifying Indigenous
parties is to require a connection report from the Indigenous group. A
connection report is a document, usually prepared by an anthropologist
and often after months of research, providing genealogies on the members
of the Indigenous group and identifying interests relevant to the area
being considered.

It has been observed
that 'the purpose and mandatory inclusion of Connection Reports in mediation
has occurred neither systematically nor as a standardised government response
Australia-wide'. [30] Some governments, for example
Western Australia prior to the change of government, have insisted on
receiving such a report as a pre-condition to negotiation with a native
title claim group.

I provided a submission
to the recent Western Australian review of native title processes ( the
Wand Review) commending the Western Australian government moves to identify
and adopt appropriate processes for negotiating agreements.[31]
In this submission I cautioned against an approach where connection reports
are required to 'legitimise' a native title claim. When legitimacy is
the purpose for requiring the connection report there is a danger that
they will take on a pseudo-evidential character that is more appropriate
for a court than a negotiation. While negotiations may result in a consent
determination, there is no guarantee that this will in fact occur.

The approach of requiring
legitimation of Indigenous parties presents an obstacle to the negotiation
of framework agreements where non-Indigenous parties insist on having
a comprehensive connection report beforehand. It is therefore important
to consider what role a framework agreement should specify for any future
connection report. One obvious way is to limit the cases where a connection
report is needed. In Victoria, the government has stated in its Guidelines
for Native Title Proof: Victoria
[32] that it will
commence mediations without first receiving a connection report, 'however,
meaningful progress on future land management matters will be limited
until issues of native title proof have been resolved'. It can 'accept…evidence
in a variety of forms, as long as the collective result can be assessed'
[34] and 'will accept evidentiary material from claimants
in a range of forms, either as a unified connection report or in some
other form of presentation suitable for assessment'. [35]

The Victorian government
policy operates on the basis that the type and extent of information required
depends on the matters sought to be agreed upon. There is a range of escalating
requirements from a future-act ILUA (little evidence needed) to a consent
determination resulting in a Court order of native title. The latter is
more likely to require a connection report. [36]

Framework agreements
can ensure that the approach adopted by state governments to identifying
native title parties and their interests is both tailored to the circumstances
of the relationship being negotiated and arrived at collaboratively with
the informed consent of native title parties. The Victorian government
adopted an inclusive approach to establishing how a connection report
would be incorporated into any native title negotiations by consulting
with the State's Land Council and other parties pursuant to the Protocol
for the negotiation of a native title framework agreement for Victoria

to settle these issues.

The Western Australian
Aboriginal Native Title Working Group (WAANTWG) has proposed that Indigenous
parties provide a negotiation report rather than a connection report to
clarify issues among relevant Indigenous groups in relation to what interests
should be addressed in framework agreements and resulting negotiations.
I am pleased to note that aspects of WAANTWG's proposal are reflected
in the final report of the Wand Review with the suggestion that governments
encourage the development of a report by native title claimants dealing
with issues to be resolved and the outcomes they seek. [37]
Agreements offer an opportunity to return decision-making power over group
membership to Indigenous people, and are consistent with the human rights
principle of self-identification for Indigenous people outlined above.

Capacity building

Capacity building
is about ensuring that native title parties can participate in a system
which has been devised by the non-Indigenous legal and political system
and which seeks to give recognition to Indigenous people's traditional
laws and customs. While Indigenous interests can be represented by non-Indigenous
experts, human rights principles require that no decisions affecting native
title land should be made without the informed consent of those affected.
[38]

The question then
arises as to how to ensure Indigenous communities are effectively involved
in a framework agreement. Considerable work will be involved in this because
it 'requires effective processes not only to seek community views on relevant
issues, but also to disseminate information on existing and likely project
impacts and on the options available to the community, so that people
can make informed decisions'. [39]

Informed consent
cannot be given by a disparate, disadvantaged group, and there may often
be a need to address issues of governance and capacity building before
even considering the issues to be negotiated. It should not be assumed
this is a process in which non-Indigenous people tell Indigenous groups
how to organise themselves - the creation or strengthening of Indigenous
governance must occur in a way appropriate to the culture of the groups
involved. An example from the Pilbara region of Western Australia is illustrative.
In the early stages of negotiation between three Indigenous groups and
the mining company Hamersley Iron, there was no single Aboriginal corporation
in the Pilbara that commanded the necessary support to handle negotiations
on behalf of the three groups. The Aboriginal groups decided they would
join together for the negotiations and form a new Aboriginal corporation
known as 'Gumala' which had a governing committee comprising representatives
from each group. Hamersley Iron resourced Gumala to enable it to negotiate
on an equal footing, but did not participate in the organisation's decisions.
[40]

The aim of capacity
building is to ensure Indigenous people have the opportunity for effective
ongoing participation in decisions affecting their land; it does not make
those decisions. The process needs to be structured for opportunities
for real input at all appropriate times, [41] and not
just as a publicity exercise without meaningful involvement. Such a situation
occurred in recent government efforts to increase community involvement
in planning for an Australian marine conservation park. An advisory committee
was formed that included local representatives from people who fish (recreational
and commercial), naturalists, resources industry (off-shore and on-shore),
tourism operators and the aquaculture industry. The only Indigenous representative
was not local, and was a government employee from the capital city, many
hundreds of kilometres away. Local Indigenous people were invited to make
submissions to the advisory committee but were disappointed that they
were not represented when the decision was made.

A positive example
however is the comprehensive work toward a South Australian framework
agreement, dealing with issues of governance and capacity-building, which
has been progressing in that State since 1999. The government has provided
substantial funding to ALRM to facilitate meetings of Indigenous communities
throughout the state to consider options of a state-wide resolution of
native title issues. The process has been described as follows:

A framework…agreement
will set up the rules and guidelines for talking about native title,
but it will not control the final outcomes. The agreement will give
people a framework for how to talk to each other - what issues to consider,
how to organize meetings and who to talk with, but the final agreements
(ILUAs - Indigenous Land Use Agreements) about particular places would
be controlled by the native title claimants for those places, not this
statewide agreement. In other words, the framework is not a cage that
keeps ILUAs controlled, but a set of rules about how to make ILUAs.
[42]

In South Australia
native title has provided an opportunity for the empowerment of Indigenous
people, enabling them to re-organise their structures and take control
over their communities and their land. However this opportunity will be
lost to many communities if they are not properly resourced to put in
place the necessary processes for this to occur. I have noted in Chapter
2 of this report that the government has provided increased funds to ATSIC
in the 2001 - 2002 budget to be used for capacity building by Native Title
Representative Bodies (NTRB). While these funds are desperately needed
for this purpose, I discuss in the previous chapter how the granting of
tied funds in this way fails to appreciate the chronic under-funding of
representative bodies to perform their basic statutory functions.

Enforcement
of Framework Agreements

Once an equitable
basis for future relations is agreed upon, it is critical to consider
how framework agreements will be implemented and enforced by the parties.
In my 2000 Social Justice Report I advocated that effective framework
agreements have clearly targeted plans and adequate performance indicators,
and ongoing and independent monitoring and outcome evaluation. [43]

Where framework agreements
create legal relations, Indigenous parties may encounter enforcement difficulties
if the development envisaged has proceeded without providing promised
benefits, such as training or employment targets. An example may be where
a company obtains a mining tenement through agreement with native title
claimants. If the tenement-granting process has been properly followed
and the company complies with the relevant mining laws of that State and
any tenement conditions, the company does not forfeit the tenement even
if it breaks its agreement with the native title claimants. Enforcement
is particularly difficult where failure to comply with its side of the
bargain is not apparent until some time has passed. [44]

It is also useful
for framework agreements to specify within the document the consequences
of a party's default. One example of this is the Queensland exploration-backlog
ILUA [45] under which parties agree that conditions
protecting Indigenous rights form part of the conditions of tenement [46]
and that if these conditions are breached, the Indigenous party can trigger
action under the State's mining laws. [47] Agreements
can also provide for 'external' monitoring, for example by the local NTRB,
or by referring disputes to an independent third party.[48]
Alternatively, a process can be built into the framework agreement, for
example by a monitoring committee with its role and methods specified
in the agreement. [49]

Another method of
addressing implementation is to assign responsibilities for following
through on any areas identified for future work between the parties. [50]
One such example in Queensland specified the various matters that future
negotiations would attempt to address (including native title rights,
town planning and management, economic development, law enforcement, and
third party interests) and stated that the parties would jointly appoint
a Project Coordinator 'to undertake the day to day management of the negotiations
and [various studies]'. [51] The agreement also specified
the establishment of a steering committee, comprised of a 'balanced representation
of the parties, to negotiate on issues [specified in the agreement], instruct
and monitor the Project Coordinator, ...[and] facilitate consultation
with relevant stakeholders and the general public, as agreed by the parties'.
[52]

If the framework
agreement creates no legal relations between the parties and is simply
a protocol for future negotiations [53] or enshrines
agreed government processes, then enforcement under normal contract principles
will not be applicable. New South Wales has recently seen an example where
a framework agreement between the New South Wales government and the NSW
Aboriginal Land Council, aimed at recognising the procedural and substantial
rights of Indigenous people when the State government dedicates land as
a national park, was ignored by the State government. [54]

Registering a framework
agreement under the ILUA provision of the NTA can give a level of enforceability
to it. The benefit of adopting this approach is that registration of a
framework agreement as an ILUA gives it the status of a contract between
the parties. [55] This can provide greater protection
against a defaulting party than may exist under general legal principles.
However, in relation to the successors of registered ILUAs, the NTA's
provisions operate to bind only future native title parties, not future
non-Indigenous parties.[56] I have raised my concerns
in relation to these provisions with the PJC Committee which it noted
as a problem in its Report [57] but made no recommendations
to improve the situation. It simply stated:

[P]arties to ILUAs
and those drafting precedent agreements should be aware of these issues
[including racial discrimination in the NTA's enforcement of ILUAs]
and incorporate terms that resolve uncertainty and the need for a court
to determine questions'. [58]

In my view, the operation
of the NTA to entrench only Indigenous obligations in an ILUA and not
apply this same standard to non-Indigenous parties is racially discriminatory.
This discrimination should be resolved by legislative amendment.

Entrenching
framework agreements

The difficulty with
implementing a human rights approach to native title through framework
agreements is that they depend on being voluntarily adopted by those engaging
directly with Aboriginal people. The examples noted in this chapter demonstrate
that framework agreements are a viable option for some government and
commercial entities wanting to engage with Aboriginal people because the
agreements provide certainty and stability in the relationships that they
engender. However, even where framework agreements based on human rights
principles are a preferred option, the failure of the legal system to
provide mechanisms for Indigenous parties to enforce them requires a political
solution. A treaty between Indigenous and non-Indigenous people could
provide the ultimate framework for the renegotiation of native title relocated
outside of the NTA and the common law and positioned within a human rights
framework.

A treaty can provide
a process in which Indigenous rights to land can be squarely raised and
resolved with the informed consent of both sides. As was stated by the
Canadian Royal Commission on Aboriginal Peoples:

[N]othing is more
important to treaty nations than their connection with their traditional
lands and territories, nothing is more fundamental to their cultures,
their identities and their economies. We were told by many witnesses
at our hearings that extinguishment is literally inconceivable in treaty
nations cultures.

The treaty nations
maintain with virtual unanimity that they did not agree to extinguish
their rights to their traditional lands and territories but agreed instead
to share them in some equitable fashion with the newcomers. [59]

A recent United Nations
report by Special Rapporteur Miguel Alfonso Martinez, Study on treaties,
agreements and other constructive arrangements between States and indigenous
populations
, supports the treaty process as a means of resolving Indigenous
issues such as land rights:

Finally, the Special
Rapporteur is strongly convinced that the process of negotiation and
seeking consent inherent in treaty-making (in the broadest sense) is
the most suitable way not only of securing an effective indigenous contribution
to any effort towards the eventual recognition or restitution of their
rights and freedoms, but also of establishing much needed practical
mechanisms to facilitate the realization and implementation of their
ancestral rights and those enshrined in national and international texts.
It is thus the most appropriate way to approach conflict resolution
of indigenous issues at all levels with indigenous free and educated
consent. [60]

The Council for Reconciliation
included in its report to Parliament a draft Bill [61]
which forms a framework for the negotiation of unresolved issues between
Indigenous and non-Indigenous people through a treaty process. The objects
of the draft legislation include:

  • To acknowledge
    the progress towards reconciliation and establish a process for reporting
    on the nation's future progress;
  • To establish
    processes to identify and resolve the outstanding issues between Indigenous
    peoples and the Australian community;
  • To initiate a
    negotiation process to resolve reconciliation issues between Indigenous
    peoples, and the wider community through the Commonwealth government
    that will result in a Treaty or Agreement.

The underlying assumption
of the draft Bill is that the treaty process is an ongoing process in
which unresolved issues such as Indigenous rights to land must be squarely
raised and processes put in place for their resolution based on the informed
consent of both sides.

Once the treaty process
has been implemented it is important that its resultant gains are not
able to be removed by successive governments. That is because these gains
are not the outcomes of government policy or legislation, they are gains
derived from the right of Indigenous people to make decisions in relation
to the issues that affect them, including decisions over their land and
their resources.

To avoid derogation
of Indigenous people's treaty rights they must be constitutionally enshrined.
The Senate Standing Committee on Constitutional and Legal Affairs proposed
in its 1983 Report Two Hundred Years Later, the insertion of a
clause in the Constitution along the lines of s105A in which the Commonwealth
is empowered to make agreements with representatives of Aboriginal and
Torres Strait Islander peoples. This proposal remains a viable option
for ensuring that treaty rights are enforceable against all Parliaments.
[62]


1. Part
of this chapter is based on my Submission to the Parliamentary Joint Committee
on Native Title and the Aboriginal and Torres Strait Islander Land Fund,
Inquiry Into Indigenous Land Use Agreements (PJC Inquiry), August 2001.
This Submission is annexed to this Report.

2. International
Committee on the Elimination of Racial Discrimination, General Recommendation
VIII - Identification with a particular racial or ethnic group (Article
1, paras 1 & 4)
(UN document: A/45/18) 24 August 1990

3. A
draft report, Agreements between Mining Companies and Indigenous Communities
(December 2001), commissioned by the Australian Minerals and Energy Environment
Foundation (AMEEF) and prepared by Indigenous Support Services and ACIL
Consulting, has collected information on 140 agreements covering issues
of native title, mining and heritage matters. The report notes 'of the
approximately 140 agreements on the database…all but 4 were concluded
after 1994' (p13), but cautions that 'the database should be further developed
before it is made available as a resource to Indigenous, mining and other
interested parties' (ibid).

4. In
1999 the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner
argued to the Committee on the Elimination of All Forms of Racial Discrimination
that these provisions are discriminatory, see Submission by the Acting
Aboriginal and Torres Strait Islander Social Justice Commissioner of the
Australian Human Rights and Equal Opportunity Commission to the United
Nations Committee on the Elimination of Racial Discrimination Response
to the request for information in relation to Decision 1(53) concerning
Australia: CERD/C/53/Misc.17/Rev.2, 11 August 1998, 3 March 1999, paras
43 - 90. This document is found at www.humanrights.gov.au/social_justice/native_title/index.html#submission.
An analysis of these provisions and their application by State and Territory
governments is also contained in the Native Title Report 1999,
pp49 - 67. The Committee on the Elimination of Racial Discrimination found
these four sets of provisions to be discriminatory in March 1999, Committee
on the Elimination of Racial Discrimination, Decision (2)54 on Australia
- Concluding observations/ comments,
(UN document CERD/C/54/Misc.40/Rev.2),
18 March 1999.

5. Subdivisions
G - N, Division 3, Part 2, NTA

6. Lardil,
Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland
[2001] FCA
414, Full Court (11 April 2001)

7. Harris
v Great Barrier Reef Marine Park Authority
[2000] FCA 603 (11 May
2000)

8. [2000]
FCA 603 at para 50 per Heerey, Drummond and Emmett JJ.

9. Australian
Local Government Association, Working Out Agreements with Indigenous
Australians: A Practical Guide,
ATSIC and Australian Local Government
Association, Canberra, 1998, p15. '[T]here has been a movement within
the indigenous land use agreement process to try to establish that relationship
["of respect, recognition, and good will"] between government
and indigenous people outside individual ILUA agreements. That is where
I think the state-wide framework agreements have played a role …
The development of state-wide framework agreements is a positive development
in the ILUA framework because they recognise that need for states to deal
directly with indigenous people on an equal footing that establishes that
recognition and respect', evidence of Strelein, L, to the PJC Inquiry,
Official Committee Hansard, 2 April 2001, p NT258.

10. 'A
framework agreement could clearly establish agreed principles upon which
the negotiation of native title applications could occur and deal with
strategic and prioritisation issues', Wand, P, and Athanasiou, C, Review
of the Native Title Claim Process in Western Australia, Report to the
Government of Western Australia
, Western Australia Government, Perth,
2001 (hereinafter referred to as the 'Wand Review'), para 9.2.1. The Wand
Review encourages working toward such a framework agreement: para 9.2.2.

11. The
Protocol was signed by the State of Victoria, ATSIC and Mirimbiak
Nations Aboriginal Corporation in Melbourne, November 2000.

12. Further
information about these state-wide agreements can be found at www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm

13. Interim
Agreement
between the Rubibi Working Group and Shire of Broome (1
May 1996), clause 1. Agreement available at NNTT web-site www.nntt.gov.au/nntt/agrment.nsf/7.+Agreements+by+Category?OpenView&Start=1&Count=1000&Expand=3#3
accessed 14 December 2001.

14. Native
Title Process Agreement
between the Quandamooka Land Council and Redland
Shire Council (14 August 1997). Agreement available from NNTT web-site
www.nntt.gov.au/nntt/agrment.nsf/1c6f336460dd7c9e4825644200298144?OpenView
entitled 'Minjerribah/North Stradbroke Island Native Title Process Agreement',
accessed 14 December 2001

15. Extracts
of the agreement are contained in 'Agreements, Treaties and Settlements'
(1996) Australian Indigenous Law Reporter 1(3), p446.

16. ibid

17. ibid

18. The
Cattlemen's Union of Australia was dissolved in June 1999 and was replaced
in the agreement by the Peninsula Cattlemen's Association representing
the interests of its members on Cape York Peninsula.

19. PJC
Inquiry, op cit, evidence of Horner, P, (Commonwealth Attorney-General's
Department), Official Committee Hansard, 2 April 2001, pNT255.

20. 'The
non-extinguishment principle, as defined by section 238 of the Native
Title Act, applies to the grant of the Licence, and to any work done pursuant
to that Licence', clause 5.2(a) of Deed Pursuant to Section 31 of the
Native Title Act
(22 October 2001) between the State of South Australia,
Yandruwandha/Yawarrawarrka People, Beach Petroleum NL, Magellan Petroleum
(NT) Pty Ltd and Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal
Corporation). Information about the documents and the negotiations from
the South Australian Government web-site www.pir.sa.gov.au/dhtml/ss/section.php?sectID=1288andtempID=8
accessed 27 November 2001.

21. ibid,
Schedule 4, Recital, para F in Ancillary Agreement Native Title: Petroleum
(October 2001) between the Yandruwandha/Yawarrawarrka People, Beach
Petroleum NL, Magellan Petroleum (NT) Pty Ltd and Yandruwandha Yawarrawarrka
Traditional Land Owners (Aboriginal Corporation).

22. Referred
to by ATSIC Chief Executive Officer, Sullivan, M, PJC Inquiry, Official
Committee Hansard
, 8 June 2001, pNT321.

23. PJC
Inquiry, evidence of Councillor Ross, Official Committee Hansard,
2 April 2001, pNT253.

24. ibid,
evidence of Wensing, E, Official Committee Hansard, 9 November
2000, pNT14

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

26. [2001]
HCA 56 para 295

27. Protocol,
op cit
, paras A, C and D

28. The
NTA defines native title to include 'individual rights of Aboriginal peoples
or Torres Strait Islanders': s223(1). However all native title determinations
to date recognise only group rights. The issue of individuals' position
within the group is, rightly, a matter for the relevant Indigenous community.

29. Building
Reconciliation Protocol
between Queensland Government and Queensland
Indigenous Working Group (13 August 1999) Introduction clause H.

30. Finlayson,
J, 'Anthropology and Connection Reports in Native Title Claim Applications'
in Land, Rights, Laws: Issues of Native Title (Vol 2, no. 9) Australian
Institute of Aboriginal and Torres Strait Islander Studies, 2001, p3.

31. Submission
of the Aboriginal and Torres Strait Islander Social Justice Commissioner
to the Wand Review of the State Government's "General Guidelines
for Native Title Determinations and Agreements" August 2001, p 9.
This document can be viewed at www.humanrights.gov.au/social_justice/native_title/index.html#submission

32. Department
of Justice, Guidelines for Native Title Proof: Victoria, Government
of Victoria, Melbourne, 2001.

33. ibid,
p3

34. ibid,
p4

35. ibid,
p5

36. ibid,
p13

37. Wand
Review, op cit, para 7.7.1.

38. Articles
1 of both ICESCR and ICCPR, Article 5 of ICERD, Article 1 of the Declaration
on the Right to Development
(UN document A/RES/41/128), 4 December
1986. See also Article 3 of the draft United Nations declaration on
the rights of indigenous peoples
(UN document E/CN.4/SUB.2/RES/1994/45),
26 August 1994.

39. O'Faircheallaigh,
C, 'Negotiations between mining companies and Aboriginal communities:
process and structure', Centre for Aboriginal Economic Policy Research,
Discussion Paper 86/1995, p3.

40. Senior,
C, 'The Yandicoogina Process: A model for negotiating land use agreements',
in Land, Rights, Laws: Issues of Native Title Australian Institute
of Aboriginal and Torres Strait Islander Studies
, February 1998.

41. O'Faircheallaigh,
C, 'Process, Politics and Regional Agreements' in Land, Rights, Laws:
Issues of Native Title Australian Institute of Aboriginal and Torres Strait
Islander Studies
, February 1998, p5.

42. Howitt, R, 'Why
is the government negotiating? What drives other stakeholders?' Statewide
Native Title Framework Agreement Issues Paper No 1
(October 1999)
ALRM, Adelaide, p2.

43. Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice
Report 2000
, Human Rights and Equal Opportunity Commission, Sydney,
2001, pp89-91.

44. For
example, 'QML [Queensland Mines Ltd] did not submit annual reviews of
its training and employment program to the NLC [Northern Land Council]
as required by the Nabarlek [uranium mine] agreement', O'Faircheallaigh,
C, 'Negotiations between mining companies and Aboriginal communities:
process and structure', op cit, pp17-18.

45. The
Exploration Permit Backlog Project: Model Indigenous Land Use Agreement
(2001) provides a standard arrangement already negotiated between the
Queensland Indigenous Working Group and the Queensland Government. This
agreement provides a basis, if accepted by individual claim groups, for
pending exploration tenements to be granted in the relevant claim area
in return for certain conditions including heritage and environmental
protection, and payments to the relevant claim group. Information available
from Queensland government website www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm
accessed 14 December 2001.

46. ibid.,
clauses 9.2(b) and Schedule 2.

47. ibid.,
clause 10.

48. ibid.,
clause 16, where disputes can be referred to the Queensland Land and Resources
Tribunal.

49. Various
agreements involving mining companies and Indigenous groups in the Pilbara
region of Western Australia provide for a monitoring committee which includes
Indigenous and company representatives to oversee the agreement's implementation
and assist in any dispute resolution.

50. For
example the Building Reconciliation Protocol between the Queensland
Government and Queensland Indigenous Working Group, op.cit. The document
identifies various areas for negotiation, review and submission. These
include matters such as mining agreements, processing of mining tenements
under native title laws, management of national parks and incorporation
of native title issues into various Queensland legislative schemes. The
document specifies that the 'Queensland Government Department of Premier
and Cabinet shall be responsible for overseeing the implementation of
the Protocol', Introduction clause E.

51. Native
Title Process Agreement
, Quandamooka Land Council Aboriginal Corporation
and Redland Shire Council, op.cit., clause 6.2(b)

52. ibid.,
clause 6.2(c).

53. For
example, Protocol for the negotiation of agreement for exploration
and mining for New South Wales, op.cit.
, clause A(5)

54. Jopson,
D, 'Title misdeeds', The Sydney Morning Herald, 4 August 2001, p27.

55. NTA,
s24EA(1)(a).

56. NTA,
s24EA(1)(b).

57. Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund, Second Interim Report for the s.206(d) Inquiry: Indigenous
Land Use Agreements
, Parliament of the Commonwealth of Australia,
Canberra, 2001, paras 8.29 and 8.30.

58. ibid.,
para 8.32.

59. Canada,
Report of the Royal Commission on Aboriginal Peoples Canada Communication
Group Publishing
, Ottawa, 1996, Vol 2, Part 1, p44.

60. Martinez,
M., Study on treaties, agreements and other constructive arrangements
between States and Indigenous populations
, Commission on Human Rights,
Sub-Commission on the Prevention of Discrimination and Protection of Minorities
(UN document E/CN.4/Sub.2/1999/20), 22 June 1999, para 263.

61. Council
for Aboriginal Reconciliation, Reconciliation: Australia's challenge
(Final report of the Council for Aboriginal Reconciliation to the
Prime Minister and the Commonwealth Parliament, Commonwealth of Australia,
Canberra, 2000, Appendix 3, p163.

62. This
option and others are discussed in seminars and papers presented as a
Treaty Series, Australian Institute of Aboriginal and Torres Strait Islander
Studies, 2001, www.aiatsis.gov.au/rsrch/seminars.htm