Native Title Report 2001: Introduction
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Native Title Report 2001
Introduction
Native title was recognised by the High Court, nearly ten years ago, on 3 June 1992. The Mabo decision [1] gave recognition to the unique and profound relationship that Indigenous people have always had with their land.
If, nine and a half years ago, I were asked to predict the outcomes that the recognition of native title might deliver to Indigenous people, I would have identified three broad areas: social outcomes from having the laws and traditions of Indigenous culture recognised as worthy of equal respect to those of the dominant culture; economic outcomes from giving Indigenous people control over a valuable asset, land; and finally, political outcomes from recognising the traditional decision-making structures that, like so much of Indigenous identity, revolve around land.
The basis of my optimism that the recognition of native title could achieve no less than a transformation of the social, economic and political relationships Indigenous people have with non-Indigenous people was that, in native title the inherent rights of Indigenous people, as the original inhabitants of the land, were finally acknowledged. This was equality of a different order to that conferred with citizenship some twenty five years before. In native title Indigenous people were not being treated as indistinguishable from any other citizen of Australia. This was recognition and equal respect for what we distinctly are: descendants of the first peoples of this land.
Australia has had almost a decade to establish a fair and just system to allow the benefits of inherent rights to be enjoyed by Indigenous people. This has not eventuated. In my view this is because inherent Indigenous rights are embodied in a system that is aimed at restricting rather than maximising these benefits. The native title system, as structured by the Native Title Act (1993) (Cth) (NTA), and the common law operate to ensure that where native title co-exists with non-Indigenous interests on land, those latter interests prevail, either to the point of extinguishing native title or removing native title as an encumbrance in their pursuit. Where native title does not co-exist with non-Indigenous interests but exists on vacant Crown land, its capacity to deliver these outcomes is also reduced by the limited form in which it is recognised by the common law. As an embodiment of social relations, the native title system places Indigenous interests at a lower level than non-Indigenous interests, every time. As an embodiment of economic relations, the native title system removes Indigenous people's effective control over their only asset: exclusive rights to land and sea country. As an embodiment of political relations, native title fails to recognise traditional decision-making structures.
Since my appointment as Aboriginal and Torres Strait Islander Social Justice Commissioner in 1999 I have continually opposed the legal structures in which native title has been ensnared for so long. The basis of my opposition has simply been the human rights values of which I am keeper: racial equality and non-discrimination. I have expressed my opposition domestically through numerous submissions, oral and written, to government inquiries and reported annually to Parliament on these matters. At an international level I have addressed three separate human rights committees to explain how Indigenous peoples' human rights have been breached by the NTA. [2] Each of these committees has expressed its concern to the Australian government about these breaches. Nothing has changed. Native title is, today, still governed by the exact same legal structure as that which, in 1998, caused the Committee for the Elimination of Racial Discrimination (the CERD Committee) to put Australia under its Urgent Action procedure and request an explanation for this extreme imposition of discriminatory policy.
In view of the failure to amend the Act consistently with human rights standards, how can native title, as an embodiment of inherent rights, free itself from these invasive legal structures in order to realise the social, economic and political outcomes that it might have delivered?
An opportunity to put Indigenous people's inherent rights to land on a different footing to the discriminatory one contained in the NTA arose out of the reconciliation process. The Australian Declaration Towards Reconciliation recognises the importance of these inherent rights to the reconciliation process. The relevant passages state:
We value the unique status of Aboriginal and Torres Strait Islander peoples as the original owners and custodians of the lands and waters.
We recognise this land and its waters were settled as colonies without treaty or consent.
Reaffirming the human rights of all Australians, we respect and recognise continuing customary laws, beliefs and tradition.
Through understanding the spiritual relationship between the land and its peoples, we share our future and live in harmony….
And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation.
Our hope is for a united Australia that respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all. [3]
The government has not endorsed this Declaration and has stated four areas of contention, three of which are relevant to native title: opposition to the recognition of customary law; opposition to laws which did not generally apply to all Australian citizens; and opposition to self-determination for Indigenous people. [4]
These areas of difference tell us why the government's policy response to the reconciliation process has failed to include inherent rights such as native title as a platform for addressing Indigenous issues. The government's opposition to the Declaration is an opposition to the notion of inherent Indigenous rights. The recognition of native title is a recognition of customary law; it accepts that only Indigenous people will be eligible for these rights which are inherent to them; and it implies self-determination within the life of the nation. These areas of difference also explain the reasoning behind the amendments to the native title legislation which stripped native title of these qualities and reduced it to a fragile property right.
This year's Social Justice Report provides a detailed account of the government's response to the recommendations of the Council for Aboriginal Reconciliation. It is worthy to note here that in the two meetings held by the Council of Australian Governments (COAG) in response to the implementation and monitoring role attributed to it in the Council's recommendations, there has been no recognition of Indigenous people's inherent rights and their necessary role in the three priority areas it has identified: community leadership; reviewing and re-engineering programmes and services to achieve better outcomes for Indigenous peoples; and building links between the business sector and Indigenous communities to advance economic independence.
The alignment of Indigenous and non-Indigenous rights to land on the basis of equity is essential to the reconciliation of the people to whom these rights attach. This can only be done by recognising the inherent rights of Indigenous people to their land as entitled to the same level of protection as the rights of non-Indigenous people to land.
Another way native title, as the embodiment of inherent rights, can deliver social, economic and political outcomes is through agreements in which the owners of social, economic and political capital engage with native title parties in a manner consistent with human rights principles. This year's Native Title Report proposes framework agreements that embody human rights principles as a guide to agreement-making on native title land. The difficulty is in convincing developers, mining and resource companies, pastoralists, and local and state governments to enter into agreements which deliver real outcomes to Indigenous people when the legislation does not necessarily require this of them.
The right to negotiate is the only significant right within the NTA with the capacity to generate agreements and provide Indigenous people with processes that enable their effective participation in the management of their traditional lands. The first chapter of this year's report examines how the operation and administration of the right to negotiate by state and territory governments and administrative tribunals limit the right of Indigenous people to participate in decisions affecting their land and to determine their economic, social and cultural development.
These are rights guaranteed at international law.[5] However, the extent to which these rights are realised in practice are significantly affected by the manner in which the right to negotiate is administered.
In the reporting period some governments have failed to accord to native title parties their right to negotiate on lands where the status of native title is as yet uncertain. The legality of such actions is as yet unclear. [6] Some governments have avoided the operation of the right to negotiate by implementing their own regimes permitted by the NTA which undermine the right to negotiate. In fact, this chapter documents an increasingly technical approach to native title, the effect of which is to reduce the necessity to negotiate with native title parties over developments on lands potentially subject to native title. These actions breach international human rights standards.
Within this bleak picture some positive developments have emerged. Most notable is the development by some governments and Indigenous peak bodies of framework indigenous land use agreements. 'Opt in' agreements such as these are entered with the informed consent of native title parties and provide minimum standards for the negotiation of further agreements. They allow for individual native title groups, government and industry to negotiate agreements that are appropriate to their circumstances and which respect Indigenous peoples' rights to effective participation in decisions affecting themselves, their lands and territories.
The second chapter of this Report analyses the allocation of funding to the native title system and its effect on the rights of native title parties. In this chapter I make the point that agreement-making and the determination of native title applications are the two pivotal parts of the native title process. Importantly they are complementary processes. The determination process enables the traditional owners in a particular region to be legally recognised and agreement-making enables the participation of those owners in the economic development of their land.
It is of great concern to me that the Native Title Representative Bodies (NTRBs), whose function it is to ensure that native title interests are protected in both these processes, are not properly resourced to do so. The consequence is that NTRBs are forced to make an arbitrary distinction between these processes and choose which one they are going to fund. Where agreements are pursued, the funds are directed away from the determination process and the recognition of native title holders title over their land. Where determinations are pursued, leaving no capacity to negotiate agreements, native title parties are denied the economic benefits of developments on their land.
The Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund into Indigenous Land Use Agreements [7] noted that many representative bodies were unable to engage fully in the agreement-making process due to insufficient resources and recommended that more financial resources be made available to native title representative bodies for the negotiation of Indigenous Land Use Agreements. The second chapter, as well as endorsing this recommendation provides further recommendations and benchmarks to guide resource allocation based on human rights principles.
Chapter two also notes that the amendments to the NTA require that native title claimants commence Federal Court proceedings in order to not only obtain a determination on an application for native title, but also to secure procedural rights on which native title participation in economic development depends. The consequence of this is that the cost entailed in 'going to court' is a necessary expenditure of the agreement process as well as the determination process.
The full integration of native title into the court system is part of a broader process, referred to as the juridification of native title. This occurs where the legal structure in which the inherent rights of Indigenous people are encased so overwhelms and dominates those rights that they can no longer be considered inherent to the identity of Indigenous people but rather are a creature of the non-Indigenous legal system. The majority decision of the High Court in the Croker Island case [8] can be seen as part of this process. While traditional law in Northern Australia recognises an exclusive right of access to particular areas of sea country by its owners, the High Court denied recognition of this right on the basis that it was inconsistent with two fundamental tenets of the non-Indigenous legal system: the right of innocent passage and the public right to fish. In so finding, the non-Indigenous legal system circumscribes native title to such an extent that it no longer exhibits the characteristics inherent to the traditional laws and customs of which it is a part.
The immediate impact of this decision is that native title holders are denied the benefits of the commercial development of their sea country. Where native title, if interpreted consistently with its origins in traditional law and custom, may have been the basis of economic development for the Indigenous owners of the Croker Island region, it is now rendered unproductive by its construction in the legal system.
Despite the restrictions placed by the non-Indigenous legal and political system on the capacity of the inherent rights of Indigenous people to deliver practical outcomes to them, the final chapter of the Report identifies ways in which Indigenous people can succeed in overcoming these significant obstacles. Framework agreements can provide a new context in which agreement-making can deliver practical outcomes and in which human rights principles provide a stable and enduring basis to ongoing relationships on country.
Framework agreements provide rules, agreed between the parties, which establish the basis on which native title rights and non-Indigenous use of land will co-exist. Such agreements can cover a wide range of situations: from negotiation protocols between two parties to an agreement between conservation groups, pastoralists, the government and Indigenous people. Where these framework agreements are based on non-discrimination and effective participation, they will assist in the progress toward a sustainable co-existence of interests on country.
Issues that can be addressed through agreements consistent with human rights principles include meaningful acknowledgement of Indigenous interest in the relevant area, recognition and protection of contemporary cultural practices, allowing (and where necessary, assisting) the involvement of all native title holders who may be affected by outcomes of any framework agreement, and ensuring a cooperative approach to implementing any agreement.
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. So long as such framework agreements provide certainty and stability in the relationships that they engender, they will be a viable option for commercial entities wanting to do business with Aboriginal people. However, as native title court decisions, which limit native title to non-exclusive, easily extinguishable rights, begin to percolate through the system, and the NTA continues to proscribe native title agreement-making for future acts, it will be increasingly difficult to convince developers, mining and resource companies, pastoralists, local and state governments, to voluntarily adopt a human rights approach.
This then raises the third way in which Indigenous people's inherent rights to land can be relocated out of the NTA and into a human rights framework: through a treaty. This option particularly addresses the failure of the native title system, as it has presently evolved, to embody political relations and recognise traditional governance structures.
There is no doubt that the recognition of native title as a domestic law concept on which Indigenous property rights were founded is inextricably linked to the overturning of terra nullius as an international law concept on which Australia's sovereignty was founded.
The overturning of terra nullius cleared the way for the recognition of native title. But it also left a significant gap as to the foundation of Australia's current sovereign state and whether this foundation could constitute an assertion of exclusive jurisdiction over Indigenous and non-Indigenous people alike. One possible solution to filling this gap was that native title itself would hold within it the seeds of Indigenous sovereignty and governance.
The rejection of terra nullius was a rejection of the assertion that Indigenous people were not socially or politically constituted. The promise of native title was that it would acknowledge the social and political constitution of Indigenous people reclaiming their land.
This solution, that native title revives Indigenous governance structures within the nation, has not been embraced in the native title system as it has been constructed at a legal and political level. The construction of native title as a bundle of rights with no uniting foundation, in the Full Federal Court's decision in the Miriuwung Gajerrong case [9] , is a construction that epitomizes the disintegration of a culture when its governing essence is neatly extracted from it. The construction of native title by the NTA allows the common law's operation to have full effect.
A new relationship between Indigenous and non-Indigenous people based on human rights principles needs to be negotiated independently of the native title system as it is presently constructed. However this agreement, which could be referred to as a treaty, must not abandon native title but must renegotiate it, so that inherent rights are given the capacity to transform social, economic and political relations in Australia.
The Council for Reconciliation (CAR) included in its report to Parliament [10] a draft Bill 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. The resolution of this issue would be central to the treaty process. 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.
A recent United Nations report by Special Rapporteur, Miguel Alfonso Martinez, Study on treaties, agreements and other constructive arrangements between States and indigenous populations, [12] considers the issue of 'recognition of indigenous peoples' right to their lands and their resources,' [13] to be of central importance in establishing a renewed relationship between Indigenous and non-Indigenous people:
This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multi-national societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival. [14]
Martinez, in the conclusions and recommendations of his report, in essence supports the treaty process recommended by the Council for Aboriginal Reconciliation:
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. [15]
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 deriving from the inherent right of Indigenous people to make decisions in relation to the issues that affect them including decisions over their land and their resources. Consequently treaty rights and treaty processes must be constitutionally enshrined. In this way it will not be subject to the type of amendments that, in 1998, transformed native title to a fragile property right.
A focus of this year's Native Title Report is the important distinction between two sorts of rights. Those that are enjoyed by every Australian, including Aboriginal people, commonly referred to as citizenship rights; and those that are inherent to Indigenous people only. This important distinction has not been made in the government's recent and generalised attack upon a rights approach as inadequate to deal with, if not causally related to, the high levels of violence perpetrated by Indigenous people against their own families and communities.
The government has condemned the rights approach as symbolic only, one which doesn't produce practical results.[16] Symbolic rights are distinguished from practical outcomes. Practical outcomes result from dealing with Indigenous issues on an individualistic basis.
It appears from a close analysis of the arguments opposing a rights approach to Indigenous issues that it fails to distinguish between the two types of rights relevant to Indigenous people; citizenship rights and inherent rights. What are actually being attacked as the cause of the horrendous and irresponsible violence in some Indigenous communities are the rights that came with citizenship. That is, the right of Aboriginals to be treated the same as non-Aboriginals, without being discriminated against on the basis of their race. The right to leave a mission or reserve without first seeking permission. The right to vote. The right to enter a pub and buy alcohol. The right to unemployment benefits when out of work. The right to enter a defacto relationship. The right to formal equality.
Yet of those attacking the rights approach as producing no improvement in Aboriginal peoples lives, no-one has suggested that the solution is to take these rights away and force Aboriginal people back to the mission or the reserve under the supervision of the Crown, the police or the church. To do so would strike at the very core of Australian society as well as marginalise Aboriginal communities and their problems even more than is presently the case. These rights do not need to be abandoned, they need to be augmented. The real problem with citizenship rights, a problem I point out time and again in my Native Title and Social Justice Reports, is that they are not capable of transforming the poverty and destitution that marks so many Aboriginal peoples' lives. They were not intended for this purpose.
Formal equality on its own is not enough. As a tool of social change it is inadequate and, indeed, entrenches the inequality that already exists. To that extent I agree with the critics of a rights approach to Indigenous disadvantage and poverty. What I don't agree with is their conclusion that, as an approach to social policy, rights are incapable of addressing these Indigenous issues.
The problem is not that Aboriginal people were given equal rights and treated like everyone else. The problem is that these are the only rights that Aboriginal people were given. This type of equality, formal equality, is not enough to restore Aboriginal people to their rightful place as the first peoples of this country. We need to go further with rights. We need to adopt a rights approach that does have the capacity to transform social, economic and political relations in Australia. I have, in my previous annual reports advocated two types of measures, based on rights, which have this capacity. First, measures known as special measures, aimed at achieving equality, rather than assuming it; and second, the full recognition of Indigenous people's inherent rights, in particular native title.
A combined approach, utilising these two types of rights, has not been adopted by any government as a way of addressing the disadvantage it is designed to transform. When an opportunity did arise to recognise inherent rights through native title it was immediately encased in a legal armature that gave it no room to deliver real outcomes. Its capacity to provide economic opportunities for Indigenous people, to provide equal respect for Indigenous culture, to provide governance structures for Aboriginal communities has been severely limited through the NTA and the common law. The proposal to implement special measures to overcome the destructive cultural, social and economic impact of dispossession with the full participation and consent of Indigenous people through the Social Justice Package was never pursued by any government.
The call to abandon rights assumes that they have been tried and failed. That is incorrect. Indigenous rights, ones that recognise Aboriginal people for what they are, and have the capacity to change their dire living circumstances, have never been embraced as a way forward. What is required is that Aboriginal people be given the full enjoyment of their inherent rights through native title and that Indigenous disadvantage be addressed with the full participation of those affected.
1. Mabo v Queensland (N0.2) (1992) 175 CLR 1 (Mabo)
2. In 2000 the Committee on the Elimination of Racial Discrimination (the CERD Committee) the Human Rights Committee, and the Committee on Economic Social and Cultural Rights criticised Australia's native title legislation based on Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural Rights (ICESCR) respectively. For a full analysis of these decisions see https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/native-title
3. Council for Aboriginal Reconciliation, Reconciliation Australia's Challenge, Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, December 2000, Appendix 1 p109.
4. Prime Minister, Media Release, 11 May 2000, www.pm.gov.au/news/media_releases/2000/reconciliation1105.htm, accessed 29/11/2001
5. See Article 1 of the International Convention on Civil and Political Rights (ICCPR); Article 1 of the International Covenant on Economic and Social Rights (ICESCR); Committee on the Elimination of Racial Discrimination (the 'CERD Committee'), General Recommendation XXIII (51) concerning Indigenous peoples, CERD/C/51/Misc.13/Rev.4 (1997); CERD Committee, Decision (2)54 on Australia - Concluding observations/ comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2; and Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS, para 9.
6. Pending determination of the appeal to the High Court of Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (the 'Miriuwung Gagerrong case')
7. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Nineteenth Report of the 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, September 2001.
8. The Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (11 October 2001)
10. Council for Aboriginal Reconciliation, op cit, Appendix 3, p163.
11. Report of the Royal Commission on Aboriginal Peoples 1996, Canada, Vol 2, Part 1, p44.
12. 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 Doc E/CN.4/Sub.2/1999/20, 22 June 1999
16. Philip Ruddock, Aborigines reach a turning point, The Age, 23 July, 2001
