Editors --- "Native Title Report: July 1994 - June 1995 - Digest" [1996] AUIndigLawRpr 51; (1996) 1(2) Australian Indigenous Law Reporter 298

Native Title Report: July 1994 - June 1995

Aboriginal and Torres Strait Islander Social Justice Commissioner

Canberra: Australian Government Publishing Service, December 1995

Introduction

Chapter 1 - Recognising Native Title

What is native title? What do claimants have to show to get a determination of native title? And what do they get when they do?

In this chapter, I explore these vital questions for assessing whether the system for the recognition and protection of native title lives up to Indigenous peoples' expectations. The Government chose not to conclude any of these issues in the NTA. The Act makes some alterations to procedure at common law but, on the substantive issues about the source and content of native title, it merely incorporates the common law.

In answering these questions, courts must abide by what the High Court called the guiding principle for the recognition of native title: that full respect will be afforded the rights of Australia's Indigenous people. The law can only show full respect to Indigenous peoples' property rights by recognising the existence of our systems of laws and customs.

I explain in this chapter, that to prove communal native title, claimants must show the existence of a system of laws and customs connecting an Indigenous group to land just prior to the assertion of sovereignty by the British Crown and that the group continues to have an identity as a group. In applying this standard, the courts must be responsive to the facts of colonisation and the particular features of Indigenous cultures. Standards of proof must be attainable and they must be adapted to the way Indigenous people experience our connection to land.

In this chapter I argue for fair conceptions of the nature, content and requirements for proof of native title based on the common law and Indigenous cultures. Using this as a standard, I assess some of the significant ideas and arguments that have emerged so far and I review the early indications of the attitudes of the judges. Throughout the chapter, I identify areas where Commonwealth intervention or procedural changes are necessary and I formulate amendments that may become necessary, depending upon the outcomes of certain controversies currently in the realm of the courts.

Chapter 2 - Facilitating Claims

The process of determining native title must not infringe the human rights of Aboriginal and Torres Strait Islander peoples. The creation of a registration test and the prospect of increasing costs and delay arising from the increased involvement of the Federal Court will impair our human rights.

Effective mechanisms for resolving intra-Indigenous disputes arising from the claims process are vital. This will allow reconciliation of various interests in a claim.

In this chapter, I examine the role of representative bodies as the regional facilitators of native title. This role demands proper resourcing. I broadly support implementation of the Review of Native Title Representative Bodies 1995. Comprehensive implementation of the Review will promote the effectiveness, accountability and representativeness of these organisations. A properly resourced national network of Indigenous-controlled representative bodies that are responsive to their constituencies will enhance our pursuit for land justice.

Claims assistance needs to be provided by representative bodies in a framework of regional priorities determined through processes that are genuinely representative of the relevant Indigenous land interests. Bodies that strongly reflect their constituency will be better placed to assist in the realisation of Indigenous land aspirations.

I advocate the recognition of a limited exception to the policy of providing funding assistance exclusively through representative bodies. This exception would safeguard the interests of claimants who are unable to receive assistance from a representative body, or where it is inappropriate for assistance to be so provided.

Chapter 3 - Mediation

Under the NTA, settlement of native title claims through mediation was supposed to be the primary means of recognising native title. Mediation is not litigation about rights. It is about reconciling all parties' interests and avoiding the courts. Mediated settlements are more likely to provide finality in the determination of land claims than court decisions because the parties own the settlements.

The power imbalance between Indigenous claimants on one hand, and government and industry parties on the other, has implications for the process. Unless the process functions to ensure native title claimants can bargain as equals, mediated agreements will disadvantage claimants. Presently, the Indigenous claimants are not shaping the agenda in mediations, rather it is governments and developers.

The lack of provision of an infrastructure in the Act to ensure claimants can generate an alternative agenda, the historical difference in power and the Tribunal's obligation to try to broker lasting agreements, combine to make the Tribunal's position invidious. The Tribunal must operate with awareness of the power imbalance in mediation and take steps to ensure its own processes do not reinforce it. The Tribunal's processes should foster the trust and confidence necessary to promote agreement.

Chapter 4 - Future Act Procedures and the Right to Negotiate

In this chapter, I demonstrate the right to negotiate provides fundamental protection for Indigenous peoples' human rights. The negotiation process operates to provide protection against arbitrary deprivation of property and to promote our cultural rights and our right to self-determination.

Despite its importance, the right to negotiate has been criticised and it is being interpreted in a restrictive manner. The current interpretation of the requirements which must be met to remove the right to negotiate is too broad and it contradicts Indigenous conceptions. The effect is that Indigenous peoples do not get the benefit of the negotiation procedures.

The approach of state governments to the negotiation provisions is cause for concern. Through broad assumptions about what constitutes extinguishment, most states are attempting to minimise their participation in negotiations. Other strategies include promoting non-claimant applications and placing the onus on grantees to comply with the negotiation procedures. These approaches could lead to interference with native title interests by the grantees.

Most activity under the right to negotiate procedures has occurred in Western Australia. Lack of resources, time constraints and lack of community education are creating difficulties for Indigenous peoples in accessing the right to negotiate procedures. The impact is reflected in the low response rates by Indigenous peoples in Western Australia to notices in relation to mining tenements.

The Western Australian statistics show the complaints from governments and the mining industry about problems caused by the future act regime are overstated. The low response rates from Indigenous peoples to tenement notices, especially exploration tenements, contradict the concerns of the mining industry over the impact on exploration. The `delays' caused by the NTA have been minimal.

Chapter 5 - Negotiations and Land Use Agreements Under the Native Title Act

I examine the issues arising in negotiating land use agreements. Such agreements will primarily be negotiated under the NTA through the right to negotiate provisions. However, agreements can occur outside the formal negotiation structure.

Current discussions of land use agreements emphasise proposed future acts and the agenda of developers. The negotiation process for proposed future acts must have flexibility to prevent Indigenous peoples' aspirations from being marginalised.

Section 21 of the NTA provides another means for reaching agreements over land use. Section 21 promotes the authorisation of future acts affecting native title and the surrender or extinguishment of native title. It is preferable for agreements to give recognition to Indigenous peoples' legal interests and human rights than to require extinguishment.

The NNTT has been promoting s. 21 as a mechanism for resolving land use disputes on a regional basis. I support this initiative. A role also exists for s. 21 as a starting point for broad agreements. The potential exists for comprehensive agreements similar to those reached in the northern hemisphere. Lasting reconciliation between Indigenous and non-Indigenous people demands that comprehensive agreements be considered.

The right to negotiate creates certainty about the native title parties to a negotiation through the existence of notification and response periods, and provisions that bind native title claimants. With respect to section 21 agreements, the concern about uncertainty has some substance. Nevertheless, complaints from non-Indigenous parties about uncertainty in relation to native title parties must be kept in perspective. Difficulties in identifying Indigenous claimants result from the historical lack of recognition of Indigenous land ownership and not from the NTA. The problem of identifying native holders is transitory. It will be resolved as the Act operates over time. In the short term, adequate resourcing and less restrictive time frames for representative bodies would reduce this difficulty.

Recommendations

Chapter 1 - Recognising Native Title

1. Monitor the level of detail the courts are requiring for proof of communal native title. If the requirements are excessive, the Commonwealth must consider codifying the requirements for proving native title in a way that ensures proper recognition of Indigenous peoples' traditional connection to land in accordance with Australia's international obligations.

2. Amend section 61(1) to facilitate applications made in the name of associations or groups in addition to natural persons. Change the regulations and procedures to reflect this amendment.

3. Ensure the requirement in section 225(b)(i) to specify who holds native title is not constructed to require an exhaustive list of individual claimants. If claimant groups are being required to list all members of the group individually, amend the section so that it requires only a description of the group that holds native title.

4. The burden of proving extinguishment of native title should be on the party asserting it. Monitor court directions and decisions to ensure that claimants do not bear the burden of establishing non-extinguishment. If directions and decisions do not clearly impose the burden of proving extinguishment on the party asserting it, amend the Act to affect this.

5. The onus of proving abandonment should be on the party asserting it.

6. The connection to a claimed area required to be maintained at common law is wholly a question of fact to be determined on evidence about the applicable Indigenous law and customs.

7. In response to the requirement to provide details of traditional rights and interests claimed, applicants for a determination of native title need not provide detailed lists of rights and uses. The requirement should be regarded as satisfied where claimants specify rights to occupation, use, enjoyment and possession.

8. There should be a statutory presumption formulated in the following terms:

a. Where applicants for a declaration of native title can adduce material that gives rise to a hypothesis of their continuing connection to the claim area, then

b. unless the respondent can show, beyond a reasonable doubt, that the claimants do not have a continuous connection to the claim area,

c. the claimants' connection will be presumed to have existed at the date of the assertion of sovereignty by the British Crown.

Chapter 2 - Facilitating Claims

9. Subject to a programme safeguard, representative bodies undertake the primary role in resolving disputes that occur within Indigenous claimant communities in relation to native title claims.

10 a. Representative bodies must attempt to meet the broad and diverse needs of Indigenous land interests in their regions.
To facilitate this, each representative body be required to:

* encourage an inclusive Indigenous constituency; and

* have an organisational structure that is generally indicative of the land interests in its region.

b. Where necessary, sufficient time be allowed to develop these structures with subsequent funding for all representative bodies to be contingent on the necessary representative arrangements having been established and maintained.

11. ATSIC funding be conditional on the implementation and regular review by representative bodies of corporate plans, policies and procedures. This condition be subject to a suitable transition period for organisations facing difficulties in identifying and establishing corporate plans, policies and procedures.

12. Policies and procedures clearly articulate the basis on which representative bodies prioritise native title work. The Indigenous constituency of the representative body should be closely involved in the development and regular review of these priorities.

13. Subject to any necessary transitional periods, conditions of funding provide a core set of mandatory policies and procedures to ensure equitable access to native title assistance. ATSIC approval be required for additional policies and procedures, consistent with the core provisions, created by representative bodies to meet their regional circumstances.

14. Subject to a programme safeguard, representative bodies should co-ordinate and manage the resources required for the equitable representation of disputing claimant groups. This should include, where necessary, the provision of separate legal and research assistance.

15. ATSIC establish and operate a programme safeguard in the form of a limited exception to the exclusive funding of native title claims through representative bodies. This safeguard would operate on an equitable and accountable basis. Section 203 of the NTA be amended to allow direct funding to claimants under this proposal.

16. Workload agreements be implemented from the end of the 1996/97 financial year as a basis for resource allocation to representative bodies. These agreements should be designed to enhance the planning and workload management system of representative bodies and not seek to impose administrative burdens on them.

17. Fully fund the native title programme in the interests of Indigenous peoples and to improve the workability of the NTA for all Australians. ATSIC provide native title funding on a multi-year basis.

18. Consistent with my proposals in this report, ATSIC, with the support of the Federal Government, immediately and comprehensively implement the recommendations of the review of representative bodies.

19. The Commonwealth reconsider recommendations in relation to amending the NTA to ensure the human rights of Aboriginal and Torres Strait Islander peoples are protected.

Chapter 3 - Mediation

20. The Commonwealth review and amend the definition of `interest' as it applies to the determination of parties in s. 68.

21. Amend the procedure for the determination of parties in s. 68. Prospective parties should be required to set out the nature of their interest in the claim area and produce any documentary evidence of their interest.

22. The meeting schedule for mediation should be set according to the preferences of the claimants.

23. Amend the Native Title Act to render punishable breaches of confidentiality harmful to the mediation process.

24. The Tribunal review its community liaison policy with a view to better servicing communities directly affected by native title claims.

25. Consider the application of section 137 inquiries to assist in identifying the conditions requisite in an agreement to meet the long-term aspirations and expectations of regional native title claimants.

Chapter 4 - Future Act Procedures and the Right to Negotiate

26. Amend section 237 to ensure the definition of "major disturbance" to land and interference with community life respects and gives effect to Indigenous peoples' cultural values.

27. In inviting submissions by Indigenous peoples on proposed exemptions from the right to negotiate procedures, the Commonwealth Minister must provide sufficient time for the preparation of submissions by Indigenous peoples.

28. Reconsider the principles for exclusion from the right to negotiate outlined by the Commonwealth Government's Native Title Implementation Task Force. Consult with the Indigenous communities and practitioners to develop a more practical and culturally sensitive process.

29. Ensure sufficient resources are directed to representative bodies and native title claimants, particularly in areas where there is a high volume of s. 29 notices.

30. ATSIC and the NNTT, in consultation with native title representative bodies, enhance programmes aimed at increasing Indigenous awareness of the Native Title Act and its procedures.

Chapter 5 - Negotiations and Land Use Agreements Under the Native Title Act

31. Amend section 38(2) of the NTA to allow an arbitrated determination to contain conditions entitling Indigenous peoples to payments by reference to profits made, income derived or things produced by the grantee party.

32. Amend section 21 to make clear that native title holders can enter into agreements under that section whether or not there has been an approved determination of native title.

33. Limit amendments to section 21 to permit agreements to authorise non-compliance with the right to negotiate procedure rather than section 21 automatically having that effect.

34. The Commonwealth's proposed amendment to section 21 should make it clear that it only applies to agreements negotiated by native title holders after there has been an approved determination of native title and the future acts only take place without notice of any competing native title holders.

See also (1996) 3(78) Aboriginal Law Bulletin 34.

Copies of the reports can be purchased ($12 + $5 postage for the first report, $12 + $6 postage for the second report) from the Human Rights and Equal Opportunity Commission: GPO Box 5218, Sydney, NSW 2001. l