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Inquiries and Reports – Australia
Aboriginal and Torres Strait Islander Social Justice Commissioner
Commonwealth of Australia, Canberra
May 2002
Editor’s note: The full report and footnotes are available at <www.humanrights.gov.au/social_justice/ntreport_01/>.
...
Native title was recognised by the High Court, nearly ten years ago, on 3 June 1992. The Mabo decision 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. 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.
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.
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. 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. 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 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 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, 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 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, considers the issue of ‘recognition of indigenous peoples’ right to their lands and their resources,’ 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.
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.
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. 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.
The ‘right to negotiate’ is a fundamental right assured by the Commonwealth Native Title Act (the ‘NTA’) and reflected in international human rights standards. Yet in practice the capacity of native title parties to exercise their ‘right to negotiate’ is determined by factors other than the mere existence of the right. Given the primary role of state and territory governments in land administration, their policies regarding the administration of the right to negotiate have a significant impact on native title parties’ capacity to exercise their ‘right to negotiate’. The ways in which the statutory exceptions to the right to negotiate are interpreted by Courts and tribunals also impact on the level at which native title is protected. In this chapter I discuss the human rights implications of the right to negotiate and its administration in the reporting period by state and territory governments and administrative tribunals.
Like all people, Indigenous peoples have internationally recognised human rights. These rights include rights to equality before the law, including the right to own property and the right to enjoy their culture and the right to self-determination.
The right to protection of property is guaranteed by Article 17 of the Universal Declaration of Human Rights (the ‘UNHR’) and Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (the ‘ICERD’). The meaning of this protection in relation to Indigenous peoples is further explained by the CERD Committee’s General Comment on Indigenous Peoples, which calls upon state parties to:
Recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal land, territories and resources ...
The collective rights of minority groups, including Indigenous peoples, to the enjoyment of their own distinctive cultures are protected by Article 27 of the International Covenant on Civil and Political Rights (the ‘ICCPR’), and Article 5(e)(vi) of the ICERD. The recognition of cultural rights is based on a principle of substantive equality. This principle recognises that the distinctiveness of minority or Indigenous cultures can only be protected to the same extent as the culture of a majority population if the law is able to protect the circumstances that make the continuance and development of the minority culture viable. This does not only mean temporary ‘special assistance’ for a ‘disadvantaged group’ until it ‘catches up’ with the majority population. Rather, it recognises that differential treatment is sometimes required to ensure equal protection of human rights. In relation to the protection of Indigenous cultures, it is recognised that substantive equality may require the protection of rights to lands where the culture is located and which give meaning to the exercise of that culture. This interpretation is supported by the Human Rights Committee, which has stated that:
One or other aspect of the rights of individuals protected under that Article — for example, to enjoy a particular culture — may consist in a way of life which is closely associated with territory and the use of resources. This may be particularly true of members of Indigenous communities constituting a minority ...
The right of all peoples to ‘self-determination’ is guaranteed at international law under Article 1 of the International Convention on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic and Social Rights (ICESCR) and has been developed in the General Comments of the Human Rights Committee and the CERD Committee. International human rights standards now recognise that the right to self-determination extends to Indigenous peoples and includes rights to effective participation in decisions affecting themselves and their traditional lands and territories. The CERD Committee’s General Recommendation on Indigenous Peoples recommends that states:
Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.
Within the Native Title Act the right to negotiate is a broad and important right. The right to negotiate contemplates the giving of notice of proposed mining future acts to native title parties pursuant to section 29 NTA (‘section 29 notices’), providing the opportunity to make submissions to the Government party regarding the proposed future act and negotiations in good faith between native title parties, mining parties and the Government party regarding the doing of the act or the doing of the act subject to conditions. Negotiations may encompass the impact of proposed future acts on claimants’ native title and on their social, cultural and economic structures, including management, use and control of native title lands and waters. Where agreement is not reached within six months of notification, parties may request that the arbitral body determine whether the future act may be done or done with conditions. The right to negotiate process is a pre-condition to the validity of all future acts to which it applies.
The right to negotiate stems from a feature common to the laws of Australian Indigenous peoples: the right to control access to and activities on traditional lands. It is this traditional law that is reflected in the right to negotiate enacted in the NTA. The right to negotiate is thus not a ‘special measure’ - it is not a measure temporarily adopted to enable a disadvantaged sector to ‘catch-up’ to the social and economic status of the rest of the community. Rather, the right to negotiate is a reflection of traditional law and as such is an inherent property and cultural right protected by the international guarantee of substantive equality. The right to negotiate established by the NTA is a diminished reflection of a cultural norm common to Australian Indigenous cultures regarding the need to look after the land. To the extent that the right to negotiate protects Indigenous cultural norms regarding access to their traditional lands, it reflects the substantive equality standard required at international law.
The right to negotiate in the NTA is also a means of ensuring that Indigenous people are able to participate in decisions regarding the development of their lands. To the extent that the right to negotiate allows this, it is also an expression of the internationally recognised human rights principle that Indigenous people have the right to effective participation in the development of their traditional lands.
The right to negotiate is thus a substantial right that enjoys protection within the international framework of human rights and which should not be easily displaced.
Mining tenures are issued by state and territory governments. The right to negotiate (and other mining future act processes) are administered by state and territory governments and the National Native Title Tribunal (the ‘NNTT’). A number of state and territory governments have so delayed the commencement of the right to negotiate provisions in their jurisdictions that they are now faced with substantial backlogs of mining and exploration tenure applications, all of which are required to be dealt with according to the right to negotiate process (or alternative state processes). In the reporting period backlogs grew to over 1000 mining title applications in the Northern Territory, approximately 1200 mining title applications in Queensland and nearly 11,000 in Western Australia. There is no reported backlog of mineral tenement applications in New South Wales or Victoria (the other two states where the right to negotiate under the NTA is utilised).
Some of these states and territories are developing procedures or are beginning to process their ‘backlogs’. The manner in which state and territory governments administer their backlog may differ according to whether that government utilises any of the various exceptions and / or amendments to the right to negotiate process that are provided for in the NTA. Exceptions to the right to negotiate provided for in the NTA include:
• Displacing the right to negotiate by the inclusion of an expedited procedure statement on notification of proposed future acts,
• The creation of state-based legislative alternatives to the right to negotiate,
• The replacement of the right to negotiate on low-impact exploration acts with a state-based right to be notified and consulted,
• Processes in place of the right to negotiate that have been agreed between all relevant parties and are contained in a registered Indigenous land use agreement (‘ILUA’).
Exceptions to the right to negotiate must be measured against international human rights standards, and in particular, against the extent to which they allow for native title claimants’ effective participation in the management of mining and mining exploration on their traditional lands. The processes adopted by state and territory governments and other administrative authorities vary in the extent to which they realise this standard.
In all cases, the treatment of such backlogs has serious consequences for the rights of native title parties. There is a great danger that goals of expediency in reducing the backlog may override the protection of native title parties’ internationally recognised rights to effective participation in the administration of mining and mining exploration on their traditional lands. In the reporting period, some of the following processes have been used in ways that undermine the principle of effective participation:
There have also been some positive developments within the reporting period. These include:
Most of these developments are in their early stages, and the extent to which they will adequately protect the right of native title parties to effective participation is yet to be seen.
There were several cases in the reporting period that have contested the manner in which governments and the NNTT administered native title, in particular, the expedited procedure exception to the right to negotiate.
The expedited procedure operates in the NTA as a limited exception to the right to negotiate where the Government considers that a proposed mining activity will have little impact on native title. The circumstances in which a Government may impose the ‘expedited procedure’ are limited. A government may notify the native title parties that the proposed act attracts the ‘expedited procedure’ if it considers that:
(a) The act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders ... of native title in relation to the land or waters concerned; and
(b) The act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders ... of native title in relation to the land or waters concerned: and
(c) The act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
The operation of this section will vary considerably according to the traditions, community and social activities of any particular native title claim group, the nature, quantity and location of their significant sites and the nature of the mining interests proposed. There is also considerable variation in the exercise of the many kinds of mining exploration and prospecting activities that may take place on an exploration or prospecting licence or permit.
As stated above, the reporting period is notable for the state and territory governments that began to address ‘backlogs’ of mining and exploration tenure applications that had been accumulating since the NTA commenced. Some governments began addressing these backlogs by issuing section 29 notifications in large numbers with the expedited procedure exception applied as a matter of policy to all exploration tenures. In particular, Western Australia applied the expedited procedure to all exploration licence applications, while the Northern Territory applied the expedited procedure to all non-productive mining licences except 16 exploration licences.
The blanket application of the expedited procedure exception to the right to negotiate is a significant breach of the right of Indigenous peoples to effective participation in the management of their traditional lands and is inconsistent with the NTA. These issues are discussed in detail below. The breach is more serious however in a legal context where there is no effective remedy for inappropriate applications of the expedited procedure exception and where no other protection is afforded for native title parties’ right to effective participation. The following federal court case, National Native Title Tribunal (‘NNTT’) determination and administrative guidelines issued by the NNTT have significantly limited the extent of independent arbitration regarding the use of the expedited procedure exception.
In the case of Holt v The Hon. Daryl Manzie (‘Holt’) the Northern Land Council (the ‘NLC’) asserted that the Northern Territory Government had failed to comply with the statutory provisions of the NTA in making the decisions:
The NLC sought that these decisions be declared void on administrative law grounds.
In particular, the NLC argued that when making a decision that the expedited procedure applies to a proposed future act, the decision-maker is required by law to consider the matters listed in section 237 of the NTA. It was further asserted that it is an improper exercise of administrative powers to apply the expedited procedure to all the applications for exploration licences, without regard to the question of whether the particular act is an act attracting the expedited procedure. The NLC argued that the decisions were void because neither the Northern Territory Minister for Resource Development nor the Northern Territory Government had given proper, genuine and realistic consideration to the issues listed in section 237 NTA.
Justice Olney decided that neither the decision to issue the section 29 notices fortnightly, nor the decision to include an expedited procedure statement in all the early notices were decisions that were reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth).
The result of this case is that the only remedies available to native title parties who believe that the expedited procedure has been applied inappropriately are those contained within the NTA itself. The problem with this situation is that the only remedy within the NTA, the objection procedure, has been increasingly circumscribed in the reporting period. This is demonstrated in the following discussion of the objection process in the Roy Dixon case, and the subsequent guidelines developed by the NNTT.
Under the NTA, if a government party notifies a native title party that it intends to apply the expedited procedure to a future act that would otherwise attract the right to negotiate, the native title party may lodge an objection within four months of the notification day with the NNTT. If a native title party lodges an objection the NNTT must conduct an inquiry and make a determination as to whether the act should attract the expedited procedure. If the NNTT finds that the expedited procedure should not apply, the ‘right to negotiate’ process is reinstated. Acceptance of an objection does not automatically reinstate the right to negotiate process. It merely allows the native title parties the opportunity to argue before an independent arbitrator that their rights to negotiate regarding the development on their lands may have been removed contrary to the requirements of the NTA.
Within the scheme of the NTA, the objection procedure acts as a check on Government parties that apply the expedited procedure inappropriately. While the expedited procedure is an exception to the right to negotiate, it is relatively easy to trigger. A government party merely has to insert a statement in the section 29 notice of proposed future acts that it ‘considers that the proposed future act is not likely to interfere directly’ with the matters listed in section 237 NTA. The objection provisions ensure that this process remains open to some scrutiny.
The objection procedure is an important safeguard as it is the only mechanism in the NTA that ensures that the removal of the right to negotiate (through the expedited procedure) occurs in accordance with the requirements of the NTA. In fact, since the decision in Holt v Manzie it may be the only check on the expedited procedure power.
In the NNTT determination in the Roy Dixon case Franklin QC commented on the NNTT’s exercise of its powers and functions when a native title party lodges an objection to a government party’s application of the expedited procedure exception to the right to negotiate.
The case dealt with a claim by the Northern Territory Government that the objections lodged by the native title party were invalid for not complying with the requirements of section 76 NTA and Form 4 Schedule 1 of the Native Title (Tribunal) Regulations 1993 (the ‘Regulations’). The relevant sections of the NTA and Regulations are set out below:
Section 76
Material and fees to accompany applications
An application must
(a) be in the prescribed form; and
(b) be given to the Registrar; and
(c) contain such information in relation to the matters sought to be determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed fee
Form 4 — Native Title (Tribunal) Regulations 1993 The following information and the documents referred to in the application are provided for the purposes of the objection:
(7) a statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.
(8) an outline of the type of evidence that the objector will produce to the National Native Title Tribunal.
Franklin QC held that for a native title party’s objection to comply with the NTA and Regulations, more was required than merely ‘reciting’ the provisions of section 237 NTA (which defines the future acts that attract the expedited procedure). Rather, compliance requires an indication of the impact of the proposed act on the community or social activities of the native title holders or areas or sites of particular significance or any land or waters concerned (section 237(a) NTA) and so requires a statement of the community or social activities that are likely to be interfered with and the likely impact on them of the future act. Further, the areas or sites of particular significance (section 237(b) NTA) and the impact of the future act upon them must also be identified in some way.
As discussed above, the objection procedure creates a check within the NTA as to whether the expedited procedure has been legitimately applied. However, the Roy Dixon determination means that native title parties have to prepare considerable extra material in order to have an administrative decision to remove their right to negotiate independently assessed. This interpretation of the requirements to object to the expedited procedure shifts the focus of the consideration away from whether an expedited procedure exception legitimately applies. Rather than the government party that applied the expedited procedure exception being called upon to establish that the proposed future act was sufficiently low impact to fit within the criteria set out in section 237 NTA, instead any independent consideration of this issue is dependent upon the native title parties’ first providing evidence that it does not. The result is that it is left open to governments to use the expedited procedure process, not as an exception to the right to negotiate, but as an alternative procedure in itself. Such an interpretation shifts the balance in the NTA and fails to adequately protect Indigenous peoples’ rights to effective participation in the management of their lands.
The implication of this determination is that the NNTT does not consider objections if the objection does not strictly comply with the requirements set out above. However, Franklin QC left open the question of the NNTT’s jurisdiction to hear an objection application where the native title party did not fully satisfy these requirements. He held that the NNTT is compelled to accept an objection to the expedited procedure if the conditions set out in sections 76 and 77 are fully complied with, and that the NNTT can accept or reject an application which does not fully comply. Nevertheless, the NNTT’s ‘... discretion [to accept a non-complying objection application] should only be exercised if there is shown to be a good reason for non-compliance with the requirements of Form 4’. Significantly, Franklin QC also held that if:
the Form 4 is deficient but is accepted as a matter of discretion, and the evidence produced at the inquiry is such as to lead to the conclusion that the act does not meet each of the criteria of s 237(a), (b) and (c), then the Tribunal must find, as a matter of law, that the act is not one attracting the expedited procedure regardless of any relevant omission by the objectors of information required by the Form 4.
Franklin QC’s determination in Roy Dixon became the basis of Guidelines issued by the NNTT regarding its acceptance or not of objections to the expedited procedure lodged by native title parties (discussed below). As the determination is not a Court decision, its interpretation of the NTA is not binding on subsequent decisions. Nevertheless, in light of the position subsequently taken by the NNTT in its Guidelines, it is interesting to note that Franklin QC accepts that even if the form of an objection is inadequate, this does not preclude its acceptance by the NNTT and does not preclude the NNTT from concluding that the expedited procedure exception has been inappropriately applied, thus reinstating the right to negotiate process.
The NNTT issued ‘Guidelines on Acceptance of Expedited Procedure Applications’ (the ‘Guidelines’) on 8 May 2001. The Guidelines were controversial among native title parties because they went beyond the terms of the NTA and Regulations and included detailed information about what the NNTT would require before it would accept ‘objection applications’. These requirements meant that native title parties would have to prepare considerable extra material in order to have an administrative decision to remove their right to negotiate independently assessed. The Western Australian Aboriginal Native Title Working Group (WAANTWG) believed that the requirements for objection applications to meet the criteria specified by the Guidelines were such that fieldwork involving professional staff and Indigenous informants would be required.
As a consequence of the concerns raised, the NNTT agreed to accept written submissions regarding the Guidelines. Submissions were made by various bodies and governments and on 16 October 2001 the NNTT subsequently issued revised Guidelines and an accompanying ‘Explanation’.
The revised Guidelines substantially reduced the detail required by the original Guidelines for acceptance by the NNTT of an ‘objection application’. However, the revised Guidelines also stated that the NNTT had no discretion to accept objection applications that did not strictly comply with the NTA and Regulations. The revised Guidelines assume that the NNTT does not have jurisdiction to determine an expedited procedure application where the objection does not conform to Form 4 of the Regulations.
The position adopted in the NNTT’s revised Guidelines unnecessarily restricts the circumstances in which the NNTT can independently review whether governments have appropriately applied the expedited procedure exception to the right to negotiate. The adoption of this position means that some native title parties may lose their right to negotiate even when it would otherwise be required under the NTA. Such an eventuality is a breach of the international ‘effective participation’ principle; a breach which, while permissible under the NTA, is not required by the NTA. The loss of the NNTT’s supervision of government use of the expedited procedure is worse because the Federal Court will not review government use of expedited procedure. The revised Guidelines are thus inconsistent with international human rights norms that protect Indigenous peoples’ rights to effective participation in the development of their lands.
The NNTT’s approach is not required by, and arguably is contrary to, the terms of the NTA. The Tribunal’s role, set out in section 32(4) NTA, is to determine ‘whether the act is an act attracting the expedited procedure’. Thus the central issue before the Tribunal is the impact of the proposed development on Indigenous community activities, sites of significance or land. To hold that the failure of the objection application to comply with a regulatory form deprives the Tribunal of jurisdiction to determine whether the expedited procedure applies to remove the right to negotiate does not reflect the purpose of the Act.
In fact, in relation to jurisdiction, the Guidelines appear to be shaped by only two of the three applicable statutory principles contained in section 109 of the Act (those that promote the speedy or efficient resolution of the Tribunal’s statutory functions), without paying equal regard to the third principle, that the Tribunal is not to be bound by technicalities, legal forms or rules of evidence. In the section entitled ‘General Principles’ the Guidelines specifically point out subsections (1) and (2) of section 109, but omit the equally pertinent (and equally binding) subsection 109(3). The subsections state:
109 Tribunal’s way of operating
Objectives
(1) The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.
Concerns of Aboriginal peoples and Torres Strait Islanders
(2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.
Tribunal not bound by technicalities etc.
(3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence [emphasis added].
All three subsections should direct the way in which the NNTT operates. Yet no reference is made, nor weight apparently attached, to section 109(3) in devising the revised Guidelines.
This over-emphasis on promptness at the expense of other considerations also appears in the Tribunal’s Explanation of Guidelines on Acceptance of Expedited Procedure Objection Applications (the ‘Explanation’), paragraph 6 of which states that:
It is also relevant that the Federal Court accepts that an expedited procedure determination is to be made as speedily as possible. (Western Australia v Ward (Lee J), [1996] FCA 993; 1996 70 FCR 265 at 278: 148 ALR 753 at 766).
The relevance of the fact that ‘the Federal Court accepts that an expedited procedure determination is to be made as speedily as possible’ is its application to the NNTT’s function of hearing and determining an expedited procedure objection. Refusing to consider an expedited procedure objection at all is not a ‘speedy’ way to determine an objection. It is simply not determining the objection.
The principle of promptness should not operate at the expense of native title parties’ right to have their objection heard, especially where such a procedure removes a substantial right. Nor is this emphasis on promptness at the expense of rights reflected in the NTA when read as a whole.
The right to negotiate also enjoys protection within the international framework of human rights, including the instruments recognised in the Preamble to the Native Title Act. These principles cannot be realised if the right to negotiate can be displaced by a process in which the non-compliance with legal forms is a threshold issue.
In addition, the performance of functions and the exercise of powers conferred by or authorised by the NTA must be in conformity with the Racial Discrimination Act (the ‘RDA’). Given the discriminatory effect of failing to protect Indigenous peoples’ right to effective participation regarding developments on their land and the consequent risk that valuable native title rights may be extinguished or impaired, s7(2)(a) applies to ensure that the Tribunal exercises its powers to hear any objections to the expedited procedure.
In addition to the limitations on jurisdiction that the revised Guidelines convey, concerns remain about the degree of particularity required by the Guidelines.
The original Guidelines provided detailed information about what the Tribunal considered was required to comply with the relevant sections of the Act and Regulations. These requirements went well beyond what was specified in the Regulations or Form 4. The revised Guidelines have rightly decreased the matters required by the original Guidelines. However, the revised Guidelines continue to require that matters be canvassed that are not required by the Act or Regulations. The revised Guidelines state that:
... Compliance with paragraph 7 requires a statement why the applicant has the belief of likely interference or disturbance and so must contain identification of the relevant activity or activities, site or sites, area or areas and land or waters the subject of such belief. Such identification is also necessary for a statement of believed likely impact of the act on any such activity, site, areas, land and/or waters claimed in the objection.
This statement goes beyond what is stated in the Act and Regulations. If the Tribunal requires such information before it will consider whether the expedited procedure has been appropriately applied this will prejudice the rights of native title parties.
The right to negotiate is a significant right. It is an expression of the internationally recognised human rights principle that Indigenous people have the right to effective participation in the development of their traditional lands. Within the NTA it is a broad and important right that gives rise to negotiation rights regarding the impact of proposed future acts on claimants’ native title, on their social, cultural and economic structures, including management, use and control of native title lands and waters.
As the context of the NTA makes clear, the right to negotiate is a general provision applying to a class of activities. The expedited procedure is a limited exception to this general provision. The right to object to the expedited procedure is an important check that ensures that the expedited procedure is not applied contrary to the intention of the Act.
Of the objections lodged between May 2001 and November 2001, except those withdrawn without any agreement, 34% were not accepted by the NNTT. In the context that the objection procedure may be the only check on the inappropriate use of the expedited procedure exception, it is not acceptable that this number of objection applications is not accepted by the NNTT. In the same period, of the 79 objections that were determined by the Tribunal, the NNTT held that the expedited procedure applied in only 13 cases. This shows that in a significant number of cases when the NNTT considers objections applications, the expedited procedure is shown to have been applied contrary to the NTA.
The NNTT should not adopt an interpretation of its powers under the act that is inconsistent with human rights standards, where it is not expressly required by the NTA. As the failure to hear and determine objections to the expedited procedure discriminates against native title claimants in favour of non-Indigenous interests, and is not expressly required by the Act, such a result should not be adopted.
Furthermore, under section 109(3) of the Act the Tribunal is not bound by ‘technicalities, legal forms or rules of evidence’. Compliance or non-compliance with a legal form, in my view, should not be determinative of the Tribunal’s jurisdiction.
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In my previous reports I have criticised the Commonwealth Government’s adoption in 1998 of amendments to the NTA that introduced restrictions and exceptions to the right to negotiate. In so far as they reduce the protection afforded to Indigenous peoples’ property and cultural rights in comparison to the rights of non-Indigenous people, these amendments are racially discriminatory. The amendments have been strenuously criticised in the international forum for their breaches of human rights treaties and conventions to which Australia is a party.
The amended NTA now sets the framework within which states and territories administer native title within their borders. States and Territories are bound by the NTA even though parts of the NTA breach the international human rights norms. However, while the framework set up by the NTA is discriminatory, state and territory governments retain considerable power (within the constraints of the NTA) to effect native title outcomes in ways that either reduce or entrench this discrimination. As a matter of law, as well as principle, States and Territories should exercise their powers under the NTA, where possible, consistently with relevant international human rights norms.
The Universal Declaration of Human Rights (the ‘UDHR’) requires that ‘every individual and every organ of society’ should strive to secure the ‘universal and effective recognition and observance’ of human rights, including non-discrimination and equality before the law and the right to own property. The UDHR is now considered part of jus cogens, the customary international law from which no derogation is permitted. State and territory governments should strive to exercise their powers under the NTA in ways that are consistent with the prohibition on racial discrimination contained within the UDHR.
State and territory governments and other government institutions should also exercise their powers under the NTA in ways that are consistent with the international human rights instruments to which Australia is a party, including the International Convention on the Elimination of All Forms of Discrimination (the ‘ICERD’). The ICERD makes clear that the obligations of nation-states that are parties to the ICERD to prevent racial discrimination extend to all organs of government within the state. The ICERD states that the State Party:
Undertakes to engage in no act or practice of racial discrimination and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.
Shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination
The supervising committee for the ICERD, the Committee on the Elimination of Racial Discrimination (the ‘CERD Committee’) further stated in 1994:
Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories ...
The Vienna Convention on the Law of Treaties, to which Australia is also a signatory, further provides that:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty
These provisions and commentaries make clear that Australia’s human rights treaty obligations can be breached by the actions of state and territory governments and other government institutions.
Australian domestic law supports the proposition that states and territories should exercise the powers granted to them under Commonwealth statutes consistently with the international human rights treaties. There is a long-established legal presumption that a statute should be interpreted and applied, as far as its language admits, so that it is not inconsistent with the comity of nations and established rules of international law. If the Commonwealth legislature intends to effect inconsistency ‘it must express its intention with irresistible clearness’. More recently, the High Court has held that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations. Consequently, where there is ambiguity courts should interpret statutes in ways that accord with the obligations of Australia under an international treaty. Thus when the language of a statute (such as the NTA) permits a construction of the statute that is consistent with international human rights law state and territory governments should act in accordance with Australia’s human rights treaty obligations by adopting that construction.
The obligatory nature of international human right instruments with regard to the administration of native title under the NTA is further strengthened by the inclusion of section 7(2) in the NTA. Section 7(2)(b) provides that any ambiguous terms in the NTA should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity. Section 9(1) of the RDA provides that:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race ... which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Furthermore, the RDA makes provision for giving effect to the ICERD, which is set out in its entirety in the Schedule of the RDA. The strong presumption that arises is that the NTA should be construed in conformity with the provisions of the ICERD and its interpretation by the CERD Committee. Unless explicitly stated to the contrary, Parliament should be presumed to desire Australia to act in conformity with international law.
Section 7(2)(a) of the NTA further provides that:
the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act.
This clearly applies to the powers granted under the NTA to state and territory governments and administrative tribunals’ to administer the right to negotiate processes. The manner in which governments issue section 29 notices is consequently governed by the provisions of the Racial Discrimination Act 1975, including decisions regarding whether to exercise or permit any of the exceptions to the right to negotiate allowable under the NTA.
Any act which has the purpose or effect of impairing the rights of native title holders is an act based on race. Government practices that have the effect of nullifying procedural rights granted under the NTA discriminate against native title holders and native title holders alone. They may therefore amount to discrimination in contravention of subsection 9(1) of the RDA.
State and territory governments and administrative tribunals are bound by the NTA. Nevertheless, they have considerable discretion regarding the manner in which they exercise their powers. Where this is the case they should, as a matter of law as well as principle, exercise their powers under the NTA consistently with relevant international human rights instruments, and in particular the prohibition on racial discrimination found in the ICERD and Australia’s Racial Discrimination Act.
The failure to provide native title parties with the opportunity to negotiate about the development of their native title lands favours the property rights of kinds held by non-Indigenous people over those held by Indigenous people. This is prima facie inconsistent with Australia’s obligations in relation to equality and the rights of Indigenous minorities. Where they have a choice, state and territory governments and administrative tribunals must administer the right to negotiate in ways that preserve the equal protection of Indigenous property rights and preserve Indigenous peoples’ rights to effective participation in decisions affecting their traditional lands.
The following section outlines human rights benchmarks against which governments should measure their administration of the right to negotiate and their mining future acts processes and policies.
The principle of equality requires that Indigenous interests in land be protected equally to non-Indigenous interests:
Future act processes should recognise and respect Indigenous peoples’ rights to effective participation in decisions affecting their traditional lands:
The unique nature of native title means that equal protection of native title interests will sometimes require native title to be treated differently to non-Indigenous interests:
Future act processes should encourage and allow continued enjoyment of Indigenous culture and laws:
1. That state and territory government departments administering the issue of future act notifications develop strategic plans, in consultation with NTRBs, with the aim of improving the efficiency of their administrative practices.
2.The manner and rate of administering future acts should be determined with the informed consent of NTRBs.
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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:
Following from these human rights standards the negotiation of native title agreements should encompass the following principles:
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.
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.
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:
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.
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.
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). 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. 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 - 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:
...
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 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.
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. Framework agreements can also provide a tool for prioritising limited resources to accommodate Indigenous concerns.
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.
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The 1996 Cape York Peninsula Heads of Agreement agreement 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.
The agreement records, acknowledges and respects the differing interests in the Cape York area:
...
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 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.
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.
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.
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.
...
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.
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 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.
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.
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.
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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.
Native title is a group or communal right. 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.
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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.
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’. 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.
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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. 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 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.
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’.
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.
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, 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.
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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.
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.
It is also useful for framework agreements to specify within the document the consequences of a party’s default.
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If the framework agreement creates no legal relations between the parties and is simply a protocol for future negotiations 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.
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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.
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.
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The Council for Reconciliation included in its report to Parliament 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.
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.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/35.html