Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Marcia Langton[2] and Lisa Palmer[3]
This paper is based on preliminary research undertaken as part of a larger project examining treaty and agreement making with Indigenous Australians and the nature of the cultural, social and legal rights encompassed by past, present and potential agreements and treaties. This research has included a partial audit of current agreements and the establishment of a database to allow systematic analysis of the purposes, status and outcomes of agreements. Our fieldwork has largely been based in northern Australia and the examples discussed here are drawn mainly from that region. While many of the agreements we are examining relate to land, non-land agreements such as those made in the areas of health, education and research are also of significance to our research. This paper, which is based on our research thus far and on literature relevant to modern agreement making in Australia, investigates the issues and trends that emerge from a range of agreement-making practices and experiences, from a variety of Australian contexts. It frames this discussion in an analysis of the relevance of modern agreement making in Australia to calls by national Indigenous leaders for a national treaty process. Internationally, Indigenous peoples have long attempted to negotiate with nation states for the recognition and redress of historical injustices. To varying degrees, they have also sought state recognition of their rights of sovereignty. In his book, The Guilt of Nations, Barkan[4] examines the growing international practice of nations’ negotiating restitution with the victims of historical injustices including the Holocaust and the incarceration of Japanese Americans in the United States in World War II. Barkan argues that these claims (whether by Indigenous peoples or others) based on injustice and the desire for recognition by the nation state are increasingly addressed by negotiating restitution.[5] The power of this process of voluntary negotiations and agreements is that, while it goes some way to making amends for past injustices, it also redefines future interactions between victims and perpetrators and attempts to negotiate improvements on existing social injustices. Moreover, restitution enables victimised groups to be recognised as groups, forcing a re-examination of the Enlightenment understanding of justice as the protection individual human rights:
A strong claim for restitution begins from a neo-Enlightenment morality — that is, the recognition of an ensemble of rights, primarily the rights of people and nations to decide for themselves and to reject external impositions ... Restitution as a theory of international relations proposes a process, not a specific solution or standard. It underscores a milieu in which many nations and minorities see greater benefits to themselves in conducting dialogues and reconstructing shared pasts as the basis for both the recognition of their identities and reconciliation ... Agreements are reached voluntarily, if under pressure, and as part of a democratic process ... the theory of restitution takes the pragmatic road of building upon agreements, first, in places where such changes are welcomed. These principles are then sought out and embraced in other cases.[6]
Australian governments have adopted policies aimed at various forms of material and cultural restitution, beginning with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This process has stalled somewhat since 1996 as the Howard Liberal Government has attempted to minimise the extent of native title rights and has refused to extend a national apology to the ‘Stolen Generations’. Nevertheless, agreement making with Indigenous people, across the public and private spectrum, has become commonplace in Australia over the last twenty years.
This emerging culture of agreement making is not homogeneous. It is evident in a range of fields and jurisdictions, under a range of regimes, and in a variety of contexts and circumstances. Whilst it is important to recognise and investigate this emerging trend toward agreement making (as against litigation or political intervention), the mere fact that an increasing number of agreements are being negotiated does not of itself guarantee equitable outcomes for Indigenous parties.[7] As such, any research into agreement-making trends needs to identify benchmarks and outcomes under a range of regimes, in government and in industry.[8] There is insufficient data for a comprehensive review of such matters in this paper; rather, we provide a survey of the trends and issues in our findings to date.
Agreement making with Indigenous people has been a feature of the Australian policy landscape since the first agreement signed under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA’). On 3 November 1978, two agreements were signed: the Ranger Uranium Project Agreement and the Kakadu National Park Lease Agreement.[9] Since the first use of the mining, exploration and other special provisions of that Act to effect these agreements with groups of traditional Aboriginal owners, there has been a proliferation of agreements between Australian Indigenous people and resource extraction companies, railway, pipeline and other major infrastructure project proponents, local governments, state governments, farming and grazing representative bodies, universities, publishers, arts organisations and many other institutions and agencies. Some of these agreements have statutory status, such as those concluded under the ALRA; some have resulted in determinations of the Federal Court of Australia; some are registered under the terms of the Native Title Act 1993 (Cth) (‘NTA’). Others are simple contractual agreements that set out the terms of ‘licences to operate’ and future developments. Yet others are memoranda of understanding or statements of ‘commitment’ or intent.
The ALRA provided for statutory titles to recognise both Aboriginal customary land tenure systems and the need for procedures to enable access to and use of Aboriginal land by governments and developers such as miners and explorers. Other legislation in several states similarly provided for grants of land (as acts of favour and grace of the Crown) to Aboriginal trusts and recognised traditional, historical and residential Aboriginal interests.[10] However, it was the mining and exploration provisions of the ALRA that caused the resource industries to lobby successive Commonwealth, State and Territory governments to diminish Aboriginal rights to enable easier access to Aboriginal land for the resource industry. This was because the provisions required Aboriginal informed consent before agreements could be confirmed by the Minister. Industry representatives construed Aboriginal consent as a ‘veto’, and argued that this right created special conditions that no other landholders had. They also argued that these special conditions discriminated in favour of Aborigines, and therefore disadvantaged ‘ordinary’ Australians. This formed the basis of the opposition of the resource industry to Aboriginal land rights for the next two decades.
Despite the public remonstrance of the industry representatives, agreement making between resource companies and Land Trusts, with the assistance of the Northern Territory Aboriginal Land Councils, continued. It is estimated that there are now 251 land use and 200 exploration agreements in the Northern Land Council’s jurisdiction alone. Parties to land use agreements, other than the Land Trusts on behalf of the traditional owners, include representatives of Commonwealth and Territory governments (for land management, national parks, public works, etc) and of industries (eg, minerals, infrastructure, tourism, fishing, aquaculture and pastoral). The agreements set out various conditions concerning access, cultural heritage protection, rental and royalty payments, and other matters.
In 1992, the High Court of Australia overturned traditional views on Aboriginal rights in land in its famous Mabo (No 2) decision and recognised native title as a form of customary title arising from traditions and customs. The common law recognition of native title by the High Court established that customary rights to land pre-existed and, under certain conditions, survived British sovereignty. Native title survives in a range of circumstances in which it has not been extinguished by valid acts by the Crown, including not only extinguishing acts such as valid grants of title, but also extinguishing acts such as those provided for in the NTA amendments of 1998 that limit the recognition of native title. The codification of native title in the NTA aimed, among other things, to resolve the retrospective effects of an underlying title which had the potential to invalidate land titles, including pastoral leases.
The NTA emphasises agreement making as the preferred method of resolving a wide range of native title issues.[11] Especially important in this context are the sections of the NTA that provide for agreement making, such as consent determinations and Indigenous Land Use Agreements. Voluntary agreements, then, can take the place of the onerous native title regimes imposed by State Governments by allowing negotiations to proceed without the limitations of the NTA but with the protection of the Indigenous Land Use Agreement provisions of the NTA.
Mary Edmunds, after examining agreement-making trends prior to the 1998 NTA amendments,[12] writes that ‘[p]rior to the amendments, s.21 of the Native Title Act 1993 was headed “Agreements to surrender etc. native title”’. She explains that
[s]ection 21 fell within Division 3, dealing with ‘Future acts and native title’, and dealt with the various ways in which native title holders might, under an agreement with the Commonwealth, a State or a Territory, either extinguish their native title rights and interests (s.21(1)(a)), or authorise a future act that would affect their native title (s.21(1)(b)). The section, on voluntary extinguishment or authorisation of a future act, contained the only reference in the Act to “Regional or local agreements’ and stated that:
Section 21(4) Subsection (1) does not prevent agreements mentioned in that subsection being made by native title holders on a regional or local basis. [13]
She further observed that
[i]t was a modest enough basis for the remarkable growth of a focus on regional agreements by Indigenous, government and non-Indigenous interest groups subsequent to the passing of the Native Title Act 1993 in December 1993 — although it should be said that the inclusion in the Act of any reference at all to regional agreements was based on input from the Aboriginal negotiators. Their interest in the possibility of regional agreements was already established, to a significant extent as a result of their interaction with other indigenous groups, particularly from Canada and, to a lesser extent, from New Zealand. Work on ways in which agreements between Indigenous and non-Indigenous groups might be achieved in Australia was already being carried out by at least two Aboriginal organisations, the Kimberley and Cape York Land Councils, prior to the passing of the Act.[14]
In contrast to the Kimberley and Cape York Land Councils, which operate under State regimes with no or little statutory recognition of Aboriginal rights in resource negotiations, the Northern and Central Land Councils, which operate under the provisions of the ALRA, were less inclined to base their agreements on Canadian models because of the favourably strong provisions of the ALRA. However, while the ALRA applied strictly only to unallocated Crown Land, native title applicants were concerned in many cases with land subject to pastoral leases, national parks reservations, town leases and other titles, which, until 1998, did not extinguish native title. In these circumstances, interest in the idea of regional agreements grew, and Edmunds suggests, referring to the 1993 provisions of the Act, that:
One reason for the growth of interest in developing regional agreements since the passing of the Native Title Act 1993 was perhaps the very simplicity of the s.21(4) provision. The definition of regional and local agreements in the Act was left open. It was limited only by the much more detailed provisions in the Act related to the definition of ‘native title holder’ and, even more importantly, by the willingness of the parties to reach an agreement that effectively accommodated their varying particular interests.
Another reason was undoubtedly the need to look for practical ways of realising native title rights that might provide an alternative to the laborious process of determination (itself based in the first instance on agreement through mediation (ss.71, 73) ... ). The attraction of regional agreements to all interest groups was indicated by the broad support to this point given, in principle at least, by the Commonwealth Government (Ten Point Plan 1997:3, 12–13) and by both industry and the National Indigenous working Group (1997:3, 12–13).
This support, and a statutory underpinning that was lacking in the original s.21, has now been legislated in the amended Native Title Act 1993 with the provisions relating to Indigenous land use agreements (Division 3 Subdivision B-E). [15]
National Indigenous leaders have recently expressed a variety of views on the need for a national treaty process or framework for agreements. The current ATSIC chairman, Geoff Clarke, considers a national treaty imperative. He advocates it as a step that will recognise and resolve the issue of Aboriginal sovereignty and ‘right the relationship between the Indigenous and non-Indigenous peoples.’[16] He states that:
I believe that a binding, properly negotiated Treaty between Aboriginal and Torres Strait Islander peoples as the Indigenous peoples of Australia and the Australian Government will, (and this list is not exhaustive):
| • | establish a framework for settling relationships between Indigenous peoples and governments at local, regional, state, territory and federal levels; |
| • | provide legal and constitutional recognition that Aboriginal peoples and Torres Strait Islander peoples have inherent rights; |
| • | recognise and protect the unique cultures and heritage of Aboriginal peoples and Torres Strait Islander peoples; |
| • | ensure that the Aboriginal peoples and Torres Strait Islander peoples have control over their lands, seas and resources.[17] |
Michael Dodson has outlined the laws pertaining to Aboriginal and Torres Strait Islander people in Australia and the way in which the Australian Constitution might be changed to accommodate a greater recognition of Indigenous rights.[18] He supports the 1983 proposal of the Senate Standing Committee on Constitutional and Legal Affairs to amend s 105 of the Constitution. Such an amendment, particularly if it were supplemented by explicit mention of Indigenous rights and interests in a modified constitutional preamble, would provide an enabling power for the Commonwealth to make agreements or treaties with groups representative of Aboriginal and Torres Strait Islander people. The amendment could then be used to ‘entrench’ a series of local and regional agreements and to give them constitutional force. This manner of protecting treaty and agreement making could also address the need for the constitutional protection of human rights and strengthen Australia’s currently inadequate anti-discrimination laws.[19]
The operation of the ALRA in the Northern Territory remains the high water mark in Australia for the statutory protection and advancement of Indigenous rights and interests in land. In the Northern Territory, the ALRA’s political leverage affords traditional owners a powerful negotiating stance in native title-related discussions and agreements. Similarly, a national approach to entrenching Indigenous rights that set appropriate standards for the recognition and protection of those rights and interests would offer Indigenous groups across Australia substantial political and legal leverage in negotiating local and regional agreements.
Larissa Behrendt[20] considers the Canadian Constitutional entrenchment of treaties and agreements a model that might be used by Indigenous people in Australian circumstances — especially in relation to the proposal to amend s 105 of the Constitution to allow for the recognition of Indigenous sovereignty or jurisdiction. Behrendt writes:
There has never been the denial of Indigenous sovereignty in Canada that has occurred in Australia. Rights have also been conceptualised in a more holistic way as a result of the treaties. When native title was found to exist as part of the common law in Canada, its extension to hunting and fishing rights was readily accepted because the treaties had always emphasised the inter-relationship between land and livelihood in claims against the Canadian state. Treaties have been successful in protecting rights to land and to hunt and fish. Governments can recognise an inherent right to self-government and enter into meaningful negotiations with Aboriginal communities to implement it. This process is designed to produce forms of internal self-determination, that is, greater autonomy, within Canada.[21]
While Canada has a long colonial history of treaty making (and breaking) with Indigenous peoples, its constitutional protection of treaty rights, which has been in place since 1982, has helped to provide more effective mechanisms for the enforcement and protection of treaty rights.
The question of how to enact such a constitutional amendment in Australia is another issue currently being debated by Indigenous leaders. Pearson[22] and Ah Mat,[23] Indigenous leaders from Cape York, argue that support from 80 to 90 per cent of the electorate is required to pass any proposed amendment in a Referendum. To achieve this level of community support would require bipartisan political support, which in turn entails the need to secure support from electorates in rural, conservative and regional Australia. According to Pearson and Ah Mat, the Indigenous leadership should formulate and implement intelligent political strategies aimed at building alliances with conservative, rural and regional Australia: alliances grounded in mutual commitment to enabling regional social and economic advancement. The emerging culture of agreement making in Australian is one process that is incrementally building such alliances. The process is one of regional engagement through which Indigenous people can ‘develop economically’ and ‘carve out a place in the wider regional economies in which Aboriginal people are located.’[24] If working economic structures grounded in strong Indigenous governance arrangements — ‘doing the hard yards to make Indigenous governance work amongst our people’[25] — are established, a national agreement on the frameworks and principles necessary to guide Indigenous and non-Indigenous governmental engagement should be achievable.
In contrast to this focus on conservative and economic alliances, Michael Mansell advocates a moral approach to achieving a national treaty.[26] He argues that a successful treaty process must be grounded in the treating parties’ acceptance of aspirational ideals based on a just political settlement of competing claims for sovereignty and self-determination. Mansell writes:
We must win the battle of ideas. Our cause is a just one. Our quest is to convince others of the justice of our cause. To do that we must be the ones to lead the debate, by presenting ideas and challenging the old assumptions. If the test for white Australia is to be open minded and thoughtful, the task for us is to rise above our predicament and declare the solution.[27]
To treat is to negotiate the terms of a relationship. These terms may subsequently be defined and formalised by a treaty or agreement which gives rise to mutually-binding obligations. Goldsmith and Posner[28] argue that a rational choice approach to understanding treaties and other relations between nation states emphasises the importance of bilateral relationships and strategies that create tangible outcomes. These outcomes derive from the coincidence of interests, from coercion and cooperation; they can support and give form to agreements and other arrangements which otherwise exist only as aspirational universal norms under the regime of Customary International Law.[29]
If we are to take a rational choice approach to understanding treaty and agreement making — an approach which emphasises that, for an agreement between two nations to succeed, there must be some mutually pressing reason related to security or economic issues for both parties to abide by the terms — then it is clear that, of itself, the ‘battle of ideas’ will not have the political force required to bring a treaty process to fruition. Nor would a moral victory lay the ground for strategic alliances and an ongoing, mutually beneficial relationship between the treating parties.[30]
If a constitutional amendment bringing into effect Commonwealth powers to underwrite any existing and prospective treaty-like documents is the most plausible way to achieve a national settlement on Indigenous issues, then, from a rational choice perspective, we also need to commit to the processes through which Indigenous people and others are building alliances within different localities and regions. Further, we need to understand the ways in which these agreements can and do influence regional political and economic strategies.
In his study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Martinez observes that the legal nature of an agreement is not necessarily considered to be different from that of a treaty.[31] This is particularly so if the subject matter of the agreement relates to ‘the notion and contents of sovereignty (such as territory/land and other jurisdictional matters).’[32] In such cases, both treaties and agreements are contracts concerning rights of dominion or possession. Many of the modern day agreements between Indigenous people and others in Australia, while not exactly treaties, are, to varying extents, founded in mutual recognition of the respective jurisdictions of the treating parties. When these jurisdictions interact, it is with the express purpose of constituting a fruitful social and/ or economic relationship. Under these circumstances, to treat is to engage in mutually beneficial nation building.[33] This emerging rational choice approach to modern day agreement making, which is driven by particular policy and economic imperatives, points the way forward: towards a national settlement of issues in Australia. It will define developing formal and non-formal jurisdictional relations between Indigenous people, the private sector and government.
Aboriginal people have continued to argue that not only customary property rights in land but also ancient jurisdictions survive, on the grounds that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal governance under the full body of Aboriginal customary laws, by the same logic as that that led to the recognition of native title at common law, must, even if in some qualified way, have survived the annexation of Australia by the Crown.
The Native Title Act administrative regime forces governments to treat with Aboriginal people in a variety of ways. We thus find that, by default, Aboriginal people are — through the cumulative effect of native title and future act determinations both by the National Native Title Tribunal (NNTT) and by the Federal Court — being treated as peoples. Australian understandings of Aboriginal polity have been extended by experience in an environment of dealing with native title parties in relation to economic and land use issues, and resource distribution.
The international literature relevant to this process of agreement making shows that in the United States of America, Canada and New Zealand, and perhaps elsewhere, negotiated agreements have replaced treaties as the modern arrangement for engagement with Indigenous peoples with respect to resource use.[34]
Kingsbury,[35] in his discussion of Indigenous groups and the problems of the liberal non-government organisation model of international civil society, identifies the contradiction that such groups face in the tendency to corporatisation that government policy forces on them:
Claims made by indigenous peoples often depend, for their persuasiveness to the dominant non-indigenous community, on the indigenous group being a traditional one, the inheritor of a people previously wronged and which continues to be recognizable distinct in culture and institutions. But the process of pursuing a claim to land, compensation, or special status, and the structures that must be put in place to manage assets and representation once such a claim succeeds, can result in the transformation of the group’s organization. The group becomes less recognizably the traditional one whose ‘authenticity’ in the estimation of decisionmakers and the wider public had been a predicate of the vitality of the claim. This transformation is usually toward the most successful organizational forms fostered in the law and practice of modern secular liberal societies, principally NGOs or corporations.[36]
Australian Indigenous forms of governance have become the subject of investigation as a result of the corporations provisions of the NTA. These corporations are initially known as a ‘Prescribed Bodies Corporate’ (‘PBCs’). They are designed to enable a framework for the management of native title and to stand in a relationship of ‘trust’ or ‘agency’ to the members of the native title group.[37] However, according to Levy,
[a] body corporate essentially combines the functions of a land council, land trust and royalty association into one organisation, with consequent difficulties of potential conflicts of interest and lack of professional expertise. The likely proliferation of under-resourced bodies corporate, established on an ad hoc basis (mostly in remote areas) through various Court determinations, are likely to inhibit the proper recognition and protection of native title, and also to inhibit the efficient processing of minerals exploration and other development proposals.[38]
Moreover, the establishment of PBCs is not without the usual difficulties associated with Aboriginal disputation over customary land interests. The native title legislative regime and procedures coupled with the process of local and regional agreement making has become an arena of conflict for Indigenous groups. While procedures for making claims draw disparate interests within customary groupings together, they are also driving them apart. Arguments and conflict over land between family or clan members, and between neighbouring groups, are brought to the fore by the focus on their interests in land. While these processes may be a factor in the division and disruption of community relations, more positively, they also drive people to come together to work out primary, secondary and other relationships to land, which, for a variety of historical reasons, may not have been articulated for some time. There is a view widely held in the community of native title practitioners that native title interests are fossilised by tradition, and that each person’s interests are bound by unbreakable rules. This assumption dehumanises the Aboriginal person who is entitled to pursue economic advantage, just as do members of other societies. Native title rights are discerned not only from assertions based on tradition and custom, but also on the observations, for instance, of anthropologists, of such economic activity and personal pursuit of advantage that takes place in native title and other contexts.
Anthropological orthodoxy about Aboriginal rights in land is not without its own problems. The evidence of Aboriginal claimants can be difficult to understand, difficult to translate, or even highly contentious. Anthropological models may not accommodate indigenous views or assertions, or, for example, starkly contradictory accounts by protagonists in Aboriginal disputes. Nevertheless, native title interests are as much economic as jural.
At a community organisation level, native title and the specific rights conferred upon parties through legislation and agreement making now have an increasingly prominent role in local governance arrangements. As a result, decision-making structures and rules are needed to define and formalise the interaction of native title holding bodies with other local and regional Indigenous governing institutions that represent a broad constituent base — including Indigenous residents and others with historical and non-native title interests as well as native title parties themselves.
Existing governance models relevant to the administration of native title feature in other regimes, such as the ALRA.[39] However, even on lands that are administered under the ALRA, conflict with other governance regimes such as the Local Government Act 1993 (NT), confounds attempts to find successful governance strategies that can lead communities towards improved socioeconomic outcomes. For example, the problem of establishing appropriate and effective administration in what began as mission and government settlement communities in the Northern Territory is compounded by the legislative and normative failure of many local community councils to properly recognise the rights of traditional owners and the need to consult with them about the use of their land.[40] Land in these communities has historically been treated by council administrations as communal land rather than land owned by individuals and groups with specific interests in that land. A strategy based on agreement making through formalised arrangements and protocols dealing with land use is now emerging as a way to sort out issues of governance between traditional owners, local councils and council administrative staff like Town Clerks. An additional potential benefit of developing agreements on this largely intra-indigenous or community level is that the process can provide opportunities for community education in relation to people’s legal rights and responsibilities, and allow the exercise of power to begin in places in which people have not had a chance to exercise their rights in this context before. This creates renewed recognition and respect for land ownership.
Agreement on protocols for communications and decision-making between Indigenous landowners and other parties in a region helps to build strong internal governance structures that can both reduce the adverse impacts of local disputes and power manoeuvres, and also assist with the negotiation and implementation of agreements with parties external to the Indigenous domain. For all parties to develop confidence in the process of agreement making, disputes must be solved in a principled way according to established rules. All parties must clearly understand the rules and decision-making processes of the people that speak for that country.
It has been argued elsewhere that the recognition of native title at common law confers recognition of more than a mere right to property for Indigenous Australians. The recognition of property law entails de facto recognition of other laws necessary for the proper functioning of civil society and for the administration of that land.[41] According to Strelein,[42] the recognition of Indigenous autonomy and sovereignty will begin to permeate the legal jurisprudence relating to native title over the next 10 years. Meanwhile, Indigenous people are combing an array of institutional and other tools and building their own frameworks for self government.
On the basis of their research into sovereignty and nation-building in Indian country in the United States, Cornell and Kalt write that an Indigenous nation’s ability to deliver effective governance, and consequently, economic development, is the outcome of ‘de facto’ sovereignty: ‘sovereignty in fact and practice’:[43]
Among the most powerful arguments for tribal sovereignty is the simple fact that it works. Nothing else has provided as promising a set of political conditions for reservation economic development. Nothing else has produced the success stories and broken the cycles of dependence of the federal system in the way that sovereignty backed by capable tribal institutions has done ... The lesson is that sovereignty is one of the primary development resources any tribe can have ... Furthermore, tribal sovereignty works not only for Indians; it has benefits for non-Indians as well. Around the country, economically successful Indian nations are becoming major players in local and regional non-Indian economies ... Economic development on Indian reservations is first and foremost a political problem. At the heart of it lie sovereignty and the governing institutions through which sovereignty can be effectively exercised.[44]
Taylor holds that
[g]overnance occurs through interactions between structure, processes and traditions which in turn determine how power is exercised, how decisions are taken, and how citizens and other stakeholders have their say.[45]
In the context of Indigenous Australia, he writes that:
Strong leadership together with stable, capable Indigenous organisations reflective of, and accountable to, their community’s needs and values form the crucial foundations for regional, community and family socio-economic development.[46]
Several thousand separately incorporated Indigenous organisations have been formed at the regional and community level in Australia since the 1970s. Most of these have enormous demands and responsibilities placed on their institutional capacity and leadership base.[47] Such organisations include ATSIC Regional Councils, Land Councils, Native Title Representative Bodies, Native Title Bodies Corporate, Local Governments, Community Councils and an array of other incorporated associations operating under different statutory and governmental jurisdictions.[48] These organisations all play roles in brokering agreements on behalf of their constituents, and are usually inadequately resourced to do so. Simply identifying native title interests and ensuring the correct distribution of benefits arising from agreements is an extremely resource-intensive task.
As Neate writes, ‘a Court cannot and will not determine the consequences of a determination that native title exists’.[49] The practicalities of implementing such a determination, as well as other social issues unrelated to the provisions of the NTA, must be worked out through the interaction and agreement of those concerned, whether this is between native title parties and non-Indigenous parties or within the intra-Indigenous domain. Hence, the development of strong Indigenous governance structures tailored to local and regional circumstances will be central to the process of achieving long-lasting agreements and beneficial outcomes for Indigenous communities.
The National Native Title Tribunal (‘NNTT’) and the procedures of the NTA are intended to allow determination or negotiation of native title and non-claimant applications relating to land that might be subject to native title.
The NTA provides ‘right to negotiate’ procedures that, following amendments to the NTA, are conceded only to registered native title bodies corporate and registered native title claimants in relation to certain kinds of future acts.[50] As discussed later, the NTA ‘right to negotiate’ procedures pose a number of risks for native title applicants. As O’Fairchaellaigh observes, the NTA threat of arbitration does not necessarily lead to beneficial outcomes for Indigenous interests, even when negotiated agreements are pursued.[51]
There are two different types of arbitration under the NTA: arbitration related to objections to the expedited procedure (the ‘fast-tracking’ process) and arbitration in relation to future act determination applications.
O’Fairchaellaigh[52] notes that the high level of concern felt by native title parties about the pitfalls and hazards of exposing themselves to arbitration (including the statutory requirement that any negotiated royalty provision between the developer and native title parties be negotiated outside of, and prior to, the arbitration process) is forcing native title parties to sign agreements that are detrimental to some of their specific rights and interests that would otherwise be protected by existing legislation.[53] The situation is compounded by the fact that, on the one hand, developers may feel relatively confident that their future act applications will not be disallowed. On the other hand, native title parties have reason to be concerned about exposing themselves to what is a potentially culturally offensive cross-examination that may cause elders to be pressed to detail cultural knowledge not meant for public exposition. In these cases, agreement making does not necessarily lead to preferable outcomes for Indigenous interests.[54] This dissatisfaction on the part of native title parties must have consequences for mining and exploration. The terms of such arbitrated agreements are imposed, and are therefore involuntary, by virtue of the arbitral procedures. Only a generous interpretation would deem such agreements to be grounds for a satisfactory relationship between the parties.
The NNTT, in its correspondence with the authors on this matter, points out that,
The NTA imposes the obligation that all parties negotiate in good faith before the Tribunal can arbitrate, and as such it provides some protection to native title applicants. There are times when the ‘threat of arbitration’ helps parties to view their position more clearly, and to consider the settlement terms of draft agreements more closely. Under section 43 of the NTA, State and Territory administration of the right to negotiate (RTN) is predicated upon the Commonwealth Minister determining in writing that the alternative provisions comply with statutory requirements, and this Ministerial determination itself is disallowable (see section 214)[55].
However, as the Aboriginal and Torres Strait Islander Social Justice Commissioner reports, the NTA, as amended in 1998, allows State governments to administer the right to negotiate and to limit the exercise of the right to negotiate, particularly where native title coexists with non-Indigenous interests, such as pastoral leasehold.
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 ... 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, ... 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.[56]
In correspondence with the authors, NNTT members have sought to explain their duty to the Native Title Act, and have emphasised the operations of the State native title regimes as a factor contributing to the increasing dissatisfaction with NNTT procedures. Amendments to the NTA made in 1994 included provisions for alternative State Government regimes for handling applications for mineral exploration and mining on land where native title may exist. Those provisions have been subject to legal challenge but were upheld in a full Federal Court decision. Since 2000, the Queensland Government has been using its own alternative state provisions but announced that it would legislate in 2003 to adopt the Commonwealth's right to negotiate process.[57] We assume that the reason for the Queensland Government’s policy change in this regard is the administrative burden of the NTA procedures: ‘The Tribunal understands there is currently a substantial backlog of applications for mining exploration permits in Queensland.’
With the exception of Queensland, some State governments had attempted to legislate for ‘alternative procedures’ for future acts. However, under the NTA requirement that federal Parliament approve these State alternative procedures, all but the Queensland legislation was blocked by the Senate. In his discussion of the administration of mining future acts, the Aboriginal and Torres Strait Islander Social Justice Commissioner observes that:
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.[58]
The NNTT has referred to the decision by Premier Peter Beattie that the Queensland Government will legislate early next year to adopt the Commonwealth’s right to negotiate process in 2003 as a potentially positive step in improving the outcomes for parties:
The Tribunal is working closely with the Queensland Government to ensure a smooth transition from the current State scheme to the Commonwealth’s scheme ...
Under the Commonwealth Native Title Act, there are provisions for negotiating agreements about exploration and mining (including Indigenous Land Use Agreements). Where parties cannot agree, the Tribunal can act as umpire to arbitrate within statutory time frames.
For the last two years, Queensland has been using its own alternative state provisions for handling applications for mineral exploration and mining on land where native title may exist. Those provisions have been subject to legal challenge but were upheld in a full Federal Court decision yesterday.[59]
However, the Aboriginal and Torres Strait Islander Commissioner cautions that there is a great danger that goal of 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:
| • | Court decisions have restricted the scrutiny of governments' use of the expedited procedure. |
| • | The NNTT has introduced Guidelines restricting the acceptance of objections to the use of the expedited procedure.[60] |
Of the arbitral functions of the NNTT, there has been particular criticism of outcomes for Indigenous peoples under the expedited procedure regime, both before and after the Native Title Amendment Act 1998 (Cth).[61] Bartlett provides a detailed explanation of the pre-amending Act failure of the NNTT to ‘facilitate the determination of native title and ensure that, whatever the sorry past, future grants would be made in a context that afforded equality to Aboriginal people’.[62] The rules of the expedited procedure, both before and after the amendments, are not merely those contained within the NTA itself. There are also a variety of regulations and instruments — along with the New Guidelines — that the Tribunal administers and which require objectors ‘to provide information at a high level of factual specificity’ in the expedited procedure system.[63] Ritter explains that the process has become adversarial and reports that native title parties find it difficult and confusing:
In the result, native title objectors must currently navigate a procedural labyrinth in which they must heed not only the NTA and its regulations, but also the New Guidelines, the Explanation and an umbrella document called ‘Procedures Under the Right to Negotiate’. This profusion of bureaucratic edicts obviously increases the likelihood of inconsistency and confusion on behalf of the users of the bureau. Once an objection has been lodged and accepted the Tribunal will then administer quasi-litigious proceedings with the grantee party, the government party and the objectors as parties. The Tribunal has outlined extensive procedures enshrining this quasi-litigation. These procedures include conferences and the exchange of evidence and submissions, which contemplate the final disposition of an inquiry into the application of the expedited procedure within seventeen weeks of the end of the objection period. Curiously, the adoption of an adversarial process for objection determinations does not appear to be prescribed by the terms of the NTA. Although the Tribunal must hold an inquiry, ‘hearings’ appear to be an incidental part of an inquiry rather than a prescribed embodiment of it. The Tribunal has elected to adopt the formalistic and procedurally arduous model of adversarial quasi-litigation for resolving objections to the application of the expedited procedure, rather than any of the potential alternatives.[64]
The word ‘avalanche’ has been used to describe the mass of applications that the Tribunal requires from Representative Bodies to fulfil the administrative procedures of the regime.[65] The Aboriginal and Torres Strait Islander Commissioner, in his Native Title Report for the year 2001, uses the term ‘flood’ to describe the State and Territory Governments’ requirements. They ‘have marginalised the right to negotiate by releasing a flood of future act notifications in such a way as to preclude native title representative bodies from being able to effectively respond.’ He also found that:
Governments have avoided the right to negotiate through the blanket application of expedited procedure statement to section 29 notices, combined with the absence of other processes allowing effective participation of native title holders in administration of mining future acts.[66]
The Commissioner argued that ‘[g]overnments have failed to apply the right to negotiate for grants of mining tenures over lands where the law is undetermined with regard to whether native title is extinguished.’
Under s 237 of the NTA, a future act is an act that will trigger the expedited procedure if it:
a). 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). 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 and waters concerned; and
c). 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.
This provision, in conjunction with the new NNTT Guidelines governing its administration, allows only limited recognition of the specificity and complexity of social, cultural and historical Indigenous interests in land. Prior to the 1998 amendments to the NTA, some Federal Court decisions took the view that interference included spiritual and emotional interference and that s 237(a) should be read as taking account of the ‘worst case scenario’ in terms of interference.[67] However, this approach was specifically rejected in the NTA Act, and s 237(a) now refers to an act that is not likely to interfere directly with the carrying on of the community or social activities ... (emphasis added).
Tribunal Members point out that under the NTA Amendment Act 1998 (Cth), factual evidence, particularly ethnographic evidence, must be presented to prove interference with community life, areas or sites of particular significance, or disturbance to any land or waters. This is necessary for the native title parties’ objections to applications for ‘expedited procedures’ to succeed. Tribunal Members observe that Native Title Representative Bodies acting on behalf of native title parties objecting to the expedited procedure developed a ‘set piece manoeuvre’; that is, their submissions are formulaic, and without much variation in content.[68]
The number of applications for ‘expedited procedures’ lodged with the NNTT creates an onerous burden on Native Title Representative Bodies.[69] It is clear that the Native Title Representative Bodies have no alternative but to respond to the avalanche of applications for expedited procedures with standardised responses, such as template affidavits of the kind that the Tribunal Members have found problematic. In this regard, for instance, Ritter writes that ‘the emphasis on specificity within successive drafts of the Guidelines in particular, makes it appear that the Future Act Unit is preoccupied with preventing Aboriginal people and their representatives from developing effective precedent documents.’[70] He cites an Aboriginal leader who made the obvious point that there is ‘a real concern that native title claimants will be denied their rights simply because ... [they] ... do not have the resources to represent their cases properly’.[71] Further, Ritter’s key argument supports the concerns of Aboriginal people involved in these matters: ‘What is determinative in the process is not the native title party objecting, but the Tribunal’s “rational” application of s 237 to the objection.’[72] It is difficult to represent legitimate Aboriginal views in an affidavit addressing s 237 because the senior witnesses authorised by tradition and custom to make public statements about areas and sites of particular significance are reticent to do so. In camera hearings may promote such evidence, but the affidavit effectively denies their right to object.
The NNTT has pointed out, in its correspondence with the authors, that,
There is a reasonable amount of scope for parties to negotiate without the ‘limitations of the NTA’. For example, once objections to the expedited procedure are lodged, the way in which the NNTT processes the objections allows generous opportunity for parties to negotiate their way out of the objection and reach agreement about the doing of the act. Parties have the flexibility to reach agreements under their own steam or can enlist NNTT assistance to reach those agreements. It can properly be asserted that the NNTT brings flexibility and adaptability to bear in administering processes under the NTA.[73]
It is likely that the Tribunal will usually find the evidence led by native title parties objecting to ‘expedited procedures’ inadequate to deny the developer’s applications. The evidence required to satisfy the Tribunal’s standards, especially when the objections concern interference with sites of particular significance, will be difficult to adduce given the prohibition, imposed by tradition on native title parties, on exposing information about sacred places to non-authorised persons.
Evidence as to other matters, such as whether the act ‘is likely to interfere with carrying on of the community or social activities’, which must be submitted in objections to ‘expedited procedure’ applications under the Guidelines, is usually of the kind dealt with by Aboriginal land council or Native Title Representative Bodies in a manner that protects Aboriginal interests from unfettered development. For instance, on areas of statutory or freehold Aboriginal land where mining or exploration is proposed, the NTRB will contract expert anthropologists or commission social impact statements so that substantial and reliable information about potential effects is properly documented and capable of being employed to inform future dealings.
The expedient administrative approach adopted under the NTA, along with the lack of resources for native title parties to respond to NTA procedures and the time limits imposed on their responses, effectively denies NTRB personnel the opportunity to protect native title interests by employing NTA procedures ostensibly for that purpose. Hence, native title parties are denied the few rights that the NTA, in order to protect the fragility of native title from the racial discrimination inherent in the Australian land tenure system, was intended to provide. One alternative to the dilemma posed by the NNTT administrative regime is discussed later in the section on agreements in the resource sector. In particular, the exemplar of innovative dealings in the avalanche of mining title applications for non-ALRA land in the Northern Territory is the Exploration Memorandum of Understanding template agreements applicable to more than 100 000 square kilometres of native title land in the Northern Land Council’s jurisdiction.[74]
Since the 1998 amendments to the NTA, Indigenous rights, interests and aspirations have been ceded only minimal recognition by the legislature. The NTA and native title at common law as it is evolving do not give Aboriginal people control over land, particularly when it is deemed that other rights and interests exist (even if only as forms of historical tenure): such rights prevail over the interests of the native titleholders. According to Strelein, the recent High Court decision in Western Australia v Ward (‘Ward’)[75] demonstrates the urgent need for ‘reform of the system so as to allow greater scope for non-litigious examination of the merits of Indigenous peoples’ claims without undue interference from historical tenures’.[76] In his minority judgement in the Ward case, the usually conservative Callinan J called ‘for a “true and unqualified” settlement of lands and money rather than the current “futile” attempt to incorporate native title rights into common law’.[77] In sum, however disingenuous Callinan’s opinion, the Ward decision reflects ‘the need for a comprehensive land claims/settlement/treaty process’ in Australia.[78]
According to the context and the relative situation of Indigenous parties, choosing whether to pursue native title outcomes through litigation or negotiated settlement can be a very delicate challenge.[79] Litigation in the current judicial climate, as demonstrated by the decision by the High Court in Ward, may not be an effective means by which to achieve beneficial outcomes for Indigenous people. In that case, the Court’s attempt to clarify the content of native title was inimical to Indigenous interests and their ability to garner political leverage from the simple fact of native title discovered at common law. According to Pearson:
The High Court incorrectly, and with the consent of the Aboriginal parties appearing before it, treated native title as a creature of the Native Title Act rather than understanding that this legislation was never intended to change the concept of native title at common law.[80]
Similarly, a delicate balance exists between choosing to settle native title applications through the mechanism of consent determinations and opting for a broader regional framework of agreements that specify and elaborate the substance of the native title recognition as more broadly defined governance rights. Of the 22 consent determinations made prior to November 2001, Paul Sheiner writes that
all but two of the determinations have been made in respect of unallocated crown land, reserved land or land already held by, or for the benefit of Aboriginal and Torres Strait Islander people ... Consent determinations made over land subject to other types of tenure have largely resulted in non-native title outcomes.[81]
While the consent determinations have to some extent acknowledged the complexity and specificity of the individual claims to native title, Sheiner notes that
in terms of content, the consent determinations are fairly unremarkable, representing legal conclusions as to the existence and the extent of native title on the basis of accepted facts.[82]
However, even in determinations involving relatively uncomplicated issues, the negotiation process leading to a determination has been exceedingly slow. In Wik v Queensland (‘Wik’),[83] Drummond J makes several comments regarding the length of time taken to reach agreement between the various interest groups. He notes that, in September 1994, the Tribunal commenced mediation on the Wik claim.[84] It was not until late-1999 that a partial resolution by agreement of the claim was achievable. This claim has been heard in two parts. The first claim involved the Wik people and eight respondent parties. The subject of the claim was land that had always been unallocated Crown land or that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples. No section of the land in Part A was subject to pastoral or mining titles. The other claim, Part B, which is yet to be determined, involves a total of 23 parties and contains land held under seven pastoral and four mining titles. Part A deals only with the simplest part of the Wik claim, yet it has taken six years to achieve this limited result. Drummond J notes that the practicability of negotiation is called into serious question when relatively uncomplicated issues like those before the Court in Part A take so long to be brought to an agreed result.
In his paper examining the trend towards consent determinations and the implications for the native title process, Sheiner writes that:
The fresh policies of new State governments have no doubt contributed to some of the more recent consent determinations. The identification of common law holders of native title in a just and efficient manner is now properly perceived to be in the interests of the broader community, and arguably there is a tacit acceptance that in relation to native title claims the honour of the Crown is at stake.[85]
However, Sheiner concludes his examination of these determinations on a note of apprehension:
The Native Title Act 1993 and the subsequent Native Title Amendment Act 1998 have ... contributed to the ‘settling’ of native title law ... These statutory inroads into native title, a common law concept which itself has inherent limitations, set the parameters for consent determinations. Given these parameters, the expenditure of considerable resources by government and interest groups contesting the existence of native title may hardly seem worthwhile ... Native title is, on one view, a legal strategy designed to achieve a greater level of self-determination for Aboriginal and Torres Strait Islander people. As the common law develops and governments and the legal system begin to manage native title, the capacity of native title to be an effective vehicle for such self-determination may be diminishing.[86]
Sheiner[87] discusses attempts by native title representative bodies and other Indigenous groups in Western Australia and South Australia, which, recognising the limitations inherent in a determination of native title, have agitated for more broadly-targeted framework agreements at both a state and regional level. ‘Such agreements could involve a process for the making of consent determinations, but would not be limited to the settlement of narrowly defined “land rights”’.[88] Yet in a least one case in Western Australia, government negotiations pursuant to a framework agreement ‘were stopped because the State decided to focus on the more limited outcome of a consent determination’.[89] However, despite his apprehension about the inherent limitations of consent determinations, Sheiner submits that
the role consent determinations can play in ensuring that claims still before the Federal Court, most of which were lodged over five years ago, are resolved in a single generation should be acknowledged. Mabo (No.2) and the NTA have raised expectations amongst Aboriginal people that the process they have embarked upon by lodging their native title claim will deliver a satisfactory outcome. Native Title representative bodies bear the weight of that expectation. In the absence of a State-wide approach by representative bodies, many claim groups, given the choice, may continue to take an incremental approach to self-determination. They may accept an exclusive possession determination as a form of guarantee that, in the future, there right to speak for country will not be questioned.[90]
As many commentators have noted, creative alternatives to engaging solely in a native title determination process do exist. Commercial agreements in the lucrative resource sector, state and regional framework agreements relating to service delivery, and a comprehensive agreement-making approach negotiated as a result of rights conferred by the beneficial effects of Mabo (No 2) and subsequently, the NTA, are increasingly important in the political and legal landscape of agreement making in Australia. This chequered board of agreement-making processes and preferences is further examined below.
According to the President of the NNTT, Graeme Neate, the confidence with which parties are now embracing the emerging culture of agreement making under the NTA is preferable to an imposed determination. This is the case for two reasons. Firstly, agreement making saves all parties time and money; secondly, and most important, the agreement-making process can itself facilitate sound relationships.[91] Neate argues that by utilising the various schemes under the NTA that are aimed at resolving native title applications by agreement, an application for a determination of native title can lead to a creative range of other agreements that enable competing interests to be accommodated quite specifically and set out the ways in which the land will be used and managed in conjunction with other interests.[92] The Act expressly provides for agreement making about:
A pertinent example of an agreement-making scheme is the Indigenous Land Use Agreement (‘ILUA’) provisions in the NTA. Agreements can be made under the terms of the NTA. The ILUA provisions replace the agreement-making process in s 21 of the unamended Act (which lacked statutory protection for agreements once they were made) and provide for legally binding negotiated agreements made voluntarily between people who hold, or claim to hold, native title and other people who have, or wish to gain, an interest in the area in question.[94] Once it has been successfully negotiated, and after the procedural hurdles stipulated under the Act have been satisfied, an ILUA is registered as a statutory agreement under the NTA and is enforceable as a contract. In some circumstances, parties have agreed on an alternative framework external to the NTA procedures for negotiating such an agreement, and upon conclusion of the negotiations, sought to have the contract registered under the NTA. Native title parties are contractually bound and can be sued for any breach.
ILUAs are particularly useful when
In 2001, the NNTT was in the process of assisting 110 separate ILUA negotiations. By October 2002, there were 54 ILUAs registered in Australia. These agreements covered a range of subject matter:[96] access (6), consultation protocol (4), development (6), extinguishment (4), government (5), infrastructure (20), and mining (21)[97]. Many such native title claims, especially in Queensland (where 32 of the 54 ILUAs were registered), are proceeding through mediation to consent determination. The ILUAs in these instances form part of the package of documents that formalise the resolution of native title determination applications. Alternatively, ILUAs may be ‘stand alone’ agreements which deal with native title issues independent of the native title determination process.[98]
In September 1998, an audit conducted by the NNTT found that there were, at the time, 1349 agreements struck by native title parties nationwide. According to the Tribunal, this outcome was indicative of a developing culture of mediation and negotiation.[99] Of these agreements, 257 related to native title determination applications while a further 1092 were future act related agreements. These native title determination application agreements ranged from consent determinations of native title to intra-indigenous agreements over boundaries of native title applications. The audit data establishes that the number of agreements reached rose significantly each year, and according to the Tribunal, this was because the parties were developing an understanding of the native title and agreement-making process, building relationships of trust and appreciated the importance of progressing in mediation, as opposed to litigating an outcome.[100] We make no claims about the content and outcomes of those agreements other than to observe their increase in popularity, and the growth in the use of the NTA procedures by native title parties.
An important trend in the landscape is the increasing number of agreements that focus on comprehensive or regional issues or arrangements. Such agreements establish frameworks for agreement-making and tend toward promoting
the systematic involvement of Indigenous people in land and resource management and planning; and to develop greater Indigenous control over economic and social matters, including service delivery.[101]
Case studies carried out for a Regional Agreements Project led by Edmunds[102] demonstrate the extent of differences across the various regions in Australia and the difficulties associated with attempting a national overview of the processes involved in regional agreement making.[103] However, Edmunds does identify a range of commonalities and factors indicative of successful regional agreements and discusses ‘the key issues which need to be taken into account within the particular circumstances of particular regions or situations and applied as required’.[104] The report provides a set of principles for regional agreements made both within and outside the NTA:
In 2002, approaches to formulating regional framework agreements are being developed across the country in both a formal and informal capacity. Existing structures and frameworks — including the NTA and the right to negotiate procedures; State and Territory heritage and land rights legislation; ATSIC regional structures and regional autonomy initiatives; service delivery by government and within the Indigenous sector; the Indigenous Land Corporation; and management arrangements in National Parks and Indigenous Protected Areas — are being targeted as part of local and regional strategies aiming to carve out a place for Indigenous people in the regional polity and economy and to better facilitate effective governance structures.[106] In some instances, the processes put in place by an application for native title are now diversifying as Indigenous communities pursue an incremental capacity-building approach to local Indigenous governance structures, while at the same time engaging in strategic agreements with outside agencies and the private sector.[107]
In the Top End of the Northern Territory, a combination of the opportunities created by the legal and political leverage conferred by the ALRA and the NTA is creating new regional social and economic opportunities for a variety of Indigenous groups. Innovative agreements now being implemented by a number of Indigenous organisations across the region aim to ensure that the benefits afforded to Indigenous people by project-specific agreements are part of a broader process of regional economic, social, cultural and political development.
An agreement the Alice Springs to Darwin Railway between Aboriginal people and the Northern Territory government has significant implications for regional development. The railway would cover 1410 kilometres and includes many different groups of native title parties and many different land tenures. As the native title parties in the Top End region of the Northern Territory desired, the agreement was negotiated under s 21 of the old NTA and not as an ILUA. The agreement provides for the following:
Compensation for the acquisition of native rights, and a range of community benefited to the value of $7 million ... [According to the wishes of the native title parties] the Larrakia people have received an area of land for the construction of a cultural centre, Kungarakan and Warai people have gained control of certain sacred sites and Wagaman have gained joint management of Umbrawarra Gorge, whilst other groups have elected for a distribution of benefits.[108]
The railway project agreement package also contains provisions that oblige the business consortium developing the railway to finance the Northern and Central Land Councils to facilitate employment and training on the railway. The agreement also binds the consortium to providing construction jobs for suitably qualified Indigenous people. As part of the integration of the Land Council development infrastructure with commercial opportunities arising from infrastructure projects, the regional development and investment corporations established by the Northern and Central Land Council, Centrecorp and the Northern Australian Aboriginal Development Corporation are implementing employment and training strategies for the railway. Project Officers dedicated to maximising Indigenous participation in various employment activities, such as site clearance, track-laying, sleeper production and construction camp and catering services, have been employed. To ensure that employment opportunities continue, the NLC has now developed a database of Indigenous people available to work in locations across the Top End. While employment and training provisions are common in both large and small scale agreements, the implementation of these provisions is usually haphazard. The employment database will be used as a tool and reference point when negotiating other local and regional agreements and developing consequent employment and training strategies. It will also allow the land council and other Indigenous bodies to identify people available in the local region to take up any of the employment and training benefits that may flow from an agreement.
Another important regional development in the Northern Territory is the emerging culture of agreement making involving the Larrakia, the traditional owners of the Darwin region. In December 2000, 23 years after the lodgement of the Kenbi Land Claim, Land Commissioner Gray J recommended that the Cox Peninsula, across the harbour from the city of Darwin, be handed back to the Larrakia Traditional Owners. Since 1994, the Larrakia have lodged a series of native title applications relating to the Darwin region. In October 2002, the Federal Court began to hear one of the applications concerning vacant crown land in the Darwin area. The increasing legal recognition of the Larrakia’s traditional interest in land in the Darwin region and on the Cox Peninsula has forced both the Northern Territory Government and the private sector, for legal and political expedience, to proceed with negotiations and agreement making with the Larrakia.
In 1999, the Larrakia signed a landmark native title agreement with Phillips Oil Company Australia over the commercial development of a liquefied natural gas (‘LNG’) plant at Wickam Point in Darwin Harbour. The NNTT had in 1998 approved the compulsory acquisition of native title rights and interests for the construction of the LNG plant.[109] Nevertheless, the US-based company recognised the long-term benefits of making an agreement with native title parties and the ensuing agreement offers Larrakia employment opportunities, environmental and site protection safeguards and other benefits.[110] A native title application lodged in 1994 over East Arm Port,[111] also in Darwin Harbour, was settled prior to hearing in 2001. The Northern Territory Government agreed to grant the Larrakia land in the Port region to be developed for industrial purposes. In return, the Larrakia have resolved all native title issues by discontinuing their application, although they retain the right to pursue a compensation claim regarding the Port at a later time.[112]
Also in 2001, a native title agreement was reached between the Larrakia people and the Northern Territory government over the Darla development in the Rosebery/Bellamack area of Darwin’s satellite city, Palmerston. The $24 million development project involves a five year construction of residential lots in the new Palmerston subdivision of Darla. Under the terms of the agreement, the Northern Territory government has sold 50 hectares of Crown lease land to the Larrakia nation. The Larrakia have undertaken to develop this land into approximately 325 residential lots, for later sale. The profits will be held in a tax-exempt trust and will be used first to retire the debt; the remainder is to be reinvested in training, education and other enterprises for the benefit of all Larrakia.[113] Through an agreement with the prime contactor, the construction and landscaping phase of the development will also provide Larrakia people with significant training and employment opportunities.[114]
The agreement secured by the Larrakia with the Northern Territory government in relation to the Alice Springs to Darwin corridor relinquishes Larrakia native title rights in the corridor in exchange for land, including a one-hectare block at Bullocky Point — near the Museum and Art Gallery of the Northern Territory, on Darwin’s waterfront. The Larrakia will use the land for the construction of $6 million dollar cultural centre to showcase Larrakia history, culture and attachment to their traditional land. The centre will also provide employment for Larrakia people.
While internal disputes over group membership and family rights continue to plague Larrakia community relations, the majority of families are represented by an umbrella organisation, the Larrakia Nation Aboriginal Corporation (‘LNAC’), which was established in 1997. As well as engaging in native title and land claim negotiations, the Larrakia are successfully making agreements and pursuing activities relating to the Commonwealth’s CDEP scheme. The scheme involves training and employment in horticulture; the documentation of local history; art and culture production and sales; and the repatriation of Aboriginal remains from museums.[115] The Larrakia Nation carries out a consultation and advisory role for the local education, health and community services sector and is closely involved in the education and regional strategy component of the Northern Territory government’s Itinerant Project, which addresses the issues facing Indigenous ‘itinerants’ visiting Darwin from remote communities.[116] To create better economic and employment prospects for their members, the LNAC aims to establish partnerships with local business and community groups, providing in particular community consultations, tours and landscaping.[117]
Although the Larrakia have arguably suffered greater dispossession of their land and lifestyle than Aboriginal people in some of the more remote areas of the Northern Territory, belated recognition of their rights through both the ALRA and opportunities conferred by the recognition of native title rights at common law and the subsequent NTA legislation have meant that the Larrakia have now been able to negotiate a significant financial stake in many of the lucrative commercial developments occurring on Crown land within the Darwin region. At the same time, the growing involvement of the Larrakia people in regional economic and political life is promoting both Larrakia community development initiatives and broader community recognition of and respect for the rights and responsibilities of Darwin’s traditional owners.
Aboriginal people in the Northern Territory own approximately 80 per cent of the total Northern Territory coastline. At present, the legal status of Indigenous rights to water resources and their use, whether marine, estuarine or across the intertidal zone, is unclear, and subject to the outcome of common law appeals.[118] In one such appeal, the Croker Island test case, the High Court[119] has already found that native title interests in the sea are neither exclusive nor commercial. Indigenous groups across the Top End of the Northern Territory and in other areas of Australia continue to agitate for greater legal and political recognition of their sea/ marine resource rights. Land Rights News lists the concerns of Indigenous groups, as expressed at a conference on Indigenous sea and marine resource rights:
The inadequate legal recognition of Indigenous sea and marine resource rights is, however, being offset to some degree by an array of agreements relating to fishing, pearling, crabbing and aquaculture that are now being struck and negotiated, particularly as a result of native title, between traditional owners and commercial interests, in relation to seas abutting Aboriginal land in the Northern Territory. These agreements, along with a series of constructive negotiations with government departments and other marine user groups, are setting a practical precedent regarding the need for non-Indigenous interests to consider the jurisdiction of Aboriginal groups in the seas.[121] It is an incremental process of relationship building and agreement making that could have long-term policy implications for the management of seas and other waterways in the Northern Territory and elsewhere in Australia.
The recognition of native title at common law and the subsequent native title legislation confer on Indigenous people in Australia a significant, if varied, opportunity to negotiate with resource companies over the access and use of their lands. Resource companies operating in Australia, have, since the mid 1990s, and under the influence of native title law, begun to adopt an active policy of seeking agreements with Indigenous people. Corporations such as Comalco, a signatory to the Western Cape Communities Co-Existence Agreement in Cape York, are readily prepared to treat with Aboriginal nations, noting in their agreements their ancient identities: the Wik, the Thaayorre, the Alngith, and many others. These corporations acknowledge that pre-existing Aboriginal polities exist as a profound reality in our political and economic landscape. Such agreements are evidence of a willingness among some present day private corporations to do what the colonial governments were, by and large, unable to countenance — that is, to acknowledge that another group of people were the owners and custodians of the lands and waters of Australia; and that their descendants have a right to possess, use and enjoy those lands and waters, and within the limits of Australian law, to govern their use and access by others, and to reap from that use or access any benefits that would accrue to any other group of people in rightful possession.
Resource companies such as Rio Tinto now seek as a matter of policy to ground their new agreements in a strategy for establishing long-term relationships with traditional owners and communities on whose land they operate. They pursue this policy of building relationships with communities as a means of managing risk. Poor communications, social unrest and civil protest can all close down mines, as the disputes over Jabiluka in the Kakadu region and in Bougainville in Papua New Guinea have recently proved.
A 2001 report by ISS and ACIL Consulting examining recent developments in agreement making between mining companies and Indigenous communities found that the previous five years had seen a surge in agreements of this sort. The report considers this to be a result of a range of factors:
The report is based on an examination of around 140 agreements, most of which were concluded after 1994. The agreements cover areas such as such mining, infrastructure, exploration and heritage protection. The most common types of provisions relate to payments and compensation; employment, education or training; contracting with or establishing Aboriginal businesses; environmental management; community assistance; and cross cultural programs. The report holds that many of the recent agreements have also included statements that the company will not oppose applications for a determination of native title by Indigenous groups party to the agreement, although there is in most cases no legal requirement for them to make this undertaking.[123]
Most of these agreements are bilateral ones involving mining companies and Indigenous communities. However, particularly since the 1998 amendments to the NTA and the introduction of ILUA provisions, an increasing number of agreements are either supported or ratified by State governments.[124] The report also notes a trend towards State and regional approaches to agreement making, ranging from the use of model native title or ILUA process agreements by State and Territory governments, to a various other model exploration and mining agreements and protocols negotiated between companies and Indigenous parties and reached outside the NTA.[125] More recently, Indigenous representative bodies and major resource companies have been investigating innovative approaches to vary the legal effect of Native Title legislation through the use of model ILUAs. This has the benefit of fast-tracking exploration projects through the use of template agreements that provide mutual benefits to signatories and avoiding the slow and expensive process of objections and arbitration.
In the Northern Territory, the former Country Liberal Party government refused to process exploration licence applications over non-Aboriginal land for a four-year period from 1996 (following the Wik decision). In 2000, following the Federal Senate’s rejection of the Northern Territory’s proposed alternative to the s 43A right to negotiate provisions of the NTA, the Northern Territory Government released en masse a backlog of around 1000 mining title applications for non-ALRA land.[126] In order to find an efficient way to process this backlog within the right to negotiate timeframes set out by the NTA, the NLC and a number of major mining companies have now signed Exploration Memorandum of Understanding template agreements applicable to more than 100 000 square kilometres of native title land in the Land Council’s jurisdiction.[127] According to the NLC:
The template agreements provide for protection of sacred sites and cultural areas; protection for the environment; consultation with traditional owners; compensation in the form of benefits regarding exploration; and parameters for any future mining agreement should exploration prove successful ... Under this process, native title holders retain the right to negotiate agreements outside the template parameters if they so desire.[128]
Similarly, the Kimberley Region Native Title and Heritage Protection Memorandum of Understanding (‘MoU’)[129] is a protocol for agreements between Traditional Owners in the Kimberley and seven resource development companies. The MoU provides an alternative procedure to the future act provisions of the Native Title Act 1993 (Cth) and satisfies the requirements of the Aboriginal Heritage Act 1972 (Western Australia). It sets out protocosl for liaison, cultural and heritage protection, provision for community benefits, and training and employment opportunities in connection with exploration access agreements across the Kimberley region.
A significant body of literature on mineral development agreements deals with the various approaches to negotiating agreements and the range and type of provisions they include.[130] On the basis of an examination of five resource development agreements negotiated in the early 1990s (ie, prior to the NTA) between mining companies and Aboriginal communities, O’Faircheallaigh cautions that there is
a clear distinction between agreements which are negotiated in relation to Aboriginal land and within a legislative framework that requires developers to seek Aboriginal consent to mining, and those which are not. Where consent must be sought, agreements tend to incorporate substantial benefits of Aboriginal communities, especially in the key areas of royalty and other forms of economic benefit and of control over environment and heritage issues ... Legislative recognition of indigenous land rights in a form which provides indigenous Australians with some form of statutory control over mineral development is crucial in allowing them to achieve substantial benefits from mining. Reliance on the cooperation and goodwill of companies, or governments, does not offer an adequate alternative.[131]
However, the potential impact of policy-based agreements should not be underestimated. Such agreements are now a feature of the agreement-making landscape in the resource sector. In regions in which mining companies have operated for decades with little or no recognition of local Indigenous rights and interests in the land, renegotiated agreements that now recognise Indigenous rights and interests in the area can have profound ramifications at the community level. Indigenous people speak of the dignity that this recognition brings to their sense of self and community; this is the first step in a long process that Langton has termed ‘the politics of recovery’.[132] It is a process in which agreements such as the Western Cape Communities Co-Existence Agreement (‘WCCCA’), which was concluded after five years of negotiations between Comalco and the Indigenous parties, overcome only the first of many hurdles when the agreement is signed. Implementation of the agreement remains the substantive task. Nevertheless, project-specific local agreements can have quite broad regional impacts, even in the short term. The process of agreement making — especially in the increasing instances in which State government is involved in the negotiations as an observer or third party — facilitates other negotiations and sets in place processes that can lead to other agreements beneficial to Indigenous people in a region. For instance, a flow-on benefit of the WCCCA has been a substantial effort by the Queensland government to overhaul the curriculum and administration of Western Cape schools. The government’s aim is to make the education system better able to meet the needs of Indigenous communities and to ensure that there are Indigenous school leavers capable of taking up the employment opportunities arising from the WCCCA.
Indigenous involvement in joint management agreements in Australian national parks is an evolving phenomenon that can offer Indigenous groups a degree of managerial control, employment and cultural recognition. The level of Indigenous involvement provided for in joint management agreements varies greatly across Australia and ranges from advisory roles to controlling managerial roles. While the lease agreements enabling the jointly-managed Uluru Kata Tjuta and Kakadu National Parks are well documented in the literature,[133] another emerging area of significance in the agreement-making arena is the Commonwealth Indigenous Protected Area Program (‘IPA’). Through this program, Indigenous landowners are supported by Natural Heritage Trust Funding to manage their lands either as independent bodies or through co-management agreements. As of June 2002, there were 30 Indigenous Protected Area projects: 15 were officially declared, 11 were under co-management arrangements, and three or four have interim funding. Agreements are made by the Policy and Coordination section of Environment Australia and Indigenous communities, Land Councils and other Indigenous bodies. They take the form of contractual one year Financial Assistance Agreements. However, the security and viability of IPAs lies in the establishment of long term land-use agreements. Environment Australia is exploring the possibility of introducing a mechanism under which IPAs will eventually be the subject of Ministerial Conservation Agreements under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). IPAs are an important and progressive new model of conservation management of Indigenous lands; they give traditional land owners direct control over the environmental care of their estates. However, IPAs and other Landcare projects offer only short term funding contracts, so Indigenous land management organisations must constantly seek ongoing and additional sources of funding.
Indigenous organisations across Australia are now seeking ways to establish formally funded methods of land and biodiversity management that will assist Indigenous economic development and help to realise aspirations for making a living off country (whether registered as part of the National Estate or not). The fact of achieving rights in land through the NTA or other State and Territory land rights regimes does not automatically mean that landowners will have access to resources to manage and from which to benefit. Agreement making with other parties is important in ensuring that the Indigenous signatories can make a living off country.
In response to the Convention on Biological Diversity (1992), which Australia ratified in 1993, the Australian government produced the National Strategy for the Conservation of Australia’s Biological Diversity.[134] This National Strategy recommends a framework in which governments, industry, community groups and individual land owners work cooperatively to ‘bridge the gap between current efforts and the effective identification, conservation and management of Australia’s biological diversity’.[135] The National Strategy also advocates the development and use of collaborative agreements that would recognise existing intellectual property rights and establish a royalty payments system in line with relevant international standards relating to traditional resource rights. Recent draft regulations pertaining to s 301 of the EPBC Act, which draw on the National Strategy, would implement a system of mandatory benefit-sharing agreements. Although the draft regulations do not propose the recognition of Indigenous intellectual property rights over biological resources, Gray[136] notes that they will, if brought into effect:
require a party seeking access to biological resources in Commonwealth areas to apply for an access permit from the Minister for the Environment. In the process they must negotiate a benefit-sharing contract with the ‘access provider’, which will include indigenous land-owners or holders. The Minister must be satisfied that the benefit-sharing agreement provides for reasonable benefit-sharing arrangements, including protection for and recognition of any indigenous knowledge given by the access provider. The Minister must also be satisfied that informed consent was given to the benefit-sharing agreement, including particularly whether the time for negotiations, the information given and the negotiations themselves were adequate.[137]
Once enacted, these regulations could become an important precursor to a national approach to collaborative agreements that would recognise the resource and intellectual property rights of Indigenous land owners across Australia.
While there has been Indigenous participation in the tourism industry in Australia since at least the 1900s, prior to the 1960s, Aboriginal people were on the fringes of tourism development and it was usually non-Indigenous people who dictated the way in which Aboriginal people participated in the industry. The introduction of the ALRA in the 1970s gave some traditional owners in the Northern Territory a degree of control over the management and development of tourism on their lands (see above). In the 1990s, an array of national, state, territory and regional Indigenous tourism strategies, coupled with the emergence of Indigenous tourism representative bodies, placed Indigenous tourism development firmly on the political agenda. By the early 1990s, most states had some Indigenous tourism enterprises operating. Agreements have ensued between Indigenous groups and others in a variety of tourism contexts. These include joint ventures and employment and training initiatives concerned with tourism enterprise developments such as hotels, local cultural and heritage centres, cultural and nature-based tourism and the provision of interpretive services to regional tourism initiatives. [138]
In 1999, Pitcher et al observed that joint ventures ‘between Indigenous and non-indigenous partners are becoming more common and may help Indigenous people overcome some of the problems associated with the development of Indigenous enterprises.’ [139]
Their report, Choice and Control: The Development of Indigenous Tourism in Australia[140] listed a number of then recently established tourism joint ventures: Nitmiluk tours (jointly owned by the Jawoyn Association and Travel North); a joint venture between Argyle Diamonds and the Gidja people of Warmun Creek to establish a cultural centre; and the Geiki Gorge Boat Tours (jointly run by the Western Australian Department of Conservation and Land Management (‘CALM’) and the Darlngunaya Aboriginal Corporation).
Joint ventures were seen as a way of rationalising the problems inherent in tourism development by small groups of Aboriginal traditional owners. Landowners could rely on tourism operators to provide marketing expertise, coordination, and business management skills. For their part, the non-Aboriginal operators stressed the amount of time and resources they invested in the negotiation of such agreements and treated these as an investment cost. According to Liam Mayer, executive officer of the Djabiluka Aboriginal Association in the Kakadu region:
The power that the Aboriginal traditional owners have is access to the land, access to the site ... [joint ventures can provide] operators that know the market place, know what marketing is all about, how to get people here, how to satisfy them ... Indigenous tourism, from our experience with helping people set up tours, is to try to complement the existing tourism industry, don’t try to stand alone.[141]
Aboriginal aspirations to land management and small-scale enterprise such as tourism form a complex of issues that rest on Aboriginal priorities for caring for country and the ability of land use enterprises to meet the economic needs of Aboriginal communities without unduly compromising their social and cultural obligations. Within the Aboriginal domain, caring for country is a matter of caring for and addressing issues relating to both people and land.
In 1998 the Commonwealth Government held a Senate Inquiry into the commercial utilisation of Australian native wildlife. The NLC submission to this Inquiry stated that, ‘working with wildlife has a particular appeal for Indigenous people which perhaps no other job opportunities (and there are indeed very few) in remote areas can match’.[142]
The Inquiry noted in its report that:
Aboriginal people in general supported the concept of commercial utilisation of native wildlife and their involvement in it. It was seen by many as an appropriate activity with economic, cultural and social benefits. There are already a variety of projects involving Aboriginal people in the commercial utilisation of wildlife. Payments to Aboriginal people for the use of wildlife on their land is also an increasing trend in northern Australia. Examples include crocodile egg ranching, barramundi fishing and buffalo shooting. Aboriginal people are also involved in the farming of crocodiles and emus. Tourism enterprises are of increasing importance to Aboriginal people and interest has also been expressed in the safari hunting of native animals (currently prohibited).[143]
There is significant Indigenous interest in fishing and hunting tourism in the Northern Territory.[144] These activities include developing safari hunting and sport fishing tourism on Aboriginal land. Access to Aboriginal land for safari hunting operations and land-based sport fishing operations is negotiated through the Aboriginal Land Councils under the s 19 of the ALRA. The distribution and management of royalty payments from tourism are significant small-scale economic engagements for Aboriginal communities. Moreover, employment created by these land use agreements provides opportunities for land owners to work in remote traditional land estates whilst also spending time caring for country, increasing their knowledge and strengthening individual relationships with their country. Small-scale tourism activities such as sport fishing and safaris are important in the increasing economic engagement of Aboriginal groups with the ‘outside’ world. Licensing arrangements or joint ventures with non-Indigenous operators are also a means of increasing local Aboriginal participation, and economic and political influence as stakeholders in these industries.
While some Aboriginal groups are now boosting their participation in niche tourism industries, these small-scale projects offer only small gains in terms of economic growth and employment in Aboriginal communities. It is better to incorporate them into a ‘mixed use rural enterprise’ approach[145] to maximise their role in economic development and meeting community needs.
Agreement making, Aboriginal and Torres Strait Islander flag-raising ceremonies, welcomes to country, acknowledgement of traditional owners and Indigenous community consultation on local culture and heritage matters are now becoming more than isolated events in the Australian local government landscape. According to the Australia Local Government Association:
Resolutions for advancing reconciliation with Aboriginal and Torres Strait Islander people, giving greater recognition to their citizenship rights and developing agreements between Aboriginal and Torres Strait Islander people and local Councils to work together toward common goals, have been carried out at most General Assemblies of Local Government since 1994.[146]
In Townsville in 1991, the Townsville City Council, the Local Government Community Services Association and the Australian Local Government Association (‘ALGA’) jointly convened the ‘Let’s Work Together Conference’. The participants at the conference recognised the need to improve relations between Indigenous people and local Councils and acknowledged the poor level of services accessed by Aboriginal and Torres Strait Islander people.[147] This resulted in the establishment of the ALGA National Aboriginal and Torres Strait Islander Reference Group, and a submission from ALGA to the Commonwealth government seeking funding for a range of initiatives, including the employment of Indigenous Policy Officers located in each of the State and Territory Local Government Associations and at ALGA. The Commonwealth agreed to provide funding, and for six to eight years, the initiatives were funded by an arrangement between ATSIC, the Federal Department of Employment and the then fledgling Commonwealth Office of Local Government. The task of the Indigenous Policy Officers was to foster better relations between local Councils and local Indigenous communities, to encourage local Councils to employ Aboriginal and Torres Strait Islander people and to deliver local services in culturally appropriate ways.[148] In many cases, the work carried out by these Indigenous Policy Officers was complemented by alliances formed with the Council for Reconciliation facilitators based in each State and Territory, whose task it was to establish local reconciliation circles. Many of the local agreements and reconciliation statements can be directly attributed to the work of the Aboriginal Policy Officers and the Council for Reconciliation facilitators.[149] In 1998, ALGA published a local government information guide, Working out Agreements,[150] followed in 1999 by a package of information titled Working with Native Title.[151] In addition to making agreements, some local governments have made reconciliation grants for local projects, increased participation in NAIDOC[152] and apologised to the ‘Stolen Generation’.[153]
The local Council agreements range from simple statements of reconciliation and commitment to quite detailed accords, or memorandums of understanding, with detailed action plans. Thus far, from around the country, we have identified about 70 local council agreements or statements of reconciliation or commitment.[154] Five of these pertain specifically to native title issues. The scope of matters covered in such agreements includes understanding country, improving relationships, valuing cultures, sharing history and providing better access to services.[155] While these agreements are political rather than legally binding agreements (unless they pertain to native title and are registered under the NTA), the local, regional and federal significance of formalising relationships between the Indigenous and non-Indigenous community at the local level should not be underestimated: especially because local government tends to be conservative and parochial in its policy orientation. The main drivers of these agreements are often the efforts of one or two committed individuals such as a local mayor or other councillor or senior officer who takes on the role of engendering community support for the making and implementation of an agreement.[156] The initial emphasis has been on making general statements of commitment aimed at building stronger links and relations between Indigenous communities and local Councils, but some agreements have been quite specific in their commitments and actions. Some have also involved Indigenous Australians directly in the processes of local governance, including the delivery of targeted services.[157] The latter often arises from specific issues (such as a long-running dispute or poor relations between the Council and local Indigenous people) and the desire of the local community to overcome these issues for the sake of a more harmonious community.[158]
As it has become clearer that native title at common law and under statute is just one of many tools that Indigenous people can employ to achieve their community and land aspirations and goals, a strategy focussed on pursuing regional agreements and self-government is re-emerging.[159] This process of engaging in comprehensive agreement making involves economic and political strategies that aspire to the recognition of an autonomous Indigenous jurisdiction, and to varied extents, self-government.
A promising trend can be found in the new legal and political relationships being established between Indigenous peoples and all levels of government. In May 2000, the Final Report of the Council for Aboriginal Reconciliation recommended that the Council of Australian Governments (‘COAG’) agree to implement and monitor a national framework of partnership arrangements between Aboriginal and Torres Strait Islander people and communities, all governments, and ATSIC. It was anticipated that these agreements would cooperatively set measurable programme performance benchmarks and allow better coordination of the design and delivery of programmes and services to Indigenous communities. In November 2000, COAG agreed to implement a reconciliation framework focussing on ‘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.’[160] Related projects at the state and regional level include the Cape York Justice Study; Cape York Partnerships; the Families First initiative in NSW; Aboriginal Justice Initiatives in SA, Victoria, NSW and Queensland; Community Action Groups initiative in Western Australia; and Commonwealth community participation initiatives focused on strengthening community governance arrangements, leadership capacity and community participation and cohesion.[161] In September 2002, Tony Abbot, the Federal Minister for Employment and Workplace Relations, announced a pilot scheme to assign troubled Aboriginal communities to a specific Federal Government department for its exclusive attention. In a speech entitled ‘Grass Roots Capitalism’ made at the Corporate Leaders for Indigenous Employment Conference, 25 September 2002, Abbot stated that:
Rather than a range of government departments all hyper-actively pursuing their own portfolio initiatives, the Federal Government will give specific departments lead agency status for programmes in Aboriginal communities in designated parts of Australia ... Cape York is one of ten regions selected to pilot this initiative. On the Cape, the Department of Employment and Workplace Relations will be the lead agency with the Secretary of the Department responsible for ensuring that Federal programmes complement each other and the communities they are supposed to serve.
As Aboriginal people know, ... that the segmented service delivery unavoidable in a complex pluralist society can easily miss its target in small communities without much social capital. In Cape York, the Employment Secretary will have authority to co-ordinate federal resources and manpower according to local needs and to make operating guidelines suit communities rather than the other way round.
An important breakthrough has been the co-operation of State Governments. In Cape York, the Federal Employment Secretary’s State lead agency counterpart will be the head of the Queensland Department of Aboriginal and Torres Strait Islander Policy.[162]
By engaging Indigenous people in decisions affecting the delivery of health, employment and education services and involving them in other areas of community life, these framework agreements and other initiatives go some way towards recognising the ‘de facto sovereignty’ of Indigenous people, although this is still a long way from self government arrangements enjoyed by Indigenous peoples in Canada and the United States.[163] Many government-sponsored framework agreements, such as those in the area of health, while legally binding, are essentially ‘process agreements’. That is, they generally bind parties to certain processes rather than to substantive requirements. They are not binding in relation to resource allocation.[164] However, the significance of these agreements is that they are being made because of a de facto recognition of the need to make agreements on a ‘government to government’ basis, creating an environment in which it is increasingly plausible to talk about possibilities for a treaty in Australia.[165] As has occurred in other settler states, a modern day treaty process could enshrine the recognition of Indigenous polities in the nation’s Constitution.
In lieu of a treaty recognising Indigenous sovereignty, Australia Indigenous groups continue to push the boundaries of existing agreement-making frameworks and structures to build effective Indigenous governance and economic systems — native title is just one such tool.[166] In South Australia, the Aboriginal Land Rights Movement (‘ALRM’) and the State government are involved in negotiations over a state-wide ILUA.[167] There are currently three pilot projects in SA that are being used to assess and discuss the state-wide ILUA process. Parry Agius[168] of the ALRM refers to these pilot projects as the ‘Substantive Issues Development Phase’. It is an initiative that focuses on the importance of ‘process’ in the recognition of rights and on incremental advances toward goals.
In Western Australia, a ‘Statement of Commitment to a New and Just Relationship between the Government of Western Australia and Aboriginal Western Australians’ was signed in October 2001.[169] This Statement of Commitment recognises that ‘Aboriginal people and their culture are a unique and valuable part of our State’ and that ‘Aboriginal people have continuing rights and responsibilities as the first people of Western Australia’. It formalises the ‘principles and process for parties to negotiate a State-wide framework that can facilitate negotiated agreements at the local and regional level’ in order to ‘enhance negotiated outcomes that protect and respect the inherent rights of Aboriginal people and to significantly improve the health, education, living standards, and wealth of Aboriginal people’. The principles of the agreement include ‘a commitment to improved governance, capacity building and economic independence’. The framework agreement will ensure that regional and local agreements will be negotiated ‘according to the priorities of Aboriginal people in partnership with other stakeholders’ and ‘will be based on shared responsibility and accountability of outcomes’. The parties to this agreement are the government of Western Australia and the Western Australian ATSIC State Council, supported by the following Aboriginal Peak Bodies: the Western Australian Aboriginal Native Title Working Group; the Western Australian Aboriginal Community Controlled Health Organisation; and the Aboriginal Legal Service of Western Australia. This agreement is an example of an emerging style of Australian agreement making that allows the recognition of native title and self-government from the grass roots up.
Regardless of the legal and political recognition, or impediments to the recognition, of Indigenous rights, agreement making is an important process through which people build relationships and carry forward the public recognition of Indigenous rights. For example, according to Morse,[170] a broad range of agreements exists in Canada today, including comprehensive land claim settlements, some of which include self government agreements; impact benefit agreements, which are similar to ILUAs in Australia; interim management agreements; consultation agreements; local service agreements; and many other types. Some are legally enforceable; others are not. The Canadian Constitution protects some; the status of others is unsure. Some agreements are based on building long-term relationships; others involve only short-term singular projects. However, Morse argues that what the totality of these agreements demonstrate is that Indigenous people are now engaging with others across the public and private spectrum in a manner that has now become a normal part of business in Canada. It is an outcome that demonstrates that ‘the unthinkable can in fact become commonplace.’[171]
Similarly, in Australia, agreement making with Indigenous people is slowly becoming commonplace. It is an unavoidable part of the Australian political and economic landscape. Of course, when agreements that benefit Indigenous groups are first reached in a region unaccustomed to the recognition of Indigenous rights, there is often initial community resentment. This is especially so when that recognition is seen to impinge upon the freedom of activities in the daily lives of the non-Indigenous community, which, for example, may now require permits to visit previously unrestricted fishing areas. Yet if managed properly, these changes can soon become an ordinary fact of daily life, and in many cases, such as when newly recognised regimes of Indigenous land management involve the sharing of historical and cultural information or the establishment of an interpretative cultural centre, these changes can be an enriching experience for the wider community.
Relationship building itself, constituted as it is in the forging of formal and informal political relationships between Indigenous people, government and the private sector, is an important element of the network of mechanisms involved in the agreement making process. These mechanisms breed ongoing commitments to negotiations rather than final solutions.
Many legal shortcomings and difficulties surround the recognition of substantive native title. They continue to confront courts, Indigenous groups and others negotiating the recognition of Indigenous rights in the Australian jurisdictions.[172] Despite these difficulties, the emerging culture of agreement making in Australia has led to the establishment of principles and rules for managing the relationship between native title, public law and private rights. It has created a corpus of experience and negotiation practices. The agreement-making process provides its own momentum and establishes communities of interest among parties who are engaged in the negotiations. Although they may have entered the process under the duress of native title procedures, parties often make considerable commitments to the ensuing negotiations, which creates relationships between the parties that, once established, assist in creating processes by which agreement making becomes a part of everyday business.[173]
Indigenous people and their organisations across Australia are increasingly focussed on strategies that help to build effective governance structures and which could lead to the legal and practical recognition of Aboriginal civil polities. These are the social entities that are implied by the groups identifiers used in native title claims: for instance, the Wik, Alngith, and Thaayorre peoples.[174] Thus, at a regional level, area and project-specific agreement making is now being incorporated into the wider economic, social, cultural and political context of developing Indigenous governance structures. Agreement making is becoming part of a multi-pronged approach under which loosely amalgamated regional Indigenous social entities and their representative bodies are strategically combining strong policy and advocacy positions on the legal advancement of Indigenous rights and economic opportunities. Opportunistic negotiations and relationship building are both triggered by, and further develop, emerging legal, political and economic opportunities and agreements. Agreement making can be used as an interim measure to provide Indigenous people a role in the management and use of their traditional lands whilst they pursue land purchases, grants of secure forms of land title, and, where necessary, the legal recognition of native title.
Agreement making emerges from our historical analysis as an instrument of governance within and between Aboriginal polities and the nation state. It has developed as a surrogate instrument of engagement and governance in a context of denial of Aboriginal self-government. That is, in a settler nation state that coincides with a number of Aboriginal polities with their own customary law regimes, agreement making has evolved as a means of engaging rationally in dealings in land access and use, resource distribution and governance. Increasingly, sectors of federal, State and local government are engaging with Indigenous groups and, through the use of agreement-making tools such as framework agreements and statements of commitment, are treating with Indigenous people as partners. These agreements are forging a new approach to governmental and Indigenous affairs that, to varying degrees, gives Indigenous people a real decision-making role in a range of issues affecting their lives and their country. It is an area of policy engagement that encompasses the hard, rather than soft, edges of a meaningful reconciliation process.
As already discussed, the Australian Constitution provides no recognition of the existence of the Aboriginal polities that govern these jurisdictions. It is only in legislation — such as the NTA, and to some extent, land rights statutes, such as the Pitjantjatjara Land Rights Act 1981 (SA) — that there is a lower level of recognition of these polities in order to provide statutory regimes for dealings between resource extractors and the Aboriginal landowning corporations or entities. However, the evolving nature of agreements between Indigenous groups and others raises a number of highly contentious legal, political and constitutional issues in Australia. The right to negotiate, a limited and prescribed statutory right under the NTA, serves as the trigger for a series of governance procedures that, in sum, are an inferior substitute for the rights of self-government found in Canada and United States.
Nevertheless, these developments in agreement making are likely to contribute to efforts to improve the disadvantaged status of Aboriginal people. Langton notes that the worsening levels of disadvantage combined with rapid Aboriginal population increase require a substantial response:
Urgent efforts are required to prevent the impending social disaster that will result as the Aboriginal population increases markedly and the inadequate service provision to Aboriginal people continues at present rates. Economic reform is the key area of policy and program delivery that would avert the intensity of the social crisis that must result from what is essentially underdevelopment. A new deal, encompassing radical economic reform in the Aboriginal sector, would also revitalize the rural and remote areas where Aboriginal populations constitute significant majorities. That area is significant, and much of it is under various forms of title owned by Aboriginal trusts and corporations, as traditional land, various commercial leases, pastoral leases, national parks and freehold.[175]
As Indigenous people engage in agreement making in Australia, the parties with which they engage, particularly governments, are constructing by default the terms and conditions of such a ‘new deal’. Because negotiated agreements involve Indigenous peoples as consensual parties, rather than as ‘stakeholders’, the terms and conditions of their agreements are the building blocks of arrangements that are inherently more just than the imposed administrative solutions to which Aboriginal people had so long been subjected. Moreover, these arrangements supersede the formal denial of Aboriginal group rights of the Constitution, and in so much of Australian settler culture, and recognise Aboriginal polities as an integral part of the ongoing nation building dialectic.
[1] This paper draws on research carried out as part of an Australian Research Council Linkage Project, ‘Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: Their Role and Relevance for Indigenous and Other Australians’. In addition to the present authors, the project involves researchers from our industry partner, the Aboriginal and Torres Strait Islander Commission, from The University of Melbourne — Ms Maureen Tehan (Faculty of Law) — and The University of Technology, Sydney — Professor Larissa Behrendt (Faculty of Law and the Jumbunna Indigenous House of Learning). The Australian Institute of Aboriginal and Torres Strait Islander Studies has also supported the research.
Neither of the authors of this paper is legally trained. The examination of the issues raised in this paper is based on a social scientific method of inquiry rather than legal analysis. The authors wish to thank the following people for their comments on the paper: Ms Maureen Tehan, various members and staff of the National Native Title Tribunal, Mr Ed Wensing, Mr Noel Pearson and Professor Nancy Williams. All errors and omissions remain the responsibility of the authors.
[2] Chair of Australian Indigenous Studies, The University of Melbourne.
[3] Postdoctoral Research Fellow, The University of Melbourne.
[4] Barkan E The Guilt of Nations: Restitution and Negotiating Historical Injustices W.W. Norton & Company New York 2000.
[5] ibid at xxvi. Barkan refers to restitution ‘comprehensively to include the entire spectrum of attempts to rectify historical injustices’: at xix. Restitution ‘is thus not only a legal category but also a cultural concept’: ibid.
[6] ibid at 318, 320, 322, 347.
[7] O’Fairchaellaigh C 'Mining Agreements in Australia: Outcomes for Indigenous Parties' Seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements, The Other Frontier Seminar Series 2002, Institute of Post Colonial Studies, North Melbourne, 22 August 2002.
[8] ibid.
[9] The Ranger Agreement under s. 44 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was signed by the Minister for Aboriginal Affairs, the Hon Ian Viner, and Mr Galarrwuy Yunupingu, Chairman of the Northern Land Council, on behalf of the traditional owners. The Kakadu National Park Memorandum of Lease was signed by Professor Derek Ovington, Director of the Australian National Parks and Wildlife Service, on behalf of the Commonwealth government, and three members of the Kakadu Aboriginal Land Trust, on behalf of the traditional owners.
[10] For instance, Pitjantjatjara Land Rights Act 1981(South Australia), Maralinga Tjaratja Land Rights Act 1984 (South Australia), Aboriginal Land Rights Act 1984 (New South Wales), Aboriginal Land Act 1991(Queensland), Torres Strait Islander Land Act 1991 (Queensland), Aboriginal Lands Trust Act 1969 (South Australia), Aboriginal Lands Act 1970 (Victoria).
[11] Neate G ‘Agreement making after Western Australia v Ward and Wilson v Anderson: where to from here?’, paper delivered at the Native Title Conference 2002, Outcomes and Possibilities, Geraldton, WA, 4 September, 12.
[12] Edmunds M (ed) Regional Agreements: Key Issues in Australia, Volume 2, Case Studies Native Title Research Unit, AIATSIS Canberra 1998 at 1.
[13] ibid.
[14] ibid.
[15] ibid at 1-2.
[16] Clarke G ‘ATSIC’s Role in the Treaty Process’, paper presented at the AIATSIS Seminar Series Limits and Possibilities of a Treaty Process in Australia 2 April 2002. Online: http://www.aiatsis.gov.au/rsrch/smnrs/papers/clarke.htm Accessed: 02-10-11.
[17] ibid at 6.
[18] Dodson M ‘An Australian Indigenous Treaty—Issues of Concern’, paper presented at the AIATSIS Seminar Series, Limits and Possibilities of a Treaty Process in Australia, 20 March 2001. Online: http://www.aiatsis.gov.au/rsrch/smnrs/papers/dodson.htm Accessed: 02-10-11
[19] McGlade H ‘Treaty-making and reform of race discrimination law in Australia’, seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 18 April 2002. Online: http://www.indigenous.unimelb.edu.au/atns/papers/Mcglade2002seminar.PDF Accessed 02-10-14
[20] Behrendt L ‘Foundations and Lessons: The Canadian Treaty Making Experience’ paper presented at the AIATSIS Seminar Series Limits and Possibilities of a Treaty Process in Australia 7 May 2001. Online: http://www.aiatsis.gov.au/rsrch/smnrs/papers/behrendt.htm Accessed: 02-10-11
[21] ibid at 11.
[22] Pearson N ‘Some thoughts about strategy leading to a national settlement in Australia’ seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 9 May 2002
[23] Ah Mat R ‘The Cape York View’ Treaty Conference Murdoch University Perth 26-28 June 2002. Online: http://www.treaty.murdoch.edu.au/Conference%20Papers/ah%20mat%20speech.htm Accessed: 02-10-11
[24] ibid at 11.
[25] ibid.
[26] Mansell M ‘A Treaty as a Final Settlement’ Treaty Conference Murdoch University Perth 26-28 June 2002. Online: http://www.treaty.murdoch.edu.au/Conference%20Papers/Michael%20Mansell.htm Accessed: 02-10-11
[27] ibid at 4.
[28] Goldsmith JL & Posner EA ‘Understanding the Resemblance Between Modern and Traditional Customary International Law’ (2000) 4 Virginia Journal of International Law at 639-672.
[29] see Langton M & Palmer L ‘Treaties and agreements as instruments of order in and between civil societies: A rational choice approach’ paper presented at the ATSIC National Treaty Conference Canberra 27-29 August 2002. Online: http://www.treatynow.org/conference.asp Accessed: 02-10-12.
[30] ibid.
[31] Martinez MA Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations, First Progress Report submitted by Mr Miguel Alfonso Martinez Special Rapporteur to the Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities Forty-fourth session August 25 1992. Online: http://www.indigenous.unimelb.edu.au/atns/papers/Mcglade2002seminar.PDF Accessed: 02-10-11
[32] ibid at para 333. However, particularly when agreements are of a purely commercial nature and are conducted without the approval or ratification of the State, an agreement may be considered merely a contract (ibid at para 335).
[33] cf. Cornell S ‘The Harvard Project Findings on Good Governance’, Speaking Truth to Power III, Self Government: Options and Opportunities, March 14-15, BC Treaty Commission, Vancouver, July 2002. Online: http://www.bctreaty.net/files/Truth%20III%20book.pdf Accessed: 02-10-11.
[34] Bartlett R ‘Canada: Indigenous Land Claims and Settlements’ in Keon-Cohen (ed) Native Title in the New Millennium: A selection of papers from the Native title Representative Bodies Legal Conference 16-20 April Melbourne Aboriginal Studies Press and Native Title Research Unit, AIATSIS 2001; Dorsett S & Godden L ‘The contractual status of Indigenous Land Use Agreements’ Land, Rights, Laws: Issues in Native Title 2 (1) Native Title Research Unit, AIATSIS Canberra September 1999; Ivanitz M ‘The Emperor has No Clothes: Canadian Comprehensive Claims and their Relevance to Australia’ Regional Agreements Issues Paper No. 4 Native Title Research Unit, AIATSIS Canberra 1997; Langton M ‘Dominion and Dishonour: A Treaty Between Our Nations’ (2001) 4 (1) Postcolonial Studies at 13-26.
[35] Kingsbury B ‘First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO model of International Civil Society’ (2002) 3 (1) Spring Chicago Journal of International Law at 183-195.
[36] ibid at 189-190.
[37] Mantziaris C & Martin D Native Title Corporations: A legal and anthropological analysis The Federation Press Sydney 2000 at 90-91.
[38] Levy R ‘The Recognition and Protection of Traditional Interests Under the Native Title Act 1993’ unpublished paper by Ron Levy Principal Legal Office Northern Land Council 2001 at 1.
[39] The ALRA recognises and provides mechanisms to administer and protect both traditional owners’ and others’ interests in land held by persons or groups not recognised as traditional owners.
[40] Similar governance issues have arisen as a result of tensions between traditional land owners and governance structures recognised under the Aboriginal Land Rights Act 1984 (NSW).
[41] cf. Langton M ‘Ancient Jurisdictions, Aboriginal Polities and Sovereignty’ Indigenous Governance Conference Canberra 3-5 April 2002 Online: http://www.reconciliationaustralia.org/textonly/info/publications/governance/speeches.html Accessed: 02-10-15; Nettheim G, Meyers G & Craig D Indigenous Peoples and Governance Structures: A comparative analysis of land and resource management rights Aboriginal Studies Press, AIATSIS Canberra 2002.
[42] Strelein L ‘Native Title in Law and Practice’, seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 12 September 2002.
[43] Cornell S & Kalt JP ‘Sovereignty and Nation Building: The Development Challenge in Indian Country Today’ n.d. at 1. Online http://www.ksg.harvard.edu/hpaied/docs/CornellKalt%20Sov-NB.pdf Accessed 02-09-22.
[44] ibid at 28-32.
[45] Taylor R ‘Towards More Effective Governance for Australian Indigenous Organisations – Values Contracts for Boards’ paper presented at the Native Title Conference 2002, Outcomes and Possibilities Geraldton WA September 2002 at 2.
[46] ibid at 7.
[47] ibid.
[48] ibid at 8.
[49] Neate G ‘Native Title Ten years On: Getting on with the job or sitting on the fence?’ paper delivered to Native Title Update Forum National Farmers’ Federation Carnarvon WA 21 May 2002 at 48. Online: http://www.nntt.gov.au/metacard/speeches.html Accessed: 02-10-20
[50] Australian Government Solicitor Native Title: Legislation with Commentary by the Australian Government Solicitor 2nd ed. Australian Government Solicitor Canberra 1998 at 37.
[51] O’Fairchaellaigh op. cit.
[52] ibid.
[53] Such as cultural heritage matters protected under existing state heritage legislation.
[54] O’Fairchaellaigh op. cit.
[55] Pers. Comm. National Native Title Tribunal 6 February 2003 ‘Comments to the paper, Modern agreement making in Australia: Issues and Trends, Draft, 2 December 2002’.
[56] Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report 2001 Human Rights and Equal Opportunity Commission Sydney 2002 at 4. Online: http://www.humanrights.gov.au/social_justice/ntreport_01/index.html Accessed 03-02-11
[57] Pers. Comm. National Native Title Tribunal 6 February 2003 ‘Comments to the paper, Modern agreement making in Australia: Issues and Trends, Draft, 2 December 2002’. See also NNTT ‘Smooth transition to Commonwealth’s right to negotiate scheme is assured, says Tribunal President’ Media Release 28 November, 2002. Online: http://www.nntt.gov.au/media/1038467643_2272.html Accessed: 03-02-07.
[58] Aboriginal and Torres Strait Islander Social Justice Commissioner op. cit. at 14-15. As the Aboriginal and Torres Strait Islander Commissioner observes:
Exceptions to the right to negotiate provided for in the NTA include:
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. (ibid at 14-15)
[59] National Native Title Tribunal ‘Smooth transition to Commonwealth’s right to negotiate scheme is assured, says Tribunal President’ Media Release 28 November, 2002. Online:http://www.nntt.gov.au/media/1038467643_2272.html). Accessed: 03-02-07.
[60] Aboriginal and Torres Strait Islander Social Justice Commissioner op. cit. at 15.
[61] Bartlett R ‘Dispossession by the National Native Title Tribunal’ (1996) 26 Western Australian Law Review; Aboriginal and Torres Strait Islander Social Justice Commissioner op. cit.; Ritter D ‘A Sick Institution? Diagnosing the Future Act Unit of the National Native Title Tribunal’ (2002) 7 (2) Australian Indigenous Law Reporter at 1-11.
[62] Bartlett op. cit. at 108.
[63] Ritter op. cit. at 4.
[64] ibid at 5.
[65] McIntyre G, Ritter D & Sheiner P ‘Administrative Avalanche: The Application of the Registration Test under the Native Title Act 1993 (Cth)’ (1999) 4 (20) Indigenous Law Bulletin at 8-11.
[66] Aboriginal and Torres Strait Islander Social Justice Commissioner op.cit. at 15.
[67] Ward v Western Australia [1996] FCA 993; (1997) 141 ALR 753; Dann v Western Australia [1997] FCA 332; (1997) 144 ALR 1.
[68] Pers. Comm. Discussion with Tribunal members following receipt of correspondence, ‘Comments to the paper ‘Modern Agreement Making in Australia: issues and trends’, draft dated 2 December 2002’.
[69] Ritter op. cit.
[70] ibid at 5.
[71] ibid at 6.
[72] ibid.
[73] Pers. Comm. National Native Title Tribunal ‘Comments to the paper ‘Modern Agreement Making in Australia: issues and trends’, draft dated 2 December 2002’ at 2.
[74] Northern Land Council ‘MOUs smooth explorers’ path in the Top End’ Media Release 5 June 2002.
[75] [2002] HCA 28, (28 August 2002).
[76] Strelein L ‘Western Australia v Ward on behalf of Miriuwung Gajerrong, High Court of Australia, 8 August 2002: Summary of Judgement’ Land, Rights, Laws: Issues of Native Title 2 (17) Native Title Research Unit, AIATSIS Canberra August 2002 at 11.http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/IPv2n17.pdf Accessed: 02-10-11
[77] ibid.
[78] ibid.
[79] cf. Atkinson W ‘Mediating the Mindset of Opposition: The Yorta Yorta Case’ (2002) 5 (15) Indigenous Law Bulletin; Neate ‘Native Title Ten years On: Getting on with the job or sitting on the fence?’, op. cit.
[80] Pearson N ‘Native Title’s Days in the Sun are Over’ The Age 28 August 2002.
[81] Sheiner P ‘The Beginning of Certainty: Consent Determinations of Native Title’ Land, Rights, Laws: Issues of Native Title 2 (12) Native Title Research Unit, AIATSIS Canberra November 2001 at 2. Online: http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/IPv2n12.pdf Accessed: 02-10-11
[82] ibid at 6.
[83] Tribunal No.QC94/3.
[84] Tribunal No.QC94/3.
[85] Sheiner op. cit. at 4-5.
[86] ibid at 5-7.
[87] ibid.
[88] ibid at 7.
[89] ibid.
[90] ibid at 7.
[91] Neate G ‘Agreement making and the Native Title Act’, seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 2 May 2002.
[92] ibid.
[93] Neate G ‘Agreement making after Western Australia v Ward and Wilson v Anderson: where to from here?’ op. cit.
[94] Wade R ‘Indigenous Land Use Agreements: their role and scope’ paper presented at Negotiating Country Native Title Forum Brisbane 1-3 August 2001.
[95] ibid at 3.
[96] An ILUA can be about more than one subject matter.
[97] NNTT website: http://www.nntt.gov.au/ilua/browse_ilua.html Accessed: 02-10-19.
[98] Neate G ‘President’s Overview’ in the National Native Title Tribunal Annual Report 2000-2001 NNTT Perth 2001 at1-34.
[99] National Native Title Tribunal Native Title: A five year retrospective 1994-1998 NNTT Perth 1999 at15.
[100] ibid at 17.
[101] Edmunds M (ed) Regional Agreements: Key Issues in Australia, Volume 1, Summaries Native Title Research Unit, AIATSIS Canberra 1998 at 7.
[102] ibid; Edmunds Regional Agreements: Key Issues in Australia, Volume 2, op. cit.
[103] Research carried out prior to the 1998 amendments of the NTA and the consequent ILUA provisions.
[104] Edmunds Regional Agreements: Key Issues in Australia, Volume 1, op. cit. at 18
[105] ibid at 7.
[106] Strelein ‘Native Title in Law and Practice’, op. cit.
[107] ibid. See, for example, the Aboriginal and Torres Strait Islander Social Justice Commissioner’s case study of the Yenbena Indigenous Training Centre, which was established by the Yorta Yorta Nation Aboriginal Corporation in Victoria: in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 Human Rights and Equal Opportunity Commission Sydney 2002 at 91-97. Online http://www.humanrights.gov.au/social_justice/sjreport_01/chapter3.html#yen Accessed 02-09-20
[108] Northern Land Council Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into Indigenous Land Use Agreements July 2001 at 8.
[109] Northern Territory/Bill Risk on behalf of the Larrakia People and Tibby Quall on behalf of the Danggalaba Clan/Phillips Oil company Australia, NNTT WF97/1, Prof. D. Williamson, QC, 29 September 1998. See also National Native Title Tribunal ‘Way Cleared for Wickam Point Project’ Media Release 2 October 1998.
[110] Northern Land Council ‘Landmark Native Title Agreement’ Media Release 18 November 1999.
[111] Tribunal File No. DC94/5.
[112] Northern Land Council Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, op. cit. According to the NLC, this would be after a decision is made as to whether native title exists in the Darwin region: ibid. The Federal Court is now hearing this Larrakia native title claim over the Darwin region.
[113] Land Rights News ‘Larrakia Set for $24m Urban Development Project’ (2002) 4 (2) at 3.
[114] ibid.
[115] National Museum of Australia ‘Largest Ever Return of Aboriginal Remains’ Media Release 9 August 2002.
[116] Land Rights News ‘Itinerants project up and running’, (2002) 4 (2) at 20.
[117] Larrakia Nation Aboriginal Corporation website: http://www.larrakia.com.future.html Accessed 02-10-08.
[118] See also http://www.nlc.org.au/nlcweb/land_and_sea_rights/documents/03_page_sea_rights.html. Accessed 02-11-11. In 2002 in Northern Territory of Australia v Justice Olney [2002] FCAFC 280; (2002) 192 ALR 116 the Full Federal Court upheld a recommendation by Olney J that a grant under the ALRA be made over the inter tidal zone.
[119] The Commonwealth v Yamirr, Yamirr v Northern Territory [2001] HCA 56 at 308
[120] Land Rights News ‘Action stepped up on sea rights’ (2001) 3 (6) at 16.
[121] ibid.
[122] Indigenous Support Services (ISS) & ACIL Consulting Agreements between Mining Companies and Indigenous Communities A Report to the Australian Minerals and Energy Environment Foundation December 2001 at 18.
[123] ibid at 17.
[124] ibid.
[125] ibid. Such as the Kimberley (1999) and Goldfields (1998) agreements in Western Australia.
[126] Northern Land Council Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, op. cit.
[127] Northern Land Council ‘MOUs smooth explorers’ path in the Top End’ Media Release 5 June 2002.
[128] ibid.
[129] Kimberley Region Native Title and Heritage Protection Memorandum of Understanding 1999.
[130] Altman J Aborigines and Mineral Royalties in the Northern Territory AIAS Canberra 1983; O’Faircheallaigh C Mineral development agreement negotiated by Aboriginal communities in the 1990s Discussion paper No. 85/1995 CAEPR, ANU Canberra 1995, ‘Negotiating with resource companies: Issues and constraints for Aboriginal communities in Australia’ in R Howitt, J Connell and P Hirsch (eds) Resources, Nations and Indigenous Peoples Oxford University Press Melbourne 1996, ‘Process, politics and regional agreements’ Regional Agreements Issues Paper No. 5 Native Title Research Unit, AIATSIS Canberra February 1998, Negotiating Major Project Agreements: The ‘Cape York Model’ Research Discussion Paper No. 11 AIATSIS Canberra 1999; Finlayson JD The Right to Negotiate and the Miner’s Right: A case study of native title future act processes in Queensland CAEPR Discussion Paper No. 139, Australian National University Canberra 1997; Keon-Cohen B (ed) Native Title in the New Millennium: A Selection of Papers from the Native Title representative Bodies Legal Conference 16-20 April 2000: Melbourne, Victoria Aboriginal Studies Press, Native Title Research Unit, AIATSIS Canberra 2001; Senior C ‘The Yandicoogina Process: A Model for Negotiating Land Use Agreements’ Regional Agreements Issues Paper No. 6, Native Title Research Unit, AIATSIS Canberra 1998.
[131] O’Faircheallaigh Mineral development agreement negotiated by Aboriginal communities in the 1990s, op. cit. at 17-18.
[132] Langton M ‘A New Deal? Indigenous development and the politics of recovery’ Dr Charles Perkins Memorial Oration University of Sydney 4 October 2002.
[133] See for example Woenne-Green S, Johnston R, Sultan R & Wallis A Competing Interests: Aboriginal Participation in National Parks and Conservation Reserves in Australia Australian Conservation Foundation Melbourne 1994.
[134] Commonwealth Of Australia National Strategy for the Conservation of Australia’s Biological Diversity, Department of the Environment, Sport and Territories, Canberra 1996. Online: http://www.ea.gov.au/biodiversity/publications/strategy/ Accessed: 02-10-11
[135] ibid at 6.
[136] Gray S ‘S. 301 EPBC Act 1999 (Cth) and indigenous resources’ unpublished briefing note, July 2002.
[137] ibid at 1.
[138] Pitcher M, van Oosterzee P & Palmer L ‘Choice and Control’: The Development of Indigenous Tourism in Australia CINCRM and CRC Tourism Darwin 1999.
[139] ibid at 18.
[140] ibid.
[141] Pers. comm. Liam Mayer 11 March 1998.
[142] Northern Land Council Submission to the Senate Inquiry on the Commercial Utilisation of Australian Native Wildlife June 1998 1997.
[143] Commonwealth of Australia Senate Inquiry on the Commercial Utilisation of Australian Native Wildlife June 1998 Parliament of the Commonwealth of Australia, Canberra 1998 at xxxiv.
[144] Palmer L Indigenous Interests in Fishing and Hunting Tourism in the Northern Territory CRC Tourism Gold Coast 2000.
[145] As recommended by the Aboriginal and Torres Strait Islander Commission & The Department of Primary Industries and Energy Aboriginal and Torres Strait Islander Rural Industry Strategy, Commonwealth of Australia Canberra 1997 at 33.
[146] Ross C ‘Address by the Australian Local Government Association’ ATSIC National Treaty Conference, Canberra 27-29 August 2002 at 1. Online: http://www.treatynow.org/conference.asp Accessed: 02-10-15
[147] Pritchard J ‘ALGA Work in Indigenous Affairs’ unpublished paper 2001.
[148] The money for these programmes ran out in the late 1990s after a decision by the newly-elected Howard Government to cease funding in 1996/97.
[149] Pers. Comm. Edward Wensing 26 September 2002.
[150] Australian Local Government Association & Aboriginal and Torres Strait Islander Commission Working Out Agreements Between Local Government and Indigenous Australians: A Practical Guide 1st ed. ALGA Canberra 1998.
[151] Australian Local Government Association, National Native Title Tribunal, Aboriginal and Torres Strait Islander Commission & Attorney-Generals Department Working with Native Title: Linking native title and council processes 1st ed. ALGA Canberra 1999.
[152] National Aboriginal Islander Day Observance Committee
[153] Pritchard op. cit.
[154] There are over 690 local Councils spread throughout most of Australia.
[155] Ross op.cit. at 7.
[156] Pers. Comm. Edward Wensing 26 September 2002.
[157] See Ross op. cit.
[158] Pers. Comm. Edward Wensing 26 September 2002.
[159] Strelein ‘Native Title in Law and Practice’, op. cit.
[160] Council of Australian Governments (COAG), 2001 Meeting Communiqué, 8 June 2001 at 5. Online: http://www.ncc.gov.au/pdf/OINcpReCo-002.pdf Accessed: 02-10-11
[161] Department of Prime Minister and Cabinet COAG Reconciliation Framework: Report on Progress in 2001 n.d. Online: http://www.dpmc.gov.au/docs/reconciliation_framework.cfm Accessed: 02-10-11
[162] Abbot T ‘Grassroots Capitalism’ Corporate Leaders for Indigenous Employment Conference, 25 September 2002 at 4. Online: http://www.tonyabbott.com.au/speech/grassroots.html. Accessed 02-10-11
[163] Cornell & Kalt op. cit.
[164] Anderson I ‘Agreement making within a Federation: Aboriginal health and intergovernmental relations’ Seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements, The Other Frontier Seminar Series 2002, Institute of Post Colonial Studies, North Melbourne, 1 August 2002.
[165] Strelein ‘Native Title in Law and Practice’, op. cit.
[166] ibid.
[167] Agius P, Howitt R & Davies J ‘Treaty-making and the South Australian vision’ Seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements, The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 15 August 2002. See also Agius P, Howitt R & Davies J ‘Negotiating Comprehensive settlements of Native Title Issues: Building a New Scale of Justice in South Australia’ Land, Rights, Laws: Issues of Native Title 2 (20) Native Title Research Unit, AIATSIS Canberra December 2002. Online: http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/IP20v2.pdf Accessed 03-02-12
[168] Agius P ‘Challenges of negotiating a state-wide agreement’ Paper presented at Negotiating Country, Native Title Forum Brisbane 1-3 August 2001.
[169] Online: http://www.aad.wa.gov.au/Downloads/pdfs/statementofcommitmentfinal11.pdf Accessed: 02-10-11.
[170] Morse B ‘The Continuing Significance of Historic Treaties and Modern Treaty-Making: A Canadian and United States Perspective’, seminar presented in Negotiating Settlements: Indigenous peoples, settler states and the significance of treaties and agreements The Other Frontier Seminar Series 2002 Institute of Post Colonial Studies North Melbourne 22 July 2002.
[171] ibid.
[172] See Ward on behalf of Miriuwung Gajerrong v Western Australia (8 August 2002) HCA.
[173] Scholz C ‘Land claims; a negotiated option’ paper presented at the AIATSIS Seminar Series Limits and Possibilities of a Treaty Process in Australia August 27 2001. Online: http://www.aiatsis.gov.au/rsrch/smnrs/papers/scholz.pdf Accessed: 02-10-11
[174] The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] High Court of Australia (23 December 1996).
[175] Langton ‘A New Deal? Indigenous development and the politics of recovery’, op. cit. at 18.
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