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by Johanna Sutherland[1]
ATSIC and the Coalition of Aboriginal Organisations involved in the native title negotiations have warmly endorsed Federal Cabinet's commitments of October 18. Indigenous dissidents have been few. Several major industry organisations and a majority of state premiers are now moderately supportive. So the risk of a fracturing of the reconciliation process is unlikely to reappear during the life of this government, provided that the deals woven do not unravel in the Senate, and provided that the foreshadowed national social justice package, and the details of the Bill, meet reasonable expectations.
But does the Bill match international and domestic aspirations for self-determination for indigenous peoples involved in natural and cultural resource management and usage on their traditional lands, waterways and seas?
At this stage one cannot draw definitive conclusions as the Bill has yet to be seen, and the public announcements following the Cabinet meetings are sketchy. Certainly some major gains for ATSI peoples have been made, but the aspirations most seriously challenged during the late negotiation process, such as the co-existence of native title with pastoral leases, demonstrate the challenges for the continuing reconciliation process.
This comment will briefly reflect on the commitments made by the Federal Government at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro last year 1 and on the mountain of official pronouncements on ecologically sustainable development (ESD) and other government strategies relevant to ATSI peoples.
Major benefits for native title holders include a choice of forum, the possibility of converting pastoral leases to 'native title', native title continuing under mining leases, extended negotiating rights, just terms compensation and funding for prescribed ATSI organisations. The key issues to be developed in the social justice package by ATSIC, such as the national land acquisition fund, a resource rent equivalent scheme and the development of local, regional and national land-management agreements may make greater advances toward economic, social and political self-determination for ATSI peoples.
Some of the UNCED instruments are merely moral and normative statements and are not strictly legally binding on Australia, but there are monitoring arrangements being developed through the new Commission on Sustainable Development. Principle 22 of the Rio Declaration on Environment and Development calls on states to support indigenous peoples identity, culture, interests, traditional knowledge and practices, and to enable their effective participation towards sustainable development.
In Chapter 26 of UNCED's Agenda 21:
The chapter also lists a range of possible activities such as treaty ratification, law reform, and international co-ordination. The objectives regarding respect for traditional knowledge and sustainable cultural practices are also reflected in regional agreements in the South Pacific 2 and in the Australian ratified, now effective International Convention on Biological Diversity.
The Australian-endorsed UNCED Statement of Forests Principles 3 recognises that indigenous peoples should have an economic and cultural stake in sustainable forest use, and reach adequate levels of livelihood and well-being through means such as land tenure arrangements. The role of women, in particular, should be actively promoted.
The Convention on Conservation of Nature in the South Pacific (the Apia Convention) which came into effect when Australia ratified in March 1990 4 allows contracting parties to make provision for customary use of areas and species in national parks and national reserves in accordance with traditional customary practices. The South Pacific Declaration on Natural Resources and the Environment which was adopted at the Conference on the Human Environment in Rarotonga, Cook Islands in 1982 declares that traditional conservation practices and technology and traditional systems of land and reef tenure adaptable for modern resource management 'shall be encouraged'. It also declared that traditional environmental knowledge would be sought and considered when the expected effects of development projects were assessed. The involvement and participation of directly affected people in the management of their resources, including the decision making process was also to be encouraged. The 1991 SPREP Ministerial Declaration on Environment and Development reaffirmed the principles espoused in the 1982 Rarotonga Declaration on the Human Environment in the South Pacific.5
The Action Plan for Managing the Natural Resources and Environment of the South Pacific Region also urged the study of traditional and marine tenure systems and their reconciliation with environmental management, especially in relation to the designation, conservation and management of reserves, and it urged the recording and revived use of traditional knowledge. The Convention on the Protection of Natural Resources and Environment of the South Pacific Region (SPREP Convention) mentions traditional practices in its preambular paragraph.
The 1992 Intergovernmental Agreement on the Environment recognises the Commonwealth responsibility for ensuring that international obligations are met. The 1992 National Strategy for Ecologically Sustainable Development states that ATSI peoples' land, heritage, economic and cultural development and employment concerns in resource allocation decisions should be focussed upon. Indigenous Australians' involvement in decision making processes, and relevant consultative arrangements are to be strengthened. In particular, governments are to, amongst other things:
Under the Federal Government's draft National Strategy for the Conservation of Australia's Biological Diversity the importance of indigenous peoples' knowledge of biological diversity is recognised and it suggests that wherever possible Aboriginal people and Tones Strait Islanders should be involved in its conservation and sustainable use.7 The National Forest Policy Statement also recognises the need to manage forests so as to recognise Aboriginal cultural and other social values, and to stimulate Aboriginal employment. 8
The Federal Government has still not responded formally- to the Australian Law Reform Commission's report on the recognition of customary law, despite promising to do so by December 1992.9 Government responses to the Royal Commission into Aboriginal Deaths in Custody Report address a number of recommendations dealing with natural and cultural resources and heritage matters 10 The National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders has governments agreeing to empower ATSI peoples regarding their culture and heritage 11, and the Council for Aboriginal Reconciliation's focus on the issues of the importance of land and sea in ATSI cultures, heritage, disadvantage, and control over destinies, amongst other key issues, is also relevant to the native title debate.
It is unclear at this stage whether the Federal legislation will operate subject to international standards. The September 2 outline merely proposed that international obligations would be referred to in the preamble to the Bill, thereby becoming an aid to interpretation in the event of ambiguity, rather than having the legislation operate subject to international law, which would be preferable 12 But international environmental and human rights standards apply beyond the small amount of land that is likely to continue to be held under native title, and it will be the social justice package primarily which will have to redress past dispossession.
One of the key features of the Cabinet decision is that ATSI people can choose the Federal Court(or Tribunal) or a recognised State body (such as a State Supreme Court) to pursue recognition of their native title.13 It is also proposed that the Commonwealth will require States and Territories to meet Commonwealth criteria before their institutions are endorsed for native title determinations.
This is in keeping with the national ESD strategy and UNCED's Agenda 21, Chapter 26 which seek to increase ATSI involvement in national dispute-resolution arrangements in relation to the settlement of land and resource management concerns.14 This had been consistently sought by indigenous negotiators and consistently opposed by states co-operating in the development of Federal legislation.
The Federal proposals support negotiation rights in relation to proposed developments on native title lands which can be adjudicated by the proposed Tribunal, having regard to listed factors. Mediators and assessors are to be involved. This is clearly empowering for ATSI peoples. Cabinet has also agreed that there will be greater recognition given to the potential value of regional and local negotiation so that nothing in the Bill prevents agreements or settlements at a regional or local level between governments, Aboriginal people and others with interests.15 This may be a positive indication that self-determination through negotiated agreements may be progressedl6 It is consistent with demands made by the Kimberley Land Councih7, Cape York Land Council, ATSIC, the greens coalition18, academics 19 and others.
However, this right to negotiate may be stringently constrained within Federal parameters, for otherwise if the agreements were to be endorsed or registered with the proposed Tribunal, they may have the force of law, like Federal industrial awards. If so, the agreements may be inconsistent with the proposals' proposed validation of State and Territory laws and regulations relating to heritage protection, environment and quarantine controls. The proposals suggest that such laws will not extinguish native title, and will be valid even if they do not provide compensation for the restriction of activities. Where such legislation prohibits certain activities, native title rights will be regulated for the duration of the prohibition, not extinguished.
It would be a large step toward self-determination if such negotiated agreements were to have the force of Federal law, despite some scepticism about regional planning to date.20 As many ATSI campaigns have demonstrated, and reviews and reports have found in recent years, existing federal, state, territory and local environmental legislation does not adequately accommodate indigenous peoples' concerns and rights. ATSI organisations do not have control over natural and cultural resource management on traditional lands. Where activities have statutory permission, royalties or royalty equivalents are rarely available. There is often little genuine negotiation about resource management and traditional owners are not necessarily involved in site protection and preservation where they wish to be so.27 Hunting, fishing and gathering regulations may be too restrictive. Cultural landscapes and totemic identification with species tend not to be recognised. World heritage areas rarely adequately recognise ATSI peoples' interests. Nor do ATSI peoples often have rights of consultation, negotiation and representation in statutory management structures. Sites on major tourist routes may not be adequately protected. Zones under environmental management legislation may not recognise indigenous cultural values, and customary land and sea domains. Rent may not be payable for tourism activities in national parks (now available in the NT), or on indigenous lands and on waterways.
So will these Federally-endorsed agreements render State laws inoperative to the extent of the inconsistency, or are the negotiating rights to be curtailed within the ambit of current inadequate laws? There has been a suggestion that hunting, fishing and gathering laws are to be reviewed within two years.
If the opportunity is seized to protect by Federal status such negotiated agreements this will facilitate the ratification of important instruments such as ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (about which consultations regarding ratification are now being held) and the proposed Universal Declaration of the Rights of Indigenous Peoples 22, since domestic laws are usually brought into line before ratification. It would also achieve many of the international standards outlined above.
It would be of considerable benefit to indigenous Australians were the Federal legislation to prevail over inconsistent state laws, where the latter do not protect indigenous interests. There are statutory precedents for non-Federal laws being allowed to continue unreformed for a set period, such as two years, with Federal legislation overriding if prescribed standards are not met.23 There are also precedents for Federal codes such as in the nuclear and occupational health areas. In the native title context, both human rights and international environmental law standards could be used as the Federal benchmark.
The resolution of the impasse over the effects of post-1975 leases on native title was secured when Federal Cabinet agreed that Aboriginal pastoral lessees whom the Tribunal determined would, but for the lease, satisfy the criteria of native title, could convert their lease to the equivalent of native title should they wish to do so.24 Where pastoral leases are validated by the government that issued them, consistent with the native title legislation, native title will either be extinguished, or will be subordinated to the lessee's rights. Industry had consistently sought extinguishment of native title over leases, with limited statutory rights available.
This is unfortunate as the sorts of claims and responsibilities which Aboriginal and Tones Strait Islander people might wish to exercise over lands granted before December 1993 include telling and demonstrating the legends, stories, songs, dances and rituals about the land as an affirmation of cultural continuity; caring for traditional camping and hunting grounds; hunting, fishing and camping on traditional lands so that cultural values can be maintained and passed on to children; engaging in 'fire-stick' land management practices; looking after sacred and important sites, cleaning the land and living on the land,25 and developing economic self-determination. These aspirations are clearly accommodated within international and domestic sustainability standards.
The Australian Law Reform Commission report on the recognition of Aboriginal customary laws concluded that it was:
‘... reasonable that Aborigines be accorded access to traditional lands for the purposes of hunting, fishing and gathering, whether these lands are unalienated Crown lands or subject to leasehold or other interests. However where interests in the land are held by persons other than the Crown, it is necessary to take account of those interests, whether by negotiated access provisions or otherwise (para 989).’26
But the potentially large increase in native title landholdings which may ensue under Cabinet's agreement to allow the conversion of some pastoral leases to native title may be consistent with ecological sustainability objectives and will enable greater economic self-determination for indigenous Australians. ATSIC's Rural Industries Advisory Committee for example, has recommended that it jointly fund a project sponsored by the Central Land Council for land assessments using the latest technologies to gather data to enable Aboriginal landowners to make planning decisions for the use of their land.27
Cabinet's agreement that the Commonwealth should press for the development of Codes of Conduct where there are reservation rights for Aboriginal people in existing leases is empowering for Aboriginal people and is a welcome attempt at developing dispute resolution mechanisms consistent with Agenda 21 Chapter 26 and the national ESD strategy.
Given also the recent commitments to heritage law reforms, the Council for Aboriginal Reconciliation may play an important role in encouraging a greater understanding in the community about this need. Its Joint Council on Aboriginal Land and Mining is to develop an agreed submission to governments on improving consultation and negotiation processes in relation to the identification and accommodation of Aboriginal traditional interests in land, and heritage protections, before developments take place. Heritage reform was also called for in the Peace Plan and by the historic Eva Valley meeting, where total security for sacred sites and heritage areas, and absolute authority over those sites for Aboriginal and Torres Strait Islander peoples was called for.
The recognition of continuing native title over forestry reservations is commendable, although logged lands may not be much to inherit. This recognition of native title partly meets the recognition of cultural values as called for in the National Forest Statement and the Statement on Forestry Principles. Hopefully the social justice strategy will address employment concerns or royalty revenue equivalents where native title is to be extinguished under current commercial forestry interests.
The provision of security for existing commercial fisheries activities and the subordination of native title rights for the duration of extensions and rights of renewal, and the affirmation of general fisheries acts and regulations overcomes a quite serious constitutional question over the validity of post Offshore Constitutional Settlement nearshore aquaculture, mariculture and general fishing interests within 3nm, and may unnecessarily pre-empt the findings of the Resource Assessment Commission's coastal zone inquiry 28 It also seems to derogate from the recommendations of the ALRC customary law report where traditional fishing was accorded priority.
Perhaps again the possibility of local and regional agreements, endorsed Federally, may exempt native title fishers from cumbersome and expensive licensing requirements and enable the development of co-operative and sustainable management agreements regionally and locally between stakeholders and indigenous organisations. The Federal Government could develop principles to negotiate with state governments for fisheries subject to off-shore constitutional agreements. Law reform could then follow regarding negotiation and management structures, conflict resolution between user groups, and sustainability requirements, consistent with the ESD Fisheries Report.
1. See report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992. A/Conf.151/26, vol. III and follow up: 'Selected Documents: UN/GA: Resolutions/Decisions on UNCED', Env6annental Policy and Law, Vol. 23, No.1,1993, pp.39-45.
2. 'South Pacific Regional Position on the Conservation of Biological Diversity', The South Pacific Regional Environment Program/United Nations Environment Program Biodiversity Convention and Conservation Programme Workshop, Port Vila - Vanuatu, 24-28 October, 1991, p.4.
3. The 'Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests'.
4. Heyward, P., 'A Review of the Institutional and Legal Framework of the South Pacific for Dealing with Environmental Issues, Discussion Paper, Environment Section, Department of Foreign Affairs and Trade, Canberra, 23 July, 1990, para 3.1. See also the new agreement establishing the SPREP organisation and program.
5. SPREP Ministerial Declaration on Environment and Development (Noumea, July 1991), p.l. See generally Heyward, P.,op.dl.
6. Commonwealth of Australia, National Strategy for Ecologically Sustainable Developrnerr6 Canberra, 1992, pp.8283. See also similar undertakings in: Commonwealth of Australia, Mato: Tim High Court Decision on Native Title: Discussion Paper, Canberra, June 1993, pp.90.91; Tickner, R., Minister for Aboriginal and Tones Strait Islander Affairs, Implementation of Co nrnammllh Governor e n Responses to lire Royal Commission into Deaths in Custody: 1992-3 Interim Report, Canberra, September, 1993, pp.193-4 regarding the work of the Council for Aboriginal Reconciliation on these issues.
7. Biological Diversity Advisory Committee, 'A National Strategy for the Conservation of Australia's Biological Diversity', no date, and now see ANZECC drafts. See generally: Commonwealth Parliament, Biodiversity: Tire Role of Protected Areas, Report of the House of Representatives Standing Committee on Environment, Recreation and the Arts, AGPS, Canberra, January 1993, pp.61-75.
8. Commonwealth, National Forest Policy Statement: A New Focus for Australia's Forests, 1992, pp5.8,24,36.
9. See Recommendation 219 of the Royal Commission into Aboriginal Damns m Custody, and Response by Governments to the Royal Commission, Aboriginal Deaths at Custody, Vol.2, ALPS, Canberra, 1992, p.836.
10. See for example recommendations 300, 315, and 316.
11. Endorsed by the Council of Australian Governments, Perth, Western Australia, 7 December 1992: national objective 32.
12. The Great Barrier Reef Marine Park Act 1975 (Cwlth) and the Endangered Species Ad 1993 (Cwlth), for example, operate subject to international law.
13. Statement by the Prime Minister, the Hon. P.J. Keating, Commonwealth Response to the High Court Mabo judgment', 18 October, 1993, p.1.
14. Commonwealth, National Strategy for Ecologically Sustainable Development, AGPS, December 1992, p.83.
15. There are examples of negotiations proceeding well between tourism companies and the traditional owners of special areas in the Great Barrier Reef Marine Park. The 'Zapopan Agreement' in the NT is cited by many as well negotiated co-existence between the NT government, miners and the Jawoyn community. Negotiations regarding mining agreements, compensation packages, and access to heritage sites are available in many jurisdictions.
16. Kimberley Land Council, The Impact of the Proposed Commonwealth Native Title Bill on Kimberley Pastoral land', typescript copy; Kimberley Land Council, 'Kimberley Land Council Position Paper on the Commonwealth's Proposed Mabo Legislation'; ATSIC. Bartlett, R., 'Native Title: The Process of Settlement', Paper presented to the Public Interest Law Conference, Uni. of Sydney Law School, August 27-29,1993.
17. Ibid.
18. Australian Conservation Foundation, Greenpeace (Australia), Wilderness Society, The Australian Greens, Australian Democrats, 'Sharing the land, Healing the Land: Native Title and Reconciliation', typescript paper, September1993.
19. Bartlett, R, 'Native Title: The Process of Settlement', op. cit; Bartlett, R., 'The Commonwealth Legislation and the Process of Settlement of Native Title: Submission to the Aboriginal and Torres Strait Islander Committee of the Government Members of Parliament', October4,1993.
20. See for example AN.D.'s North Australian Research Unit Discussion Papers Nos. 14-17 on regional planning and community development.
21. But see the interim report on RCIADIC responses, Tickner, R., op.cil, pp.35-43 regarding rural resources initiatives, natural and cultural resources management and arts, pastoral and tourism development strategies.
22. The draft Declaration includes operative paragraphs relating to the collective and individual rights of indigenous peoples to own, control, protect, rehabilitate and use their traditional territories (op. preas. 16,18). It also refers to just and fair compensation, preferably through land grants, where lands and territories have been confiscated, occupied, damaged or used without their free and informed consent (op. para. 17). Consultation, consent and compensation rights regarding large-sale projects, and particularly natural resource development or mining projects is also called for (op. para. 20). Indigenous peoples' economic, social and cultural structures, institutions and traditions, subsistence rights, and the right to engage freely in traditional and other economic activities including hunting, fishing, herding, gathering, lumbering and cultivation should also be recognised. Indigenous peoples are not to be denied their means of subsistence, but if they are, compensation should be paid (op. para.21).
23. For example, the Sax Discrimination Act 1984 (Cwlth) exempted discriminatory labour laws and regulations for prescribed periods. The Australian Bill of Rights Bit 1984, the so-called 'Evans Bill' also envisaged overriding State laws.
24. PM's Press Statement, op.cil., p.3
25. These and other responsibilities have been noted on land claim applications received by the Queensland Aboriginal Land Tribunal: Neate, G., International Environmental Law and Indigenous Peoples: Using Principles and Practices from the Past to Preserve Our Future, in International Law Section, Law Council of Australia, Recent Developments in International Environmental Law', seminar papers presented by the Public International Law Committee in co-operation with the Department of Foreign Affairs and Trade, 24-26 November 1992.
26. Australia, The Law Reform Commission, The Recognition of Aboriginal Customary Lm, Report No.31, col. 2, Australian Government Publishing Service, Canberra, pp.190.191, 225. Similar recommendations had been made earlier by a National Park Working Party.
27. Tickner, R,op.cit., pp.4243.
28. Sutherland, J. 'Human Rights, Aboriginal Maritime Culture and the Evolving Regulatory Framework for the East Coast of Queensland', Paper presented to the Australasian Law Teachers' Association 47th Annual Conference, Aborigines and the Law Interest Group, Brisbane 9-12 July, 1992.
[1] The views expressed in this paper am entirely personal and do not reflect on the views of members of the Council for Aboriginal Reconciliation.
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