Aboriginal Law Bulletin
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The dispossession of indigenous people in Australia has elicited a wide range of responses from individuals, organisations and governments. In addition to reactions of an administrative kind, governments have legislated to return traditional land or to facilitate indigenous claims.
Recently this legislation, at least that enacted prior to Mabo [No. 2][1] in 1992, has been described as sporadically enacted and uncoordinated.[2] In part this is explained by the fact that State governments were attempting to deal with different indigenous land circumstances from the Commonwealth.
Nevertheless, significant amounts of country have been returned to traditional owners under these legislative regimes: up to forty-nine per cent of the Northern Territory and about twenty per cent of South Australia. There are other smaller holdings around the nation, the most recent proposal being that of the Tasmanian Government to return 0.06 per cent of the State to Aboriginal people.[3]
The return of traditional country, of course, is only one of several ways in which the rights of indigenous people can be recognised and some restitution provided. Other options include joint venture partnerships with government or developers; agreements under which royalties are paid in relation to development projects; acknowledgment of rights of access for various purposes in relation to land held by others; heritage protection; and recognition of common law native title. Each of these can be appropriate in particular circumstances.
Despite complaints about the deleterious effects of 'uncertainty' for the mining and pastoral industries given the possibility of native title declarations, to this point there may have been little lost by those sectors since the advent of the native title regime under the Native Title Act 1993 (Cth) (`the NTA'). There have been additional delays in development approvals in some instances, and some mining investment decisions may have been affected. Nevertheless, with the exception of Western Australia, where the State government has issued a large number of notices under the 'future act'[4] provisions of the NTA the overall impact has been marginal. Some 150 native title claimant applications have been lodged to date; although a number of pastoralists and others have been inconvenienced in responding to them, only about 85 have been accepted. In that no native title determinations have been made since Mabo [No. 2] in June 1992, the pastoral industry has continued much as before. And mining industry leaders have expressed their willingness to adjust to post-Mabo realities, including the Native Title Act.[5]
Although the native title regime has complicated the process for granting mining licences, perhaps those with most to complain about in regard to the native title regime are the native title applicants and potential claimants. To date, applicants have experienced significant difficulties in formulating and lodging claims but their major concerns relate to questions about the extinguishment of native title. The National Native Title Tribunal (`the NNTT') has taken the approach, based on the majority view of the High Court in Mabo [No. 2], that pastoral leases without provision (reservation) for Aboriginal access extinguish native title. The Lawn Hill Case (Waanyi) is the best known in this context: the NNTT President decided that, as a consequence of leases granted in 1883 and 1904, native title had been extinguished.[6] On 1 November 1995, the Full Bench of the Federal Court agreed by majority that the latter lease had extinguished native title at Lawn Hill. (The applicants are currently seeking special leave to appeal to the High Court.)[7] Although applications relating to pastoral leases with reservations in favour of Aboriginal access are being accepted by the NNTT, they could be dismissed should the Federal Court judgement in the Wik matter determine that any pastoral lease whatsoever extinguishes native title.[8] Such a decision would support the view taken by the Commonwealth since Mabo [No. 2].
The legislative route towards resolving the question whether pastoral leases extinguish native title is not attractive: it would be in conflict with the Racial Discrimination Act 1975 (Cth), and accordingly potentially burdensome from the point of view of financial compensation. For these reasons the Commonwealth has not taken action to resolve the pastoral lease issue and is looking to the Federal Court to resolve the matter. Nevertheless, the NNTT President has recently advocated a national approach which would allow native title to be claimed on pastoral leases:
`The Federal Government could ... ensure that Aboriginal Australians have uniform statutory access to pastoral leases for co-existence and that those rights are made equal to native title'.[9]
In the absence to date of a Federal Court judgement on pastoral leases containing reservations in favour of Aboriginal access, the NNTT under the NTA is accepting applications over such leases. To the extent that some parties to these applications are looking to the Federal Court for guidance, the mediation process in the NNTT has experienced considerable difficulty.
Under the NTA, attempts are made by the NNTT to mediate agreements in respect of accepted applications (s72); those not settled are referred to the Federal Court (s74). Further, and in regard to 'future acts', attempts can be made to find agreements between governments and native title holders that authorise 'future acts' affecting native title (s21).
Despite the options for reaching agreements under the NTA, a level of frustration and disaffection seems to have been developing in sections of the Australian indigenous community over native title. This has been revealed in its most articulate form in the First Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner (Michael Dodson). There Mr Dodson stated:
`Indigenous Australians hold very modest hopes for the capacity of the Native Title Act to deliver justice through the protection of our titles'.[10]
In large part the Native Title Act and the NNTT have been carrying the expectations of native title and the associated political consequences. In the assessment of indigenous interests, the legislative regime is not promising to deliver.
By contrast, there appears to have been a softening of the attitude of the mining industry, in particular, to native title. In March 1995 CRA's Chief Executive, Mr Leon Davis, expressed satisfaction with the central tenet of the NTA:
`This Government's initiative has laid the basis for better exploration access and thus increased the probability that the next decade will see a series of CRA operations developed in active partnership with Aboriginal people.'[11]
That is, the mining industry has begun to envisage that mining development in Australia increasingly will be conducted having regard to native title.
The Indigenous Land Use Agreements Conference, held in Darwin from 26 to 29 September 1995, was organised conjointly by the NNTT, the Council for Aboriginal Reconciliation, and the Aboriginal and Torres Strait Islander Commission. Its purpose was to focus on the interests most directly affected by native title in order to make progress. Miners, pastoralists, and others were asked to 'workshop' hypothetical agreements directly with common law holders of native title rights. What implications are emerging from this initiative?
The Conference organisers apparently identified an opportunity to lift part of the political burden that has been carried by the NTA, the NNTT and, to an extent, the courts. They attempted to move the emphasis onto the parties most directly affected by native title. The significance of the Conference appears to reside in the attempt to progress the acknowledgment of native title in this way, given current difficulties with the NTA and the lack of major achievement to date in the mediation processes of the NNTT. Justice French expressed this position clearly in his keynote address, in which he articulated the essential concerns that motivated the Conference. He suggested, somewhat extravagantly, that there is neither enough time nor enough money to enable Australia to rely on the courts for all answers to native title questions. Accordingly, the purpose of the Conference was to open practical pathways to agreements about traditional country.
The NNTT President's approach to achieving agreements is based on recognising native title holders as persons who hold native title at common law, whether or not that native title has been recognised through the processes for which the NTA provides. In the Judge's view, and as opposed to the answers to native title issues that may be provided by courts, agreements about native title enable its recognition 'rooted not in the strict letter of the law, nor concessions made under an imperial approach to land management, but in the recognition of substantial justice'.[12]
There are two major ways in which native title agreements can be negotiated. First, they can be mediated pursuant to the NTA. Justice French pointed out in his keynote address that, following acceptance of an application, a mediation conference or direct negotiation can proceed. The NTA provides for the NNTT to make a determination on the terms of the agreement (s73). The determination is then registered in the Federal Court (s166). Justice French pointed out that the uncertainty created by the High Court's Brandy[13] decision may be overcome by referring the application to the Federal Court under s74, on the basis that the parties seek their agreed determination as a consent order of the Court.
Agreements can also be mediated pursuant to the NTA within the 'future acts' context. Justice French confirmed that the NNTT has been urging governments and others to consider ways in which s21 can be used to support such agreements. Section 21(1)(b) allows agreements to be made between native title holders and the relevant government to authorise any 'future act' that will affect native title. Importantly, Justice French pointed out that, although s21 only contemplates an agreement between the relevant government and native title holders, there is no reason why the proposed beneficiary of the 'future act', such as the grantee of a mining or pastoral lease, cannot also be a party to the agreement.
The second major way in which agreements can be reached over native title is outside of the regime established by the NTA. This approach would be based on the recognition of common law native title right in the manner encouraged by the President. In this regard there may be some similarities between the two major ways of recognising native title. Even that under the NTA permits parties to mediate applications without having to resolve some of the factual and legal uncertainties that otherwise could only be settled in the courts. The NTA provides at s109(3) that, in conducting an inquiry, the NNTT is not bound by technicalities, legal forms or rules of evidence.
There is a significant current example of an attempted native title agreement that may not need to be agreed under the NTA. The CRA offer of a $60 million package to the Waanyi in connection with the Century project was developed with the assistance of Hon Hal Wootten QC, a Presidential Member of the NNTT. This offer, which is yet to be accepted, may not necessarily become part of a s21 agreement. (Mr Wootten was appointed by the Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to assist with this matter.)
Of the Conference speakers on the industry perspective, one of the most notable was Mr Jerry Ellis, President of the Minerals Council of Australia and a senior BHP Executive. Mr Ellis expressed the industry aspiration for cooperative dialogue with indigenous people. He considered that there was potential for the industry to develop mining activity with real possibilities for indigenous people to share in the benefits of exploration and development. Mr Ellis claimed that the minerals industry, particularly in the more remote areas, offers more opportunities than some alternative land uses for indigenous people to achieve economic benefits.
However, Mr Ellis was frank about the potential difficulties. He stated that there are real limits on how the minerals industry operates, and the interaction of customary law and mining tenure law does not always provide the degree of certainty required by minerals companies when planning major investments on indigenous land. In his view, the law, and in particular the NTA, leaves many issues unresolved and crying out for resolution - whether by the courts, by legislation, or by goodwill between the parties concerned.
Importantly, Mr Ellis advocated that the deficiencies of the NTA be remedied. He pointed out that the present process has placed a large workload on the NNTT without benefits flowing to any of the parties:
`The minerals industry is prepared to put substantial effort into remedying this situation and looks to all governments and the aboriginal leadership to do the same'.[14]
The most significant aspect of Mr Ellis' presentation was his announcement of a policy statement by the Minerals Council of Australia to guide mineral companies in developing agreements for land access and mineral development on indigenous land. Its main elements are:
Commenting on the Minerals Council policy statement at the Conference, Mr John Ah Kit said:
`I am encouraged by statements this week from the Minerals Council of Australia that acknowledge that their rigid attitudes towards native title and land rights have not necessarily served the industry well. It provides a glimmer of hope that the industry is now prepared to adopt Best Practice, and talk with indigenous Australians in a sensible and rational manner. It provides a glimmer of hope that the mining industry might be prepared to acknowledge a collective history that has, more often than not, served indigenous interests very badly'.[15]
By contrast with the mining industry's approach, Mr John Mackenzie, Chairman of the National Farmers' Federation Aboriginal Affairs Task Force, explained at the Conference why the National Farmers' Federation (`the NFF') believes that freehold title and pastoral leases have extinguished native title: for the NFF there is, accordingly, 'no need for costly, complex and inequitable mediation over native title claims'.[16] In any event, the NFF does not see any point in negotiating over a matter the nature of which has not been defined.
With regard to voluntary agreements, Mr Mackenzie stated that these are a matter for individual landholders. However, in the view of the NFF such agreements cannot involve exchange of native title for other benefits, including permanent interests in a pastoral lease, compensation, or the power to authorise 'future acts'. (This latter claim would appear to be at odds with s21(1)(b) of the NTA.) On the subject of regional agreements, the NFF considers that, when native title can be shown to survive on Crown land, such agreements may be appropriate for negotiation between indigenous people and governments.
Importantly, since the Conference, elements of the pastoral industry have adopted an approach that has progressed beyond that expressed by Mr Mackenzie. Former NFF Executive Director Mr Rick Farley has been asked to broker a deal between the Cattlemen's Union and Cape York Land Council. The Deputy Director of the Cape York Land Council, Mr David Byrne, is quoted as having said that exchanging the right to claim native title for guarantees from landholders would be an option.[17]
The Darwin Conference last September was particularly important and useful. It brought together a wide range of parties who are significant for the acknowledgment of native title in Australia. And to a very large degree, it succeeded in encouraging them to cooperate together in search of ways forward in the recognition of native title. In being successful in this overall goal, the Conference also succeeded in disseminating the conviction that had instigated it: that as much as possible of the political burden needed to be lifted from the NTA and the NNTT and accepted more by those who will be party to native title agreements. But while it facilitated their understanding of the potential of the mediation process for native title, it gave rise to a number of questions, answers to which will only become clear in the future. Those questions include:
[2] Federal and State Land and Resource Use Management and Allocation Regimes, paper given to the Indigenous Land Use Agreements Conference, Darwin, September 1995 by Julie Cassidy.
[3] Announced by Premier Groom on 17 October 1995: see The Australian, 18 October 1995. The Aboriginal Lands Act 1995 (Tas) was passed on 2 November 1995 and enacted on 6 December 1995.
[4] Sections 26-44; `Section 29 Notices'.
[5] See Leon Davis, `New Directions for CRA', 20 March 1995, address to Securities Institute of Australia.
[6] Re Waanyi People's Native Title Application (1995) 129 ALR 118.
[7] See page 20 of this issue of the Aboriginal Law Bulletin for a summary of the decision.
[8] Wik Peoples v State of Queensland [1994] FCA 967; (1994) 120 ALR 465.
[9] `Court may reverse Waanyi decision', The Australian, 8 November 1995.
[10] The Native Title Report January - June 1994, Aboriginal and Torres Strait Islander Social Justice Commissioner Michael Dodson, AGPS, Canberra, 1995, page 7.
[11] Leon Davis, `New Directions for CRA', 20 March 1995, address to Securities Institute of Australia.
[12] `Pathways to Agreement', paper given to the Indigenous Land Use Agreements Conference, Darwin, September 1995 by Justice French.
[13] Brandy v HREOC [1995] HCA 10; (1995) 127 ALR 1.
[14] `Minerals Industry Perspective', paper given to the Indigenous Land Use Agreements Conference, Darwin, September 1995 by Jerry Ellis.
[15] `Native Title and Best Practice', paper given to the Indigenous Land Use Agreements Conference, Darwin, September 1995 by John Ah Kit.
[16] `Native Title and Voluntary Agreements', paper given to the Indigenous Land Use Agreements Conference, Darwin, September 1995 by John Mackenzie.
[17] `Aborigines, graziers seek land use accord', The Australian, 14 November 1995 and `Aboriginals, graziers get together on the land', The Australian, 15 November 1995.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/62.html