Native Title Report 2001
Chapter Three: Negotiating co-existence through framework agreements
Introduction
- Native title interests are entitled to the same level of protection as non-Indigenous interests
- Negotiation of agreements should encourage and allow continued observance of Indigenous laws and customs
- Negotiation of agreements should recognise Indigenous governance within their traditional lands
- Recognition that native title is a group right and that the inter-generational aspect of the right must be protected.
- Recognition that native title is a unique interest.
- Native title parties' rights should not be interpreted as "frozen" rights.
Native title agreements are limited by the discriminatory standards contained in the NTA
Framework agreements within human rights principles
- Negotiating governance through framework agreements
- Negotiating development through a framework agreement
Issues to be considered in using framework agreements
Recognising Indigenous interests
- Non-extinguishment principle
- Recognition of contemporary Indigenous culture
Recognising the native title party
- Recognising native title as a group right
- Connection reports
- Capacity building
Entrenching framework agreements
Introduction [1]
A stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land is emerging through negotiation and agreement-making. Native title agreements are increasingly seen as an important tool in defining the rights of native title holders over their land. But here, as in other aspects of native title, there is concern that there are currently no mechanisms to safeguard human rights principles. Substantive, just and equitable outcomes are only achieved if there are minimum standards in place to recognize and protect these principles. This chapter focuses on framework agreements as an opportunity for both Indigenous and non-Indigenous parties to settle upon a set of standards for the co-existence of their interests in land. The following human rights principles provide the basis for a productive, stable and enduring relationship:
- Non-discrimination
on the basis of race as required by Article 2 International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD)
and Article 26 International Convention on Civil and Political Rights
(ICCPR);
- Equal protection
of property interests before the law as required by Article 5 ICERD
and Article 17 Universal Declaration of Human Rights (UDHR);
- Protection of
the right to maintain and enjoy a distinct culture as required by Article
2 ICERD and Article 27 ICCPR; and
- Right of Indigenous people to effective participation in decisions affecting them, their lands and territories as required by Article 5(c) ICERD, Article 1 ICCPR, and Article 1 of the International Covenant on Economic Social and Cultural Rights (ICESCR).
Following from these human rights standards the negotiation of native title agreements should encompass the following principles:
Native title interests are entitled to the same level of protection as non-Indigenous interests
Native title-holders should not be required to give up native title as a condition of negotiating a native title agreement. Negotiations that respect the equality of Indigenous peoples' property rights with other property rights will not seek further extinguishment of native title. Furthermore, where the legal question of prior extinguishment is uncertain, but native title parties maintain a relationship with the land based on traditional law and custom, negotiations should proceed as if native title continues to exist. Even where native title has been extinguished in part of the claim area, this should not preclude negotiations regarding that land if the interest that extinguished the native title has ceased (and the land has reverted to Crown title) and the native title claimants maintain a connection with that land based on the observance of traditional law and custom.
Negotiation of agreements should encourage and allow continued observance of Indigenous laws and customs
International human rights treaties recognise that all peoples have an equal right to practice and enjoy their distinctive culture. Native title negotiations should not require native title parties to breach their laws and customs in order to obtain the benefits of their native title interests.
Negotiation of agreements should recognise Indigenous governance within their traditional lands
International human rights principles recognise that Indigenous peoples have a right to effective participation in decisions affecting their traditional lands. In relation to native title negotiations, this right should lead to:
- Recognition of
native title holders as owners or joint-owners and managers of the land,
for example, provision for joint-management arrangements in national
parks;
- The group itself being able to determine membership of the native title party based on General Recommendation VIII of International Committee on the Elimination of Racial Discrimination which states that 'group membership shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.' [2]
Recognition that native title is a group right and that the inter-generational aspect of the right must be protected.
Recognition that
native title is a unique interest.
Native
title has cultural, religious and social significance. Its economic value
to Indigenous people is limited by the fact that it is inalienable. Consequently,
purely economic assessments of land value are not appropriate for the
calculation of compensation. Negotiated agreements should reflect this.
Native title parties' rights should not be interpreted as "frozen" rights
It must be recognised that, just as non-Indigenous Australian culture has changed since the British acquisition of sovereignty, so have Indigenous cultures. 'Connection' to land may include contemporary cultural beliefs and practices forming a distinct Indigenous culture developed from an earlier traditional culture as it existed at the time of the acquisition of British sovereignty.
Native title agreements are limited by the discriminatory standards contained in the NTA
An increasing number of native title agreements have been reached across the country, both within and outside the provisions of the Native Title Act (NTA).[3] Many agreements reached outside the NTA have emerged from negotiations which were initially conducted within the processes of the NTA. Others were negotiated entirely outside the NTA, with the provisions of the NTA acting as a catalyst. In all instances the NTA and the benchmarks contained within it are fundamental to the process by which native title agreements are reached and to the rights contained within them.
As explained in the Native Title Reports 1998, 1999 and 2000 the benchmarks contained in the amended NTA are racially discriminatory in significant ways. In the four sets of provisions which these Native Title Reports identify as discriminatory - validation, confirmation, primary production, and right to negotiate - any conflict that arises between native title interests and non-Indigenous interests is resolved by ensuring that non-Indigenous interests always prevail over Indigenous interests. [4] The failure of the NTA to provide native title-holders with the same level of protection of their interests as that provided to non-Indigenous interests is racially discriminatory. Furthermore, these provisions were adopted in July 1998 without the informed consent of Indigenous people.
The future act provisions of the NTA, under Division 3 Part 2, are particularly important to agreement-making because they determine whether and at what level Indigenous people are engaged in negotiations concerning mining, compulsory acquisitions and state-wide land use policies including primary production levels, water and airspace management, renewals and extensions of Crown leases, public facilities and national parks.
In Chapter 1 of this report I deal with the way in which the right to negotiate over mining and certain compulsory acquisitions has been interpreted and administered so as to reduce Indigenous engagement with decision-makers over these future acts. The procedural rights provided in the NTA [5] - to be notified and to comment where state governments propose future acts as part of implementing state land use policy - are also important to Indigenous participation on land the subject of a native title claim, even though they are less extensive than the right to negotiate. Two recent decisions by the Federal Court have significantly limited the extent to which procedural rights can be relied upon by Indigenous parties to facilitate their negotiations with government:
Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland [6]
In the course of a native title determination application before the Federal Court, the Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples sought a declaration that a buoy mooring authority issued by the State of Queensland to Pasminco Century Mine Limited was invalid. The basis of their application was the failure of the State to comply with the procedural requirement in the NTA to notify and give native title parties an opportunity to comment on the proposal. On appeal the Full Federal Court upheld the primary decision that the failure by the government party to accord procedural rights of notification and consultation to the native title parties did not invalidate the future act undertaken.
Harris v Great Barrier Reef Marine Park Authority [7]
Between November 1998 and February 1999 the native title parties received 109 notices for permits, primarily for tourism activities, in the area of sea covered by their native title claim. The notices did not disclose the identity of the applicant for the permit in each case nor the area or location within the claim area where the proposed act was to occur. The majority of the notices provided little more than a blanket description of the areas.
The Full Federal Court upheld the primary court decision that the notices complied with the requirements of section 24HA NTA, and that there was no requirement in subsection 24HA(7) to notify the registered native title claimants before an Authority had determined to grant the permit requested. [8]
These two decisions raise serious questions about the value and utility of the procedural rights available to native title parties under Subdivisions H - M, Division 3 Part 2 NTA. Their practical consequence for native title parties is that the few procedural rights that do exist under the NTA do not necessarily provide an opportunity for Indigenous parties to negotiate with government on how decisions affecting their land should be made.
I have advocated legislative amendment in my preceding three Native Title Reports as the most secure method of removing the discriminatory benchmarks in the native title process and establishing meaningful and beneficial minimum standards for future relationships on native title land. While there is some leeway within the NTA to enter into Indigenous Land Use Agreements (ILUAs) that reverse the extinguishing effect of the validation of intermediate period acts (under sections 24BB and 24CB) this is insufficient to reframe the entire agreement-making process on the basis of equality. In any case, no ILUA to date has relied on these provisions. What is required is for governments to commence fresh negotiations with Indigenous representatives and native title applicants with the purpose of ensuring that the ILUA has the consent of Indigenous people.
The NTA should be amended so that the agreements that will inevitably continue to be reached between Indigenous and non-Indigenous people over native title can form the basis of an enduring and stable relationship between them. Where racial discrimination remains a part of the agreement-making process, the relationship between Indigenous and non-Indigenous people will always be contingent upon its eradication.
Framework agreements within human rights principles
Framework agreements provide an alternative course available to negotiating parties to ensure the adoption of minimum standards in agreement-making consistent with the human rights principles outlined above. There are many examples of States and peak bodies entering framework agreements with Indigenous representatives in order to set standards and templates for subsequent site-specific or project-specific agreements.
Negotiating governance through framework agreements
A framework agreement can provide for interaction between the native title party and a governing body rather than having the process imposed through legislation or government policy. This, in turn, can ensure improved governance and service delivery tailored to local priorities. [9] Framework agreements can also provide a tool for prioritising limited resources to accommodate Indigenous concerns. [10]
At the State government level there has been an indication in several states that there is a willingness to establish a framework for the co-existence of Indigenous and non-Indigenous interests in land. The South Australian government, Farmers Federation and Chamber of Commerce are working with native title groups and the Aboriginal Legal Rights Movement (the representative body) to establish a state-wide framework agreement in which a wide range of issues including native title determinations, access agreements, service provision, public health, heritage protection, intellectual property rights, water management, environmental management infrastructure, heritage clearance and notification procedures are on the table.
In Victoria the State government, ATSIC and the Mirimbiak Nations Aboriginal Corporation have agreed to a Protocol for the negotiation of a native title framework agreement for Victoria [11] in order to resolve native title applications as well as a broad range of issues outside of native title.
In New South Wales the NSW Aboriginal Land Council and NSW Minerals Council have signed a Protocol for the negotiation of agreements for exploration and mining for NSW.
In Queensland the State government and Indigenous representatives have negotiated a draft state-wide agreement to establish procedures for negotiating an ILUA for determining the process for issuing of notifications under s29 of the NTA. A further state-wide ILUA deals with the exploration permit backlog by providing a standard arrangement for pending exploration tenements to be granted in the relevant claim area in return for certain conditions including heritage and environmental protection, and payments to the relevant claim group. [12] These framework agreements are discussed in detail in Chapter 1 of this Report.
The Western Australian government is currently reviewing its guidelines in relation to native title generally and s29 notifications.
Local governments can also use framework agreements to address Indigenous issues with the informed consent of the traditional owners in their shire. One example of this is the Rubibi Interim Agreement which commences:
The Shire of Broome acknowledges that the Aboriginal people are the original inhabitants of the Broome region, and that according to their continuing law, traditions and customs it remains their traditional country. [13]
Another is the Agreement made between the Quandamooka Land Council and the Redlands Shire Council in Queensland. [14]
Negotiating development through a framework agreement
The 1996 Cape York Peninsula Heads of Agreement agreement [15] between Indigenous people, pastoralists, and conservation groups shows that, at a framework level, native title parties can secure their entitlements and interests in developments on their land. For non-Indigenous parties, the framework agreement increased certainty by minimising later opposition to their activities. The initial framework agreement resulted in some 'ground rules' between Aboriginal people and pastoralists:
Aboriginal people gain a tangible working agreement for the resolution of native title issues by negotiation rather than litigation, while [pastoralists] gain security in relation to native title. Conservation groups…gain…a commitment to World Heritage values throughout the Cape York Peninsula. [16]
The agreement records, acknowledges and respects the differing interests in the Cape York area:
1. The CU [Cattlemen's Union of Australia], ACF [Australian Conservation Foundation] and TWS [The Wilderness Society] acknowledge and affirm that the Aboriginal people, represented by the CYLC [Cape York Land Council], and the Peninsula Regional Council of ATSIC, are the original inhabitants of Cape York Peninsula who are entitled by their traditional law to their traditional customs and culture including access to areas of traditional significance.
2. The Aboriginal people of Cape York Peninsula, the ACF and TWS acknowledge and affirm that pastoralists of Cape York (including non CU members) are significant landholders who have existing legal rights and concerns related to their industry and lifestyle.
3. The parties acknowledge that there exist on Cape York Peninsula areas of significant conservation and heritage value encompassing environmental, historical and cultural features, the protection of which is the responsibility of State and Federal governments in conjunction with the parties. [17]
The original framework agreement was re-affirmed and expanded in September 2001 when further parties including the Queensland government, the Cairns and Far North Environment Centre, the Balkanu Cape York Development Corporation, and the Peninsula Cattlemen's Association [18] joined in the agreement. The Cape York Agreement establishes the basis for a long term relationship between the parties that is not only equitable and based on the informed consent of the traditional owners of the region, but is conducive to long term development projects on the land concerned.
Issues to be considered in using framework agreements
The process of building sustainable and equitable relationships between all stakeholders requires some basic issues to be resolved early in the negotiation process. Framework agreements can be used to recognise Indigenous interests, identify the relevant native title parties and to establish enforcement procedures.
Recognising Indigenous interests
Non-extinguishment principle
Framework agreements can ensure that Indigenous interests are recognised by adopting the non-extinguishment principle as a minimum standard on which to base the relationship of Indigenous and non-Indigenous interests on country. It is encouraging to note government support for this principle as evidenced by the Commonwealth Attorney-General's submission to the Inquiry into ILUAs conducted by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund:
[T]he Commonwealth's position when it is negotiating ILUAs - is that unless there are very good reasons that native title has to be extinguished…the non-extinguishment principle will apply. [19]
The non-extinguishment principle, referred to in various agreements, confirms that the non-Indigenous interest has priority for a specified time but that when the inconsistent non-Indigenous interest is removed, Indigenous rights can be recognised and enforced under the NTA. While this ensures the survival of non-Indigenous interests it also replicates the discriminatory hierarchy of interests contained in the definition of the non-extinguishment principle in section 238 of the NTA. However the non-extinguishment principle can be used in a more potent way in framework agreements to overcome the narrow and discriminatory approach to the recognition of native title under the legislation.
An example of this is in the recent agreement in South Australia between various exploration companies, the Yandruwandha/Yawarrawarrka Traditional Land Owners (Aboriginal Corporation), and the State government which established a process for agreed land access and usage. [20] The companies' obligations under this agreement apply regardless of whether the Indigenous parties obtain a determination of native title from the court and are not dependent upon the native title party establishing native title over the Licence Area or obtaining a determination of native title. [21]
The non-extinguishment principle which guided an agreement between the Indigenous people in the Cape York region and Comalco went so far as to recognise Indigenous interests even though it was likely that, at law, native title had been extinguished. [22]
The adoption of the non-extinguishment principle as a basis for future agreements would curtail the use of compulsory acquisition as a means of progressing developments that have been held up either because of disputes with native title parties or because of time-consuming processes. This practice was referred to in evidence before the PJC Inquiry on ILUAs by Councillor Ross, President of the Australian Local Government Association, as one adopted by some local councils in Australia:
CHAIR - It seemed unfortunate to me that a number of these councillors had got to a point of frustration such that they felt that the best way to go was compulsory acquisition, which is really a position of last resort and quite an unfortunate one brought about by a sense of frustration at the delay and complexity of what started out to be for them quite a simple process.
Councillor Ross - I think that we have made that point. We think that it is a poor decision to make and people have been improperly advised. [23]
Mr Wensing, consultant for the Australian Local Government Association, also gave an example of the use and implications of the compulsory acquisition approach to development:
[In] the Cairns City Council acquisition of land on the foreshore to facilitate private development… they started the process by serving a compulsory acquisition notice on the registered claimants. Of course, then they went and knocked on the door and said they wanted to negotiate in good faith. Well, they have just destroyed that, haven't they? I am pleased to see that in the long run they withdrew the compulsory acquisition notice and decided to head down the agreements route. [24]
Framework agreements between governing bodies such as local councils or peak industry bodies which adopt the non-extinguishment principle would ensure that economic development of an area did not occur at the expense of native title interests but were built upon a recognition of them.
Recognition of contemporary Indigenous culture
The rights and interests protected under native title should be interpreted as part of a contemporary cultural system. The judgment of Justice Kirby in the High Court in the Croker Island case [25] confirms that the common law of native title protects Indigenous culture in its current manifestation and not as it was practiced before the acquisition of sovereignty. Justice Kirby saw the "frozen rights" approach as a breach of human rights principles:
It is not enough merely to allow Indigenous peoples to carry out their traditional economic activities without legal protection for their exercise of control and decision-making in relation to developments (including the use of natural resources)…The principle of non-discrimination must include a recognition that the culture and laws of Indigenous peoples adapt to modern ways of life and evolve in a manner that the cultures and laws of all societies do. [26]
Although Justice Kirby's judgment was in the minority in other respects, none of the other three judgments disagreed with his Honour's comments on this issue. Framework agreements which embody the principles enunciated by Justice Kirby would ensure that the economic interests of Indigenous people were not limited to traditional rights to hunt and fish on particular land but encompassed a right to participate in all developments that might occur on native title land.
Recognising the native title party
Recognition of Aboriginal people as the traditional owners of an area of land is an important principle that can be addressed through framework agreements. This can be done in various ways. The Protocol for the negotiation of a native title framework agreement for Victoria between the State of Victoria, ATSIC and Mirimbiak Nations Aboriginal Corporation has the following introductory paragraphs:
The parties acknowledge that the High Court of Australia in Mabo v Queensland (No. 2) (1992) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional land…
The State acknowledges that the traditional Aboriginal owners of the land and waters in Victoria may hold native title to their traditional lands. Accordingly, the State will treat all lands in Victoria in accordance with the provisions of the NTA, and will conform to the future act regime of the NTA. [27]
These clauses seek to augment the law by accepting that, even though native title holders may not have established their title to the land, they will be accorded the benefit of the procedural rights under the NTA.
Recognising native title as a group right
Native title is a group or communal right. [28] There is mutual benefit to parties to a native title agreement including some level of definition of the membership of the native title group. For Aboriginal people it ensures adherence to the principle that no-one can speak for another person's country. For non-Indigenous parties it ensures that negotiations are being held with those people who have the authority to provide binding promises in relationship to the land in question. Acknowledgement of the Indigenous parties can be addressed through framework agreements so that Indigenous peoples' connection and history with the land are respected.
A problem may arise where it is unclear whether the persons negotiating the agreement represent all their purported constituents. A protocol between the Queensland Indigenous Working Group and Queensland government dealt with this issue in a manner that sought to be respectful of the negotiating parties:
This Protocol does not prevent the Queensland Government consulting with other Indigenous parties as it sees fit on a case by case basis. However, in every consultation with Indigenous parties, the Queensland Government will have due regard to the representative mandate of those parties when taking into account and lending weight to the parties' views. [29]
The Queensland Protocol was part of the process that led to the recent adoption of a draft State-wide agreement dealing with mineral exploration discussed above.
Effective participation requires that all relevant Indigenous people be included in future negotiations. It is also useful to ensure all the parties who may be affected are involved from an early stage. The South Australian government has been exemplary in this regard by ensuring that funding is provided to assist with meetings and discussions between all relevant Indigenous groups to determine their interest in a potential state-wide framework.
Connection reports
One way in which governments and companies deal with the issue of identifying Indigenous parties is to require a connection report from the Indigenous group. A connection report is a document, usually prepared by an anthropologist and often after months of research, providing genealogies on the members of the Indigenous group and identifying interests relevant to the area being considered.
It has been observed that 'the purpose and mandatory inclusion of Connection Reports in mediation has occurred neither systematically nor as a standardised government response Australia-wide'. [30] Some governments, for example Western Australia prior to the change of government, have insisted on receiving such a report as a pre-condition to negotiation with a native title claim group.
I provided a submission to the recent Western Australian review of native title processes ( the Wand Review) commending the Western Australian government moves to identify and adopt appropriate processes for negotiating agreements.[31] In this submission I cautioned against an approach where connection reports are required to 'legitimise' a native title claim. When legitimacy is the purpose for requiring the connection report there is a danger that they will take on a pseudo-evidential character that is more appropriate for a court than a negotiation. While negotiations may result in a consent determination, there is no guarantee that this will in fact occur.
The approach of requiring legitimation of Indigenous parties presents an obstacle to the negotiation of framework agreements where non-Indigenous parties insist on having a comprehensive connection report beforehand. It is therefore important to consider what role a framework agreement should specify for any future connection report. One obvious way is to limit the cases where a connection report is needed. In Victoria, the government has stated in its Guidelines for Native Title Proof: Victoria [32] that it will commence mediations without first receiving a connection report, 'however, meaningful progress on future land management matters will be limited until issues of native title proof have been resolved'. It can 'accept…evidence in a variety of forms, as long as the collective result can be assessed' [34] and 'will accept evidentiary material from claimants in a range of forms, either as a unified connection report or in some other form of presentation suitable for assessment'. [35]
The Victorian government policy operates on the basis that the type and extent of information required depends on the matters sought to be agreed upon. There is a range of escalating requirements from a future-act ILUA (little evidence needed) to a consent determination resulting in a Court order of native title. The latter is more likely to require a connection report. [36]
Framework agreements can ensure that the approach adopted by state governments to identifying native title parties and their interests is both tailored to the circumstances of the relationship being negotiated and arrived at collaboratively with the informed consent of native title parties. The Victorian government adopted an inclusive approach to establishing how a connection report would be incorporated into any native title negotiations by consulting with the State's Land Council and other parties pursuant to the Protocol for the negotiation of a native title framework agreement for Victoria to settle these issues.
The Western Australian Aboriginal Native Title Working Group (WAANTWG) has proposed that Indigenous parties provide a negotiation report rather than a connection report to clarify issues among relevant Indigenous groups in relation to what interests should be addressed in framework agreements and resulting negotiations. I am pleased to note that aspects of WAANTWG's proposal are reflected in the final report of the Wand Review with the suggestion that governments encourage the development of a report by native title claimants dealing with issues to be resolved and the outcomes they seek. [37] Agreements offer an opportunity to return decision-making power over group membership to Indigenous people, and are consistent with the human rights principle of self-identification for Indigenous people outlined above.
Capacity building
Capacity building is about ensuring that native title parties can participate in a system which has been devised by the non-Indigenous legal and political system and which seeks to give recognition to Indigenous people's traditional laws and customs. While Indigenous interests can be represented by non-Indigenous experts, human rights principles require that no decisions affecting native title land should be made without the informed consent of those affected. [38]
The question then arises as to how to ensure Indigenous communities are effectively involved in a framework agreement. Considerable work will be involved in this because it 'requires effective processes not only to seek community views on relevant issues, but also to disseminate information on existing and likely project impacts and on the options available to the community, so that people can make informed decisions'. [39]
Informed consent cannot be given by a disparate, disadvantaged group, and there may often be a need to address issues of governance and capacity building before even considering the issues to be negotiated. It should not be assumed this is a process in which non-Indigenous people tell Indigenous groups how to organise themselves - the creation or strengthening of Indigenous governance must occur in a way appropriate to the culture of the groups involved. An example from the Pilbara region of Western Australia is illustrative. In the early stages of negotiation between three Indigenous groups and the mining company Hamersley Iron, there was no single Aboriginal corporation in the Pilbara that commanded the necessary support to handle negotiations on behalf of the three groups. The Aboriginal groups decided they would join together for the negotiations and form a new Aboriginal corporation known as 'Gumala' which had a governing committee comprising representatives from each group. Hamersley Iron resourced Gumala to enable it to negotiate on an equal footing, but did not participate in the organisation's decisions. [40]
The aim of capacity building is to ensure Indigenous people have the opportunity for effective ongoing participation in decisions affecting their land; it does not make those decisions. The process needs to be structured for opportunities for real input at all appropriate times, [41] and not just as a publicity exercise without meaningful involvement. Such a situation occurred in recent government efforts to increase community involvement in planning for an Australian marine conservation park. An advisory committee was formed that included local representatives from people who fish (recreational and commercial), naturalists, resources industry (off-shore and on-shore), tourism operators and the aquaculture industry. The only Indigenous representative was not local, and was a government employee from the capital city, many hundreds of kilometres away. Local Indigenous people were invited to make submissions to the advisory committee but were disappointed that they were not represented when the decision was made.
A positive example however is the comprehensive work toward a South Australian framework agreement, dealing with issues of governance and capacity-building, which has been progressing in that State since 1999. The government has provided substantial funding to ALRM to facilitate meetings of Indigenous communities throughout the state to consider options of a state-wide resolution of native title issues. The process has been described as follows:
A framework…agreement will set up the rules and guidelines for talking about native title, but it will not control the final outcomes. The agreement will give people a framework for how to talk to each other - what issues to consider, how to organize meetings and who to talk with, but the final agreements (ILUAs - Indigenous Land Use Agreements) about particular places would be controlled by the native title claimants for those places, not this statewide agreement. In other words, the framework is not a cage that keeps ILUAs controlled, but a set of rules about how to make ILUAs. [42]
In South Australia native title has provided an opportunity for the empowerment of Indigenous people, enabling them to re-organise their structures and take control over their communities and their land. However this opportunity will be lost to many communities if they are not properly resourced to put in place the necessary processes for this to occur. I have noted in Chapter 2 of this report that the government has provided increased funds to ATSIC in the 2001 - 2002 budget to be used for capacity building by Native Title Representative Bodies (NTRB). While these funds are desperately needed for this purpose, I discuss in the previous chapter how the granting of tied funds in this way fails to appreciate the chronic under-funding of representative bodies to perform their basic statutory functions.
Enforcement of Framework Agreements
Once an equitable basis for future relations is agreed upon, it is critical to consider how framework agreements will be implemented and enforced by the parties. In my 2000 Social Justice Report I advocated that effective framework agreements have clearly targeted plans and adequate performance indicators, and ongoing and independent monitoring and outcome evaluation. [43]
Where framework agreements create legal relations, Indigenous parties may encounter enforcement difficulties if the development envisaged has proceeded without providing promised benefits, such as training or employment targets. An example may be where a company obtains a mining tenement through agreement with native title claimants. If the tenement-granting process has been properly followed and the company complies with the relevant mining laws of that State and any tenement conditions, the company does not forfeit the tenement even if it breaks its agreement with the native title claimants. Enforcement is particularly difficult where failure to comply with its side of the bargain is not apparent until some time has passed. [44]
It is also useful for framework agreements to specify within the document the consequences of a party's default. One example of this is the Queensland exploration-backlog ILUA [45] under which parties agree that conditions protecting Indigenous rights form part of the conditions of tenement [46] and that if these conditions are breached, the Indigenous party can trigger action under the State's mining laws. [47] Agreements can also provide for 'external' monitoring, for example by the local NTRB, or by referring disputes to an independent third party.[48] Alternatively, a process can be built into the framework agreement, for example by a monitoring committee with its role and methods specified in the agreement. [49]
Another method of addressing implementation is to assign responsibilities for following through on any areas identified for future work between the parties. [50] One such example in Queensland specified the various matters that future negotiations would attempt to address (including native title rights, town planning and management, economic development, law enforcement, and third party interests) and stated that the parties would jointly appoint a Project Coordinator 'to undertake the day to day management of the negotiations and [various studies]'. [51] The agreement also specified the establishment of a steering committee, comprised of a 'balanced representation of the parties, to negotiate on issues [specified in the agreement], instruct and monitor the Project Coordinator, ...[and] facilitate consultation with relevant stakeholders and the general public, as agreed by the parties'. [52]
If the framework agreement creates no legal relations between the parties and is simply a protocol for future negotiations [53] or enshrines agreed government processes, then enforcement under normal contract principles will not be applicable. New South Wales has recently seen an example where a framework agreement between the New South Wales government and the NSW Aboriginal Land Council, aimed at recognising the procedural and substantial rights of Indigenous people when the State government dedicates land as a national park, was ignored by the State government. [54]
Registering a framework agreement under the ILUA provision of the NTA can give a level of enforceability to it. The benefit of adopting this approach is that registration of a framework agreement as an ILUA gives it the status of a contract between the parties. [55] This can provide greater protection against a defaulting party than may exist under general legal principles. However, in relation to the successors of registered ILUAs, the NTA's provisions operate to bind only future native title parties, not future non-Indigenous parties.[56] I have raised my concerns in relation to these provisions with the PJC Committee which it noted as a problem in its Report [57] but made no recommendations to improve the situation. It simply stated:
[P]arties to ILUAs and those drafting precedent agreements should be aware of these issues [including racial discrimination in the NTA's enforcement of ILUAs] and incorporate terms that resolve uncertainty and the need for a court to determine questions'. [58]
In my view, the operation of the NTA to entrench only Indigenous obligations in an ILUA and not apply this same standard to non-Indigenous parties is racially discriminatory. This discrimination should be resolved by legislative amendment.
Entrenching framework agreements
The difficulty with implementing a human rights approach to native title through framework agreements is that they depend on being voluntarily adopted by those engaging directly with Aboriginal people. The examples noted in this chapter demonstrate that framework agreements are a viable option for some government and commercial entities wanting to engage with Aboriginal people because the agreements provide certainty and stability in the relationships that they engender. However, even where framework agreements based on human rights principles are a preferred option, the failure of the legal system to provide mechanisms for Indigenous parties to enforce them requires a political solution. A treaty between Indigenous and non-Indigenous people could provide the ultimate framework for the renegotiation of native title relocated outside of the NTA and the common law and positioned within a human rights framework.
A treaty can provide a process in which Indigenous rights to land can be squarely raised and resolved with the informed consent of both sides. As was stated by the Canadian Royal Commission on Aboriginal Peoples:
[N]othing is more important to treaty nations than their connection with their traditional lands and territories, nothing is more fundamental to their cultures, their identities and their economies. We were told by many witnesses at our hearings that extinguishment is literally inconceivable in treaty nations cultures.
The treaty nations maintain with virtual unanimity that they did not agree to extinguish their rights to their traditional lands and territories but agreed instead to share them in some equitable fashion with the newcomers. [59]
A recent United Nations report by Special Rapporteur Miguel Alfonso Martinez, Study on treaties, agreements and other constructive arrangements between States and indigenous populations, supports the treaty process as a means of resolving Indigenous issues such as land rights:
Finally, the Special Rapporteur is strongly convinced that the process of negotiation and seeking consent inherent in treaty-making (in the broadest sense) is the most suitable way not only of securing an effective indigenous contribution to any effort towards the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict resolution of indigenous issues at all levels with indigenous free and educated consent. [60]
The Council for Reconciliation included in its report to Parliament a draft Bill [61] which forms a framework for the negotiation of unresolved issues between Indigenous and non-Indigenous people through a treaty process. The objects of the draft legislation include:
- To acknowledge the progress towards reconciliation and establish a process for reporting on the nation's future progress;
- To establish processes to identify and resolve the outstanding issues between Indigenous peoples and the Australian community;
- To initiate a negotiation process to resolve reconciliation issues between Indigenous peoples, and the wider community through the Commonwealth government that will result in a Treaty or Agreement.
The underlying assumption of the draft Bill is that the treaty process is an ongoing process in which unresolved issues such as Indigenous rights to land must be squarely raised and processes put in place for their resolution based on the informed consent of both sides.
Once the treaty process has been implemented it is important that its resultant gains are not able to be removed by successive governments. That is because these gains are not the outcomes of government policy or legislation, they are gains derived from the right of Indigenous people to make decisions in relation to the issues that affect them, including decisions over their land and their resources.
To avoid derogation of Indigenous people's treaty rights they must be constitutionally enshrined. The Senate Standing Committee on Constitutional and Legal Affairs proposed in its 1983 Report Two Hundred Years Later, the insertion of a clause in the Constitution along the lines of s105A in which the Commonwealth is empowered to make agreements with representatives of Aboriginal and Torres Strait Islander peoples. This proposal remains a viable option for ensuring that treaty rights are enforceable against all Parliaments. [62]
1. Part of this chapter is based on my Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry Into Indigenous Land Use Agreements (PJC Inquiry), August 2001. This Submission is annexed to this Report.
2. International Committee on the Elimination of Racial Discrimination, General Recommendation VIII - Identification with a particular racial or ethnic group (Article 1, paras 1 & 4) (UN document: A/45/18) 24 August 1990
3. A draft report, Agreements between Mining Companies and Indigenous Communities (December 2001), commissioned by the Australian Minerals and Energy Environment Foundation (AMEEF) and prepared by Indigenous Support Services and ACIL Consulting, has collected information on 140 agreements covering issues of native title, mining and heritage matters. The report notes 'of the approximately 140 agreements on the database…all but 4 were concluded after 1994' (p13), but cautions that 'the database should be further developed before it is made available as a resource to Indigenous, mining and other interested parties' (ibid).
4. In 1999 the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner argued to the Committee on the Elimination of All Forms of Racial Discrimination that these provisions are discriminatory, see Submission by the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission to the United Nations Committee on the Elimination of Racial Discrimination Response to the request for information in relation to Decision 1(53) concerning Australia: CERD/C/53/Misc.17/Rev.2, 11 August 1998, 3 March 1999, paras 43 - 90. This document is found at www.humanrights.gov.au/social_justice/native_title/index.html#submission. An analysis of these provisions and their application by State and Territory governments is also contained in the Native Title Report 1999, pp49 - 67. The Committee on the Elimination of Racial Discrimination found these four sets of provisions to be discriminatory in March 1999, Committee on the Elimination of Racial Discrimination, Decision (2)54 on Australia - Concluding observations/ comments, (UN document CERD/C/54/Misc.40/Rev.2), 18 March 1999.
5. Subdivisions G - N, Division 3, Part 2, NTA
6. Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland [2001] FCA 414, Full Court (11 April 2001)
7. Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603 (11 May 2000)
8. [2000] FCA 603 at para 50 per Heerey, Drummond and Emmett JJ.
9. Australian Local Government Association, Working Out Agreements with Indigenous Australians: A Practical Guide, ATSIC and Australian Local Government Association, Canberra, 1998, p15. '[T]here has been a movement within the indigenous land use agreement process to try to establish that relationship ["of respect, recognition, and good will"] between government and indigenous people outside individual ILUA agreements. That is where I think the state-wide framework agreements have played a role … The development of state-wide framework agreements is a positive development in the ILUA framework because they recognise that need for states to deal directly with indigenous people on an equal footing that establishes that recognition and respect', evidence of Strelein, L, to the PJC Inquiry, Official Committee Hansard, 2 April 2001, p NT258.
10. 'A framework agreement could clearly establish agreed principles upon which the negotiation of native title applications could occur and deal with strategic and prioritisation issues', Wand, P, and Athanasiou, C, Review of the Native Title Claim Process in Western Australia, Report to the Government of Western Australia, Western Australia Government, Perth, 2001 (hereinafter referred to as the 'Wand Review'), para 9.2.1. The Wand Review encourages working toward such a framework agreement: para 9.2.2.
11. The Protocol was signed by the State of Victoria, ATSIC and Mirimbiak Nations Aboriginal Corporation in Melbourne, November 2000.
12. Further information about these state-wide agreements can be found at www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm
13. Interim Agreement between the Rubibi Working Group and Shire of Broome (1 May 1996), clause 1. Agreement available at NNTT web-site www.nntt.gov.au/nntt/agrment.nsf/7.+Agreements+by+Category?OpenView&Start=1&Count=1000&Expand=3#3 accessed 14 December 2001.
14. Native Title Process Agreement between the Quandamooka Land Council and Redland Shire Council (14 August 1997). Agreement available from NNTT web-site www.nntt.gov.au/nntt/agrment.nsf/1c6f336460dd7c9e4825644200298144?OpenView entitled 'Minjerribah/North Stradbroke Island Native Title Process Agreement', accessed 14 December 2001
15. Extracts of the agreement are contained in 'Agreements, Treaties and Settlements' (1996) Australian Indigenous Law Reporter 1(3), p446.
18. The Cattlemen's Union of Australia was dissolved in June 1999 and was replaced in the agreement by the Peninsula Cattlemen's Association representing the interests of its members on Cape York Peninsula.
19. PJC Inquiry, op cit, evidence of Horner, P, (Commonwealth Attorney-General's Department), Official Committee Hansard, 2 April 2001, pNT255.
20. 'The non-extinguishment principle, as defined by section 238 of the Native Title Act, applies to the grant of the Licence, and to any work done pursuant to that Licence', clause 5.2(a) of Deed Pursuant to Section 31 of the Native Title Act (22 October 2001) between the State of South Australia, Yandruwandha/Yawarrawarrka People, Beach Petroleum NL, Magellan Petroleum (NT) Pty Ltd and Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation). Information about the documents and the negotiations from the South Australian Government web-site www.pir.sa.gov.au/dhtml/ss/section.php?sectID=1288andtempID=8 accessed 27 November 2001.
21. ibid, Schedule 4, Recital, para F in Ancillary Agreement Native Title: Petroleum (October 2001) between the Yandruwandha/Yawarrawarrka People, Beach Petroleum NL, Magellan Petroleum (NT) Pty Ltd and Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation).
22. Referred to by ATSIC Chief Executive Officer, Sullivan, M, PJC Inquiry, Official Committee Hansard, 8 June 2001, pNT321.
23. PJC Inquiry, evidence of Councillor Ross, Official Committee Hansard, 2 April 2001, pNT253.
24. ibid, evidence of Wensing, E, Official Committee Hansard, 9 November 2000, pNT14
25. Yarmirr v Northern Territory and Commonwealth [2001] HCA 56 (11 October 2001).
27. Protocol, op cit, paras A, C and D
28. The NTA defines native title to include 'individual rights of Aboriginal peoples or Torres Strait Islanders': s223(1). However all native title determinations to date recognise only group rights. The issue of individuals' position within the group is, rightly, a matter for the relevant Indigenous community.
29. Building Reconciliation Protocol between Queensland Government and Queensland Indigenous Working Group (13 August 1999) Introduction clause H.
30. Finlayson, J, 'Anthropology and Connection Reports in Native Title Claim Applications' in Land, Rights, Laws: Issues of Native Title (Vol 2, no. 9) Australian Institute of Aboriginal and Torres Strait Islander Studies, 2001, p3.
31. Submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Wand Review of the State Government's "General Guidelines for Native Title Determinations and Agreements" August 2001, p 9. This document can be viewed at www.humanrights.gov.au/social_justice/native_title/index.html#submission
32. Department of Justice, Guidelines for Native Title Proof: Victoria, Government of Victoria, Melbourne, 2001.
37. Wand Review, op cit, para 7.7.1.
38. Articles 1 of both ICESCR and ICCPR, Article 5 of ICERD, Article 1 of the Declaration on the Right to Development (UN document A/RES/41/128), 4 December 1986. See also Article 3 of the draft United Nations declaration on the rights of indigenous peoples (UN document E/CN.4/SUB.2/RES/1994/45), 26 August 1994.
39. O'Faircheallaigh, C, 'Negotiations between mining companies and Aboriginal communities: process and structure', Centre for Aboriginal Economic Policy Research, Discussion Paper 86/1995, p3.
40. Senior, C, 'The Yandicoogina Process: A model for negotiating land use agreements', in Land, Rights, Laws: Issues of Native Title Australian Institute of Aboriginal and Torres Strait Islander Studies, February 1998.
41. O'Faircheallaigh, C, 'Process, Politics and Regional Agreements' in Land, Rights, Laws: Issues of Native Title Australian Institute of Aboriginal and Torres Strait Islander Studies, February 1998, p5.
42. Howitt, R, 'Why is the government negotiating? What drives other stakeholders?' Statewide Native Title Framework Agreement Issues Paper No 1 (October 1999) ALRM, Adelaide, p2.
43. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, Human Rights and Equal Opportunity Commission, Sydney, 2001, pp89-91.
44. For example, 'QML [Queensland Mines Ltd] did not submit annual reviews of its training and employment program to the NLC [Northern Land Council] as required by the Nabarlek [uranium mine] agreement', O'Faircheallaigh, C, 'Negotiations between mining companies and Aboriginal communities: process and structure', op cit, pp17-18.
45. The Exploration Permit Backlog Project: Model Indigenous Land Use Agreement (2001) provides a standard arrangement already negotiated between the Queensland Indigenous Working Group and the Queensland Government. This agreement provides a basis, if accepted by individual claim groups, for pending exploration tenements to be granted in the relevant claim area in return for certain conditions including heritage and environmental protection, and payments to the relevant claim group. Information available from Queensland government website www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm accessed 14 December 2001.
46. ibid., clauses 9.2(b) and Schedule 2.
48. ibid., clause 16, where disputes can be referred to the Queensland Land and Resources Tribunal.
49. Various agreements involving mining companies and Indigenous groups in the Pilbara region of Western Australia provide for a monitoring committee which includes Indigenous and company representatives to oversee the agreement's implementation and assist in any dispute resolution.
50. For example the Building Reconciliation Protocol between the Queensland Government and Queensland Indigenous Working Group, op.cit. The document identifies various areas for negotiation, review and submission. These include matters such as mining agreements, processing of mining tenements under native title laws, management of national parks and incorporation of native title issues into various Queensland legislative schemes. The document specifies that the 'Queensland Government Department of Premier and Cabinet shall be responsible for overseeing the implementation of the Protocol', Introduction clause E.
51. Native Title Process Agreement, Quandamooka Land Council Aboriginal Corporation and Redland Shire Council, op.cit., clause 6.2(b)
53. For example, Protocol for the negotiation of agreement for exploration and mining for New South Wales, op.cit., clause A(5)
54. Jopson, D, 'Title misdeeds', The Sydney Morning Herald, 4 August 2001, p27.
57. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Second Interim Report for the s.206(d) Inquiry: Indigenous Land Use Agreements, Parliament of the Commonwealth of Australia, Canberra, 2001, paras 8.29 and 8.30.
59. Canada, Report of the Royal Commission on Aboriginal Peoples Canada Communication Group Publishing, Ottawa, 1996, Vol 2, Part 1, p44.
60. Martinez, M., Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities (UN document E/CN.4/Sub.2/1999/20), 22 June 1999, para 263.
61. Council for Aboriginal Reconciliation, Reconciliation: Australia's challenge (Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, Commonwealth of Australia, Canberra, 2000, Appendix 3, p163.
62. This option and others are discussed in seminars and papers presented as a Treaty Series, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2001, www.aiatsis.gov.au/rsrch/seminars.htm
