Introduction
The year under review in this, my fourth Native Title Report, is a year in which the High Court has handed down its decision in several significant native title cases thus elucidating the principles upon which the recognition and extinguishment of native title are determined. 2002 marks the end of a ten year period since the Mabo decision [1] first introduced the dual concepts of recognising and extinguishing native title. For ten years the interpretation of their meaning has proceeded in the courts, first through submissions to and decisions by lower courts, then to the appeal process in which further arguments were tested and judged, until their final crystallisation by the High Court. These principles and their effect on the human rights of Indigenous peoples are the subject of this report.
In order to understand the effect of these principles on the day to day lives of Indigenous people it is important to relate them to the broader dialogue on Indigenous issues. This is particularly important because of the failure in Indigenous policy formulation to take native title into account when devising strategies to meet those goals where traditional land, culture and governance structures could play an integral role. Sidelining native title in this way is indicative of a broader trend in Indigenous policy-making under the rubric of ‘practical reconciliation’ and epitomises its failure to recognise rights as a vehicle for transforming the social and economic conditions of Indigenous communities.
My introduction to last year’s Native Title Report discusses the debate, which continues to dominate the ideological battlefield, around rights and the assumptions on which that debate rests. As I indicated there, the debate fails to distinguish between two types of rights relevant to Indigenous people: citizenship rights and inherent rights. An analysis of the arguments reveal that what are actually being attacked as ineffective in halting the spiral of poverty and violence in Indigenous communities, are citizenship rights. While upholding the right of Indigenous people, like all other people, to make choices, such rights have not produced an improvement in Aboriginal people’s lives. Yet no-one is seriously suggesting that the solution to the poverty in Indigenous communities lies in taking away citizenship rights.
As indicated in my previous Report [2] citizenship rights alone are not a tool of social change and indeed, can entrench the inequality that already exists between Indigenous and non-Indigenous people. We need to go further with rights and adopt an approach that aims to achieve substantive equality, not just formal equality, through special measures and the full recognition of Indigenous people’s human rights, including their inherent right to their traditional land.
While this debate continues at an ideological level, certain agreed principles have emerged as fundamental to bringing about the changes necessary to redress the poverty that distinguishes the conditions of Indigenous people’s lives from non-Indigenous.
First, it is generally agreed that for policy or legislation to redress Indigenous disadvantage, Indigenous people need to participate in its formulation and implementation. Participation does not mean consultation. Participation occurs at a fundamental level, in the final decision-making but also in the design, implementation and monitoring of the policy or legislation concerned. As Paul Briggs, a key Indigenous leader in the Shepparton area was reported as saying to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in their Inquiry on Indigenous capacity building, ‘Everyone involved in Indigenous affairs needed to acknowledge the vision that Aborigines had for their own future’. [3] It is essential that the goals that non-Indigenous governments and policy makers have for the future direction of Indigenous people is filtered through the vision Indigenous people have for themselves.
Second, for Indigenous people to move out of the cycle of poverty, they need to establish, in their communities or in the areas in which they live, a sustainable economic base. This economic base must generate sufficient wealth to provide meaningful employment and move the Indigenous people driving it out of poverty. A concomitant of the development of an economic base is the development of a social and technical infrastructure necessary to sustain it. This includes a reduction in the consumption of drugs and alcohol to a level compatible with a productive working day and adequate housing, health and educational facilities.
What then does native title have to do with these necessary conditions for social and economic transformation in Indigenous communities? In order to answer this question it is necessary to understand the significance of the relationship on which native title is based, the relationship between Indigenous people and their traditional land.
The depth of this relationship is conveyed in the account in chapter 4 of the relationship between the peoples of the Western Desert and their homeland, a place where their spirit and their ancestor’s spirit belong. While particular features of their relationship to the land may be unique it shares some important common features with the relationship that other Indigenous people around the world have with land.
These common features have been summed up in a number of informative and educative United Nations reports on the relationship of Indigenous people to their land, submitted through the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. [4] The one point on which these reports are all consistent is their recognition of the unique and fundamental relationship that Indigenous people have with their land. Professor Erica-Irene Daes tabled her final report of the study entitled Indigenous people and their relationship to land in June 2001. [5] Prof Daes has noted:
Since the establishment of the Working Group on Indigenous Populations, indigenous peoples have emphasised in that forum the fundamental nature of their relationship to their homelands. They have done so in the context of the urgent need for understanding by non-indigenous societies of the spiritual, social, cultural, economic and political significance to indigenous societies of their lands, territories and resources for their continued survival and vitality. In order to understand the profound relationship that indigenous peoples have with their lands, territories and resources, there is a need for recognition of the cultural differences that exist between them and non-indigenous people, particularly in the countries in which they live. Indigenous peoples have urged the world community to attach positive value to this distinct relationship. [6]
On the basis that land continues to have a spiritual, social, cultural, economic and political significance to Indigenous people, what role does this relationship play in the key triggers identified for change in Indigenous communities: participation and economic development?
Participation. The process by which Indigenous communities participate in the development of policies and laws that seek a change in that community’s direction requires an understanding of the way in which the political structures and authority that emanate from the traditional relationship of Indigenous people to land continues to shape that community. Thus, for instance, traditional owners may continue to hold authority, especially in matters of traditional law and custom, even though a range of non-traditional political structures may provide an interface between the community and the non-Indigenous system. The interaction of these levels of authority within the Indigenous community and the obligations and responsibilities associated with Indigenous decision-making at all levels need to be taken into account in order to ensure full and effective participation has occurred.
Another important way in which the traditional relationship to land shapes the participation process is in its contribution to the definition of the geopolitical entity through which policies which seek to transform Indigenous social and economic relationships are directed, i.e., the region. Regional plans, regional agreements and regional progress must be developed with a thorough understanding of the boundaries as they are influenced by traditional law and custom. So too this understanding underlies the participation of Indigenous people in the formulation and implementation of these plans and agreements occurring on a regional basis. [7]
Economic development. The second necessary condition to transforming Indigenous communities, economic development, while often posited as unrelated, or indeed antithetical to the traditional relationship that Indigenous people have to their land, in my view, requires a thorough understanding of this relationship.
In the first place, ownership of land, including traditional ownership, can be viewed as ownership of an asset from which development can take place. This is illustrated by the recent agreements on the Burrup Peninsula which provide monetary benefits, employment and training opportunities to the native title groups in the area while at the same time protecting their heritage and culture. These types of arrangements, found between many native title claimant groups and industry, involving varying degrees of wealth and benefit, can be identified as a result of the legal recognition given to the traditional relationship that Indigenous people continue to have with their land.
However, the extent to which recognition of the traditional relationship of Indigenous people to their land can provide direct economic benefits to the vast majority of Indigenous people in Australia is limited. Not all traditional land will have inherent economic value, and not all Indigenous people can qualify as traditional owners of land entitled to the economic wealth that land may generate through a native title agreement.
There is another benefit, an indirect one but nevertheless significant, that the recognition of traditional relationships to land can contribute to the development of an economic base for Indigenous people. This benefit comes from an understanding of the relationship between economic development and the social, cultural and environmental context in which development takes place.
Sustainable development has emerged as a new paradigm of development, integrating economic growth, social development and environmental protection as interdependent and mutually supportive elements of long-term development. The concept of sustainable development recognises that economic development is not just the exploitation of resources wherever they happen to exist, but also must take account of the relationships in which development occurs, including the cultural values of the community.
The relationship of Indigenous people to their land is widely recognised as a basis for their cultural values and identity and as such must be taken into account in the policies aimed at achieving sustainable economic development. Obvious examples of economic development founded on the traditional cultural values of a community are the initiatives around tourism and Indigenous art. However the notion of sustainable development does not require that industries be restricted to particular types, but that all developments, from mining to tourism, take account of the needs of the cultural values of a community and occurs with their informed consent.
Native title provides an important frame of reference by which participation and economic development can transform the conditions of Indigenous people’s lives. Yet its capacity to contribute to this process has been hampered, first by the legal system that operates to restrict rather than maximise these outcomes and second by the failure of government to integrate native title into the range of policy options available in achieving this goal.
This year’s Native Title Report analyses the restrictions placed on the capacity of native title to achieve outcomes for Indigenous people through its construction in the legal system. The focus in chapter 1 of the Report is on the tests established in the decisions of Yarmirr, [8] De Rose, [9] and Yorta Yorta, [10] and the recognition of native title. Emerging from these decisions is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their cultural and property rights, but rather one where the law becomes a barrier to their enjoyment and protection.
One tier of this barrier is constructed by a notion of sovereignty that denies the law-making power of Indigenous people after its acquisition by the British Crown. Thus the infrastructure that supports the rights and interests recognised in native title law by s223(1) of the Native Title Act 1993 (Cwlth) (‘NTA’), the traditional laws and customs, is not a functioning system but one which ceased to operate from the time that British sovereignty was imposed. The rights and interests recognised in NTA s223(1) as native title, must be created by traditional laws and customs existing prior to British sovereignty.
The second tier of this barrier is constructed by limiting the recognition of native title to only rights and interests separated from the traditional laws and customs which created them. Without recognition of the traditional laws and customs that create them, native title rights and interests are a bundle of rights, able to be eroded one by one whenever their exercise is inconsistent with the rights and interests created by the laws of the non-Indigenous legal system.
The third tier in the barrier to Indigenous people gaining recognition and protection of their traditional rights and interests in land as they are observed and acknowledged in contemporary society, is the difficulty of proving the elements that constitute the statutory definition of native title. While the recognition of native title is restricted to rights and interests disconnected from the traditional laws and customs, in order to obtain this limited recognition the native title claimants must prove that those rights and interests are possessed under traditional laws and customs acknowledged and observed by the claimant group. In other words, traditional laws and customs are an element of the proof of native title but they are not an element of its recognition. Moreover, the standard and burden of proving this element is very high.
This standard of proof stems from a fundamental tenet of the High Court’s interpretation of s223(1) that the laws and customs of Indigenous people are a body of norms or a normative system under which rights and interests are created. [11] A normative system of laws, it is said, gets its identity from being observed and acknowledged by a society. Moreover it is the observation and acknowledgement of laws and customs that define a particular society. The two, laws and society, are thus inextricably linked. The establishment of the existence of a body of traditional laws and customs prior to sovereignty requires proof of continuous observance and acknowledgement of those laws and customs since sovereignty. In order to prove this, native title claimants must also prove that the transmission of these traditions and customs was from one society to the next.
The NTA and the common law construct native title in a society that must exhibit a vital and ongoing relationship with its laws even though the regenerative capacity of these laws has been removed by the imposition of sovereignty. Then, if such a society can be shown to exist, the recognition of native title is limited to the rights and interests that emanate from such laws. This is the final tier in the barrier preventing native title from giving real outcomes to Indigenous people in contemporary society: this requirement to exhibit vitality while at the same time denying its recognition.
Such a construction also denies the place that Indigenous culture has for Indigenous people in contemporary Australian society. Society, Indigenous and non-Indigenous, cannot be finally determined through the laws observed but exist in a plurality of social, political and legal spaces, changing as the context changes. In this dynamic relationship between law, society and identity, Indigenous culture can still be a vital and transformative force, even though it can interchange with non-Indigenous culture. It is this vitality that has been removed in the construction of native title presented by the High Court.
While the Yorta Yorta decision has clarified the tests for recognition of native title, the High Court decisions in Miriuwung Gajerrong [12] and Wilson v Anderson [13] have provided clear principles on how native title is extinguished at law.
Chapters 2 and 3 of the Report seek to delineate these principles in order to participate in and progress a long-standing debate concerning the extinguishment of native title. The central issue in this debate is whether the extinguishment of native title, as it occurs under Australian law, is racially discriminatory. It is an important debate about the ethical underpinnings of a legal regime which gives recognition to the inherent rights of Indigenous people.
The test which the High Court adopted in Miriuwung Gajerrong to determine whether laws or acts which create rights in third parties extinguish native title, either completely or partially, requires a comparison to be made between the legal nature and incidents of the rights created by statutory or executive acts and the native title rights arising out of traditional law and custom. Where there is an inconsistency between these two sets of rights then native title is either completely extinguished or extinguished to the extent of the inconsistency.
The result of applying this inconsistency test is that the native title rights most susceptible to extinguishment by the creation of non-Indigenous interests are exclusive rights, such as the right to control access to country. On the other hand the native title rights that best survive this test are ones expressed at a high level of specificity, limited to the conduct of activities on the land rather than the control of activities on the land, and confined to traditional activities rather than contemporary activities.
Underlying the inconsistency test is a hard and driving logic: either the rights compared are consistent or they are inconsistent. If consistent, native title continues. If inconsistent, native title is extinguished. Glaringly absent from this logic is the possibility of co-existence, where rights are negotiated and mediated to enable a diversity of interests to be pursued over the same land. The idea that the law could assist to build relationships rather than separate interests was not explored. Yet, before the High Court for their consideration was a range of legal options which could underpin a co-existence approach.
These alternatives were not taken up by the High Court primarily because of the pre-eminence given to the way in which native title was extinguished through the statutory framework of the NTA. The prescription of extinguishment in the confirmation and validation provisions of the NTA mandated an approach in which native title could be extinguished partially or completely. In addition, the Court found that the non-extinguishment principle had no operation in the common law principles of extinguishment and were limited in application to the provisions of the NTA. [14] The principles of extinguishment outlined in the Court’s decision in Miriuwung Gajerrong are a result of the Court’s interpretation of both the statute and the common law working together to determine the full extent of extinguishment under Australian law.
Chapter 3 subjects these principles of extinguishment to the tests of discrimination that were reiterated and affirmed in the Miriuwung Gajerrong decision. An analysis of the domestic law of discrimination under the Racial Discrimination Act 1975 (Cwlth) within the decision that establishes the principles of extinguishment of native title, provides a sharp contrast between the non-discriminatory approach to the protection of native title and that being affirmed.
The principles underlying a non-discriminatory approach to the protection of native title are set out at Annexure 1. In summary, a non-discriminatory approach measures the extent to which the law permits Indigenous property rights to be enjoyed against the extent to which the law permits the enjoyment of other property rights. Thus the law must provide native title with the protection necessary to ensure it can be enjoyed, according to its tenor, and to the same extent as non-Indigenous interests in land. Even where property rights like native title are unique in their origin and characteristics, discrimination is found not by comparing these characteristics with the characteristics of non-Indigenous property rights but by comparing the extent to which the property rights are able to be enjoyed, regardless of the characteristics of each. The content of traditional law and custom does not have to be unpacked and compared with non-Indigenous interests, as it is in the inconsistency test. It is only the protection provided by the law as it applies to Indigenous property rights and non-Indigenous property rights that requires comparison.
Constructed in a non-discriminatory way, native title law should be a vehicle for the continued enjoyment and protection of Indigenous property and culture and can contribute to the transformation that has been identified as necessary in redressing the spiral of poverty that besets Indigenous communities.
Chapter 4 of the Report discusses the impact of the law of native title, particularly in relation to extinguishment in the Miriuwung Gajerrong and Wilson v Anderson decisions. The extinguishment of native title by the creation of perpetual grazing leases in the Western Division of New South Wales and the creation of nature reserves in Western Australia, highlight the implications of these decisions on the human rights of Indigenous Australians. This chapter also discusses measures to ameliorate the effects of findings of extinguishment.
Now that the principles of recognition and extinguishment have been crystallised by the High Court and the effect of these principles on the day to day lives of Indigenous people is known, it is urgent that the law be evaluated against the human rights standards that Australia is committed to maintaining. Chapter 5 outlines the way in which human rights principles can direct the changes that are required to make our domestic law consistent with international law.
There are various levels at which reform of the native title system can take place. The most obvious level is the legislative one, given that the NTA controls the level of protection afforded native title. Clearly changes would have to occur at this level although the recognition and protection of native title may not ultimately depend on legislation. For instance, the recognition and protection of Indigenous rights to land may be enshrined in a treaty or agreement which supersedes statutory rights. Alternatively rights might be protected on a number of levels with ultimate protection residing in the Constitution.
In considering reform at this level I do not seek to map out every possible or preferred legislative amendment to the NTA. Rather I seek to identify broad areas in which reform is required and underlying mechanisms by which injustices can be redressed. Against this approach of reforming the present system must be weighed the benefits of enshrining Indigenous rights to land in a completely different protective system to that which presently exists, such as an arbitral system suggested by Justice McHugh in Miriuwung Gajerrong. [15] While consideration of such alternative systems is beyond the scope of this report, they must be seriously considered in view of the legal tests established to gain recognition of native title and the difficulty of changing the fundamental assumptions of these tests within the current system as it is governed by the NTA.
A similar process of evaluation is required at the political level. This is particularly pressing in view of the Court finding in Miriuwung Gajerrong that the NTA rather than the common law directs the native title processes of extinguishment and recognition, confirming the primary role of the Commonwealth in the protection of native title. The Commonwealth must now accept responsibility for the law as it stands and, equally importantly, re-evaluate the means by which the law can be changed to make it consistent with Australia’s international law obligations.
However, even if human rights standards are not accepted as the benchmark for evaluating and changing the native title system, the agreed goals of increasing participation of Indigenous people in determining their own future and establishing an economic base in Indigenous communities, would require that every option that meets these goals, including the inherent rights of Indigenous people to the recognition of their traditional relationship to land, be utilised to their greatest potential.
1 Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1.
2 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001, Human Rights and Equal Opportunity Commission, Sydney, 2002, p9.
3 The Age newspaper, 26 September 2002, p11.
4 E Daes, Indigenous peoples and their relationship to land, United Nations document number (‘UN doc’) E/CN.4/Sub.2/2001/21, 11 June 2001; M Martinez, Study on treaties, agreements and other constructive arrangements between States and indigenous populations, E/CN.4/Sub.2/1999/20, 22 June 1999; M Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN doc E/CN.4/Sub.2/1986/7/Add.4.
6 E Daes, Indigenous peoples and their relationship to land, UN doc E/CN.4/Sub.2/2000/25, 30 June 2000, para 11.
7 See Native Title Report 2001, op.cit., pp87-105; and C O’Faircheallaigh, ‘Process, Politics and Regional Agreements’ in Land, Rights, Laws: Issues of Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, February 1998.
8 Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (11 October 2001).
9 De Rose v State of South Australia [2002] FCA 1342 (1 November 2002).
10 Members of the Yorta Yorta Aboriginal Community v Victoria & o’rs [2002] HCA 58 (12 December 2002).
12 Western Australia v Ward and o’rs [2002] HCA 28 (8 August 2002).
13 Wilson v Anderson and o’rs, [2002] HCA 29 (8 August 2002).
19 March 2003.
