Native Title Report 2002: Summary

Summary - Native Title Report 2002

The High Court's decisions in Yarmirr [1], Miriuwung Gajerrong [2], Wilson v Anderson [3] and Yorta Yorta [4] clarify the law with respect to the recognition and extinguishment of native title. The consequences of the law of native title for Indigenous people are now starkly apparent. It is thus timely that the 2002 Native Title Report evaluates these principles against the human rights standards to which Australia is committed under international law. Such an evaluation reveals fundamental shortcomings within the native title system. Reform is necessary to ensure that the law of native title is consistent with international law and while this can occur through legislative amendment at the State or Federal level, other approaches, such as regional agreements, can also provide a means by which Indigenous rights and interests are recognised and protected.

Chapter 1 - Recognition of native title

Emerging from the High Court decisions in Yarmirr, Miriuwung Gajerrong and Yorta Yorta, is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their culture and property rights, but rather one where the law becomes a barrier to their enjoyment and protection. The recent Federal Court decision in De Rose also demonstrates this trend towards limiting the recognition of Indigenous relationships to land. These decisions are inconsistent with international law which requires a State to maintain and protect Indigenous culture, to ensure racial equality and to ensure the effective participation of Indigenous people in decisions that affect them.

The evaluation of these decisions in the Native Title Report 2002 focuses on the way in which the Court has interpreted the statutory definition of native title under s223(1) of the Native Title Act. The report notes:

the requirement under the Native Title Act that Indigenous laws and custom be translated into a bundle of native title rights and interests diminishes the legal recognition given to the profound relationship Indigenous people have with their land;
the recognition of native title excludes recognition of the traditional laws and customs by which those rights and interests were created;
the recognition of native title excludes recognition of the law-making capacity of Indigenous people;
the recognition of native title is limited to the rights and interests created under the traditional laws and customs prior to sovereignty;
the Court's interpretation of s223(1)(a), which requires observance and acknowledgement of traditional laws and customs, operates to exclude the contemporary manifestation of Indigenous culture by requiring that such observance and acknowledgement be uninterrupted since the acquisition of sovereignty, by a society which has been in continuous existence since sovereignty;
the Court's interpretation of s223(1)(b), which requires that Indigenous people have a connection to the land operates to exclude claims which cannot show a high level of cultural knowledge about and connection to a specific area of land;
the requirement that rights and interests be recognised by the common law under s223(1)(c) has resulted in the non-recognition of important sea rights.

In Yorta Yorta the Court's construction of sovereignty forbids the recognition of two law-making entities, Indigenous and non-Indigenous. This has important consequences for the recognition of native title. The Court reasoned that the Indigenous law-making system became defunct upon British sovereignty and as a result native title is limited to rights and interests created prior to the imposition of British sovereignty.

Such a finding is at odds with important human rights principles as they apply to Indigenous peoples, particularly Indigenous peoples' right of self determination. It is also inconsistent with decisions in Canada and North America where the imposition of British sovereignty, while diminishing the right of Indigenous people to govern themselves, continues to allow this in various forms.

The High Court's approach also confines native title rights and interests to those that were exercised prior to the acquisition of sovereignty and requires that native title be understood as 'a bundle of rights', as explained by the High Court in Miriuwung Gajerrong. The Report states; 'the bundle of rights metaphor is a construction of native title which epitomises the disintegration of a culture when its law-making capacity, that is its sovereignty, is neatly extracted from it. This metaphor creates an inherently weak title, enabling parts of native title to be extinguished easily and in a piecemeal way.'

Chapter 2 - Extinguishment of Native Title

The law in relation to the extinguishment of native title is clarified in the High Court's decisions in Miriuwung Gajerrong and Wilson v Anderson. The Court made it clear at the outset that the primary source for determining the extinguishment of native title is the Native Title Act and in particular the distinction between complete and partial extinguishment contained in the confirmation provisions of the Act. Native title is extinguished either completely or partially wherever an inconsistency arises between the enjoyment of rights to land created by the non-Indigenous legal system and the enjoyment of rights over land created by the traditional laws and customs.

From a human rights perspective the extinguishment of native title as it occurs in the Australian legal system gives rise to a number of concerns.

First, the 'inconsistency of incidents test' fails to provide for the co-existence of interests and instead excludes native title whenever an inconsistency occurs. Other options, such as that suggested by Justice North in the Full Federal Court appeal of the Miriuwung Gajerrong case, allow for the suspension of native title for the duration of the inconsistency and thus provide a basis for co-existence between Indigenous and non-Indigenous interests. Justice North's position was rejected by the High Court.
Second, the legislative mechanisms under the Native Title Act for controlling the extinguishment of native title by the creation of tenures are utilised only to prescribe the extinguishment of native title. The Report provides a useful table which outlines the number and type of tenures which extinguish native title under the Native Title Act in the Miriuwung Gajerrong and Wilson v Anderson decisions.
Third, the Native Title Act fails to limit the extinguishment of native title resulting from the creation of tenures other than those specified in the Native Title Act, even though mechanisms are available to control this at a legislative level. The Report recommends that the non-extinguishment principle be utilised to limit the extinguishment of native title and ensure the survival of Indigenous interests on land, particularly in respect of nature reserves.
Fourth, the Native Title Act fails to limit the extinguishment of native title by tenures which are no longer current. The Report tabulates the historic tenures that operated to extinguish native title rights in the Miriuwung Gajerrong case. Utilisation of the non-extinguishment principle would overcome the extinguishing effect of these tenures without interrupting the enjoyment by non-Indigenous people of their current proprietary interests.
Finally, there is no provision for compensation for the extinguishment of native title under the confirmation provisions of the Native Title Act except in limited cases (where the Racial Discrimination Act would apply to invalidate the tenure). There is no compensation for the extinguishment of native title by the operation of the common law, except after 1975 where the Racial Discrimination Act would operate to provide this. The failure of the government to implement the social justice package proposed in 1993 as a complement to the Native Title Act makes the compensation issue crucial. Protection against the arbitrary deprivation of property is a fundamental tenet of both the domestic and international legal system and should be available to Indigenous as well as non-Indigenous titleholders.

Chapter 3 - Discrimination and native title

At its fundamental level, the extinguishment of native title, whereby pre-existing Indigenous interests give way to newly created non-Indigenous interests, is discriminatory. The 2002 Native Title Report examines the way in which the High Court applies the Racial Discrimination Act to the creation of tenures after 1975 and its effect on native title rights. The report concludes that, on the High Court's own analysis, the extinguishment of native title, both under the Native Title Act and at common law, is not only discriminatory at international law but fails to meet the standards of equality under domestic law.

A non-discriminatory approach to the protection of native title 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. Constructed in this way, native title law should be a vehicle for the continued enjoyment and protection of Indigenous law and culture.

The Commonwealth has the legislative capacity to limit the extent to which extinguishment affects Indigenous interests in land and to ensure compliance with international and domestic standards of equality, recognition and respect for Indigenous cultural identity and non-discrimination. These standards can be applied to both recognition and extinguishment of native title

Chapter 4 - Implications of Miriuwung Gajerrong and Wilson v Anderson

The findings of the High Court in Miriuwung Gajerrong and Wilson v Anderson result in the extinguishment of native title over a significant area of land. In New South Wales, the finding that perpetual grazing leases completely extinguish native title will affect 15 out of the 20 native title applications lodged in the Western Division. In Western Australia, where eight percent of the state is held within the conservation estate, the extinguishment of native title on nature reserves will affect many Indigenous people. Such findings undermine the exercise and enjoyment of culture under Article 27 of ICCPR and seriously inhibit the exercise of rights of self determination and effective participation in relation to traditional country. The finding in Western Australia on nature reserves is also at odds with contemporary values of conservation, sustainability and non discrimination. Such incongruity invites a policy response. In consideration of these issues the 2002 Native Title Report offers a policy framework, supported by key human rights standards, that may assist the Western Australian Government and Aboriginal groups in achieving a just and appropriate resolution of this finding.

Similarly the effect of extinguishment on the human rights of Aboriginal people in western New South Wales mandates a policy response that acknowledges the continuing relationship of Aboriginal people to their traditional land and provides a mechanism to ensure the protection, enjoyment and recognition of this relationship. Regional agreements provide a framework to address outstanding issues of caring for country, being on country and building communities.

Chapter 5 - Native title: the way forward

The clarification of the principles of recognition and extinguishment of native title by the High Court marks the end of the developmental phase of native title law. The 2002 Native Title Report finds that the law fails to meet the human rights standards required at international law. It is thus appropriate that a process of re-evaluation takes place at the political level. This is particularly pressing in view of the Court finding in Miriuwung Gajerrong that the Native Title Act 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. Responsibility for the protection of native title can no longer be conveniently shifted between the legislature and the common law. The Commonwealth must now accept responsibility for the law as it stands and, equally important, re-evaluate the means by which the law can be changed to make it consistent with Australia's international law obligations.

From a human rights perspective there are two factors which must direct the reform of the native title system. First, all decisions affecting native title must be taken with the free and informed consent of Indigenous people. This requires the establishment of a process for the effective participation of Indigenous people as part of the broader reform process. Where the capacity of Indigenous people to participate is hampered, either through limited resources or limited decision-making structures, provision must be made to address these deficiencies to enable genuine negotiation to take place. Second, the benchmarks for reform must be the human rights of Indigenous people.

The chief mechanism by which the Native Title Act effects both the protection of native title and its extinguishment is through prescribing what State and Territory laws are valid and the conditions and effect of their validity. State and Territory governments are then authorised to enact legislation which extinguishes native title in accordance with the NTA. Thus there are two legislative tiers by which the extinguishment of native title takes place: first at the level of Commonwealth legislation and the nature of the authority that this legislation gives to State and Territory governments; and second at the level of State and Territory legislation and the enactment of legislation that extinguishes native title. There is a third tier by which the extinguishment of native title may take place; through agreements between stakeholders. These three tiers need to be addressed in any reform process.

Tier One: Amending Commonwealth Legislation

The process of amending the Native Title Act to make it consistent with human rights principles must utilise the mechanisms of 'validity' and 'invalidity' to redress the balance between protection and extinguishment controlled by the Act. These mechanisms determine the nature and extent of the laws that can have an extinguishing effect on native title. As the High Court said in Western Australia v The Commonwealth [5], a law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate.

The 2002 Native Title Report recommends that rather than validating or prescribing the extinguishing effect of non-Indigenous tenures on native title the Native Title Act should prescribe the non-extinguishing effect of the majority of tenures. The non-extinguishment principle provides for the co-existence of native title and other interests allowing non-Indigenous interests to be given full enjoyment and Indigenous interests to be suspended where their enjoyment is inconsistent with the creation or enjoyment of non-Indigenous interests and then to resume on their cessation. While the non-extinguishment principle still prioritises non-Indigenous interests over Indigenous ones, it is nevertheless far preferable to the permanent extinguishment of native title. It is a principle that should replace the finality and permanency of extinguishment for the majority of tenures.

Thus, in relation to non-exclusive leases for instance, the Native Title Act would need to stipulate that the non-extinguishment principle applied rather than leaving this to the common law. Another tenure that would require identification in this way is a mining lease, which in the Miriuwung Gajerrong decision was found to permanently extinguish particular native title rights and interests, even though, in the validation provisions of the Native Title Act, the non-extinguishment principle applies. This disjuncture could be resolved through legislative amendment in the way suggested.

In relation to nature reserves in Western Australia, found by the High Court to extinguish native title completely, the concern is raised that the non-extinguishment principle, which allows non-Indigenous interests to prevail over native title, may not be appropriate to promote the full enjoyment of native title rights. Interests that complement each other in this way must be identified and specifically addressed in the Native Title Act to ensure full enjoyment of the traditional connection that Indigenous people have with the land.

Tier Two: Amending State and Territory Legislation

The Native Title Act, through the validation and confirmation provisions, stipulates that the effect of creating specified tenures or classes of tenures is to extinguish native title either completely or partially. Under this authority, State and Territory governments are left to enact legislation which extinguishes native title in respect of these tenures. Without this authority, State and territory legislation extinguishing only native title interests would be discriminatory and invalid under the Racial Discrimination Act.

While States and Territories are given immunity from the operation of the Racial Discrimination Act by the Native Title Act, they are not required by the Native Title Act to enact discriminatory legislation extinguishing native title in respect of the tenures specified therein. Thus the States have capacity to redirect native title towards a non-discriminatory goal by controlling whether, or the extent to which native title is extinguished or impaired by the creation of these specified tenures.

A framework for negotiations between the Western Australian government and Aboriginal stakeholders in relation to conservation estates, including nature reserves, is proposed in chapter 4. Importantly any such negotiation process, whether it involves amending State and Territory legislation or reaching an agreement requires the effective participation of Indigenous stakeholders and, through this process, their informed consent.

Tier Three: Agreements

A concept which appears to be given general support from government, industry and Indigenous parties alike, is the benefit of negotiating native title, its recognition and its relationship to other interests on the land, through agreement rather than litigation. This process can include the making of a native title determination by the Federal Court with the consent of the parties. Agreements, framed by human rights principles rather than discriminatory principles contained in the Native Title Act, are an important tool for providing a stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land.

Now that the key principles guiding the law of native title have been crystallized by the High Court and the implications of these decisions are being felt by Indigenous people, a re-evaluation of the law needs to occur at the political level. Human rights principles should be at the forefront of such a process.