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2000
Native Title Report summary

By Dr William Jonas AM, Aboriginal
and Torres Strait Islander Social Justice Commissioner

The reconciliation
process has made clear the pressing need for Aboriginal peoples to negotiate
freely the terms of their continuing relationship with Australia. The
report shows that the recognition of Indigenous people's right to their
land and the origins of a nation are inextricably related and that changes
to one part of the relationship infer and require changes to the other.
Developments in native title law reflect upon the ethical foundations
of the nation.(p44)

• Overview
• Nation
  in Dialogue
• Definition
  and extinguishment of native title by the common law
• Native
  title and sea rights
• Indigenous
  Heritage
• Implementing
  the ammendments

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Overview

The 2000 Native Title
Report of Dr Jonas, Aboriginal and Torres Strait Islander Social Justice
Commissioner, finds that Australian law of native title, both the common
law and statute provide insufficient protection to the relationship that
the Indigenous peoples of Australia have with their traditional land and
sea country. In Australia, non-Indigenous interests will always prevail
over Indigenous interests in the same area. While this discriminatory
treatment of Indigenous peoples is of concern what is even more worrying
is that, even where minor clashes occur between Indigenous and non-Indigenous
rights, native title will be extinguished forever in order to give non-Indigenous
interests full enjoyment of their title. Both the common law and the legislation
governing native title permit this extreme discrimination to occur.

The Native Title
Report analyses in chapter 2 the way in which the construction of native
title as a bundle of rights by the majority of the Court in the Miriuwung
Gajerrong case renders Indigenous rights vulnerable to discriminatory
extinguishment whenever an inconsistency with non-Indigenous rights arises.
Thus the erection of a fence on pastoral leasehold land is seen as inconsistent
with the exercise of any native title rights and will extinguish native
title forever. A more resilient construction is offered in a depiction
of native title as a right to traditional land. The deep spiritual relationship
between Indigenous people and their land allows native title to survive
the grant of many Indigenous interests even though native title rights
cannot be exercised for a period of time. In this way Indigenous and non-Indigenous
people are able to co-exist on the same land.

The Report in chapter
3 compares the recognition that both the common law and the Native Title
Act give to traditional relationships to sea country with the recognition
that is given to traditional relationships to land. The decision of the
Full Federal Court in the Croker Island case is analysed in the Report
as an example of how the legal system imposes severe limitations on the
recognition of traditional fishing rights and the spiritual connections
that exist between the Indigenous native title groups and the sea. The
level of protection provided is inadequate to ensure the survival of Indigenous
culture and Indigenous marine economy.

Also discussed, in
chapter 4, is the failure of the Native Title Act and the common law to
give protection to Aboriginal heritage. While the recognition of native
title offered an opportunity to reframe the protection of Indigenous heritage
within the broader framework of a human right to enjoy one's culture,
governments have squandered this opportunity. The amendments to the NTA
take heritage out of the native title framework of rights and relegate
it to inadequate targeted legislation that conceives of Aboriginal heritage
as a relic of a dying civilisation. The recommendations of the Evatt Report
to reform Aboriginal heritage legislation so as to provide better protection
to Aboriginal culture have been largely ignored in the proposed amendments
to the Aboriginal heritage Act.

The Report, in chapter
5, expresses deep concern at the reduction of procedural rights under
the amended Native Title Act. The few opportunities that native title
holders have under the Act to advise governments, mining companies and
developers of the nature of their traditional links with the land and
the adverse impact that might result from specific developments have been
interpreted to have little value in the decision-making process. Neither
government nor private decision-makers are compelled to take Indigenous
concerns into account. Moreover where Aboriginal peoples' procedural rights
are completely ignored actions and decisions that adversely affect native
title rights are valid nonetheless. The report concludes that procedural
rights under the Native Title Act provide only nominal protection to native
title holders.

The Report's criticism
of the Native Title Act and its interpretation in the courts is based
on international human rights norms contained in various treaties to which
Australia is a signatory. The principles of equality, self-determination,
and respect for cultural differences are discussed and applied to the
issues discussed in chapter one of the Report. The committees that oversee
the implementation of international human rights treaties have also criticised
Australia's failure to provide proper protection to Indigenous relationships
to their traditional lands.

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Chapter
1: Nation in Dialogue

In 1999 and 2000
two United Nations human rights treaty bodies criticised the 1998 amendments
to the Native Title Act for curtailing the rights of Indigenous people.
The Committee on the Elimination of Racial Discrimination (the CERD Committee)
found that the amendments to the NTA were discriminatory and recommended
that Australia either suspend implementation of the 1998 amendments or
amend the NTA anew. The Human Rights Committee (the HRC) also expressed
concern at the way in which the amendments limit the rights of Indigenous
people contrary to the International Convention on Civil and Political
Rights.

Chapter 1 of the
Native Title Report details the dialogue throughout 1999 and 2000 between
the government, the United Nations and non-government organisations over
native title.

In particular the
CERD Committee noted:

• The reduced protection
  of the rights of native title claimants throught the devolution of power
  to states and territories to legislate over the 'future acts' regime
• the unsatisfactory
  government response to Committee Decisions 2(54) (March 1999) and 2(55)
  - the requirement that Australia ".ensure effective participation by
  indigenous communities in decisions affecting their land rights, as
  required under article 5(c) of the Convention and General Recommendation
  XXIII of the Committee, which stresses the importance of the ensuring
  the 'informed consent' of indigenous peoples."

The Human Rights
Committee's concerns in relation to native title and the amendments to
the NTA were based on Australia's obligations under articles 1 and 27
of the Covenant.

The HRC noted:

• that sufficient
  action has not been taken in regard to 'the principle of indigenous
  peoples exercising meaningful control over their affairs'.

The
HRC further stated that:

. despite
positive developments towards recognising the land rights of the Aboriginals
and Torres Strait Islanders through judicial decisions (Mabo 1992, Wik
1996) and enactment of the Native Title Act of 1993, as well as actual
demarcation of considerable areas of land, that in many areas native title
rights and interests remain unresolved and that the Native Title Amendments
of 1998 in some respects limits the rights of indigenous persons and communities,
in particular in the field of effective participation in all matters affecting
land ownership and use, and affects their interests in native title lands,
particularly pastoral lands.

On the
basis of this observation the HRC made the following recommendation:

.. that
the State party take further steps in order to secure the rights of its
indigenous population under article 27 of the Covenant. The high level
of the exclusion and poverty facing indigenous persons is indicative of
the urgent nature of these concerns. In particular, the Committee recommends
that the necessary steps should be taken to restore and protect the titles
and interests of indigenous persons in their native lands, including by
considering amending anew the Native Title Act, taking into account these
concerns.

While
the international dialogue on native title has elevated the overall level
of understanding within the community and within government of the meaning
of equality in relation to Indigenous people it has not resulted in the
removal of the discriminatory provisions within the Native Title Act.
What has resulted from the dialogue is a shared understanding that equality
does not mean treating Indigenous people the same as non-Indigenous people.
Native title is a unique interest in land that can only be enjoyed by
Indigenous people. Equality requires that this unique interest be given
equal protection to that extended to non-Indigenous interests in land.

The
reconciliation process has also provided a domestic forum for an ongoing
dialogue about Indigenous rights. The Report discusses the various avenues
by which a new relationship between Indigenous and non-Indigenous people
can be established based on rights.

The
analysis shows that the recognition of Indigenous people's right to their
land and the origins of a nation are inextricably related and that changes
to one part of the relationship infer and require changes to the other.
Developments in native title law reflect upon the ethical foundations
of the nation. (P44)

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Chapter
2: Definition and extinguishment of native title by the common law

The present state
of Australian law of native title, both common law and statute, falls
well short of international human rights standards. It is incumbent upon
both the common law and the legislature to ensure that native title is
a vehicle for the protection of Indigenous culture by non-Indigenous law,
not a means for its debasement.

Chapter 2 discusses
the recognition of native title rights to land under the common law and
the Native Title Act.

The Full Federal
Court decision in the Miriuwung Gajerrong case had significant
implications for the construction of and extent of the right recognised
as native title and the relative ease or difficulty of its extinguishment.
There is no doubt that the final outcome of the issues before the court
in the Miriuwung Gajerrong case will affect the human rights of
Indigenous people throughout Australia.

The construction
of native title at common law is important because it determines whether
Indigenous interests in land are capable of withstanding the grant of
non-Indigenous interests created throughout the history of colonisation
in Australia. The survival of Indigenous interests in land is central
to the survival of Indigenous culture throughout Australia. If native
title is constructed as a weak title at common law it will be extinguished
by the creation of non-Indigenous interests and the culture that is sustained
by that land will end. If native title is constructed as a strong title
then it will survive the creation of these interests and Aboriginal culture
will endure.(p47)

In the Miriuwung
Gajerrong case two constructions of native title were advanced; native
title as a bundle of distinct and unrelated rights to perform physical
activities on the land or native title as an holistic interest in land
upon which other rights, such as rights to perform physical activities,
depend. These constructions have different consequences for the strength
of the native title recognised and its liability to extinguishment by
grant of an inconsistent interest.

Chapter 2 evaluates
these constructions of native title by reference to international human
rights standards.

The principle of
equality requires that the law accord native title holders the same level
of protection and security in the enjoyment of title as that enjoyed by
non-Indigenous title holders. The extinguishment of Indigenous interests
in land for the benefit of non-Indigenous interests in land is racially
discriminatory. Consequently, any construction of native title that renders
it less liable to extinguishment will better reflect the international
human rights standards.

The 'bundle of rights'
characterisation of native title is a construction of the right that directly
entrenches every small incursion into the right so as to ensure that the
accumulation of small incursions finally results in the complete erosion
of the substantial right. There is no notion of sovereign power being
exercised so as to regulate or curtail Indigenous interests in land. Only
extinguishment will result from the creation by the Crown of inconsistent
rights. In this way Indigenous culture is inexorably removed, parcel by
parcel, to give way to new interests in land as they are created.(p63)

The construction
of native title preferred by international human rights standards is native
title as an interest in land. Where native title is constructed as an
interest in land it is extinguished only as a result of a deeper inconsistency
between this underlying right to the land and the enjoyment of non-Indigenous
rights. Under the right to land approach non-Indigenous rights are still
given priority, but not so as to extinguish native title whenever there
is an inconsistency.

This holistic approach
to the construction of native title allows room for regulation or suspension
of native title, rather than its extinguishment. This is consistent with
human rights norms, which require the conceptualisation of native title
in a manner that promotes its resilience, rather than its fragility and
susceptibility to extinction forever in the eyes of the law.(p63)

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Chapter
3: Native title and sea rights

Chapter 3 discusses
the recognition of native title rights to the sea under the common law
and the Native Title Act. The adequacy of common law and statutory recognition
of native title rights to the sea are evaluated in the terms of the international
legal principals of equality and non-discrimination requiring the protection
of Indigenous culture.

Under both the common
law and the NTA the legal recognition of native title rights to the sea
is significantly more restricted than recognition of native title rights
to land. This difference does not stem from an Indigenous distinction
between land and sea rights. Rather, the limitations on recognition of
native title in the sea arise from deeply ingrained Western notions of
the sea as a commons that cannot be owned.

In the Croker Island
Case this restriction on the recognition of sea rights is reflected in
the finding of the Majority in the Full Federal Court that only non-exclusive
cultural and subsistence rights could be recognised. Like the common law,
legislative recognition of native title rights to the sea under the NTA
falls short of international obligations. It assumes that there is a fundamental
difference between Indigenous rights on land and sea.

The substantive
equality approach would recognise that Indigenous people in Australia
have a special relationship to sea country that requires special protection.
The procedural rights necessary associated with native title rights to
sea should not be less than the procedural rights necessary to protect
native title rights to land.(p109)

n light of the current
state of international law in respect of the rights of Indigenous peoples,
and Australia's international legal obligations arising from both customary
international law and ratified multilateral treaties, it is incumbent
upon Australia to provide positive legal recognition and protection of
sea rights for Indigenous Australians. To allow Indigenous sea rights
to be relegated to the same legal status as recreational fishermen would
be to hold to an outdated and defective doctrine of mare nullius,
wholly inconsistent with contemporary international rules and principles.

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Chapter
4: Indigenous heritage

The recognition of
native title was an opportunity to re-frame the protection of Indigenous
heritage within the broader framework of a human right to enjoy one's
culture. However, the developments within the common law of native title,
and amendments to the Native Title Act have placed heritage protection
outside of a rights based discourse. These developments are examined in
chapter four of the report.

As a result of the
inadequate protection provided through native title, State and Commonwealth
heritage legislation remains the most significant form of heritage protection
available to Indigenous people. The Commonwealth Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 was reviewed by Dr Elizabeth
Evatt in 1996. While the Act has recently been the subject of a series
of amendments the recommendations of the Evatt Report have not been implemented
in the Aboriginal and Torres Strait Islander Heritage Protection Bill
1998. The Report documents the way in which the Bill weakens the inadequate
protection currently available from the Commonwealth for areas and objects
of significance to Indigenous people.

My concerns in relation
to the proposed reform of the Commonwealth Heritage Act, as encapsulated
in the Bill, can be seen in terms of the human rights principles that
firstly require adequate protection of Indigenous culture and secondly
effective participation of Indigenous people in the decisions made in
relation to their culture.(p43)

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Chapter
5: Implementing the amendments

Chapter 5 of the
Report assesses the ways in which the implementation of the 1998 amendments
to the Native Title Act have borne out the findings of the CERD Committee
in 1999 and 2000 that the Act as amended is discriminatory of Aboriginal
people. Developments within the reporting period in the judicial interpretation
of procedural provisions in the NTA confirm the inadequacy of the Act
to provide protection to native title parties where developments are taking
place on their land. The implementation of alternative state regimes has
illustrated the vulnerability of Indigenous rights when incorporated into
state land management programs.

The bodies responsible
for representing the interests of native title holders throughout these
developments are Native Title Representative Bodies. This chapter finds
that, in view of the demands of the re-recognition process and in view
of the additional functions bestowed upon them under the amendments to
the Native Title Act, Representative bodies are critically under-resourced.
The result of these developments is that native title interests are inadequately
protected.

The amendments to
the Native Title Act have been in operation for over two years. In relation
to the provision of procedural rights the courts have confirmed the failure
of the Act to provide appropriate protection to native title. Governments
control over native title continues to devolve to state governments who
are authorised under the amendments to implement regimes that provide
less protection than that provided under the Commonwealth Act. Several
UN treaty committees have found these amendments to be discriminatory
and in breach of Australia's treaty obligations. Unless the discriminatory
provisions of the NTA are repealed Australia will continue to be condemned
by human rights bodies in respect of its treatment of Indigenous people.(p164)

Last updated 7 October 2003.