The Informa 3rd Annual Negotiating Native Title
Aboriginal and Torres Strait Islander Social
Justice Commissioner and Race Discrimination Commissioner
Human Rights Commission
Vibe Savoy Hotel, Melbourne
An abridged version was delivered on the day
Good morning ladies and gentlemen.
I begin today by paying my respects to the Wurundjeri peoples, the
traditional owners of the land where we gather today. I pay my respects to
your elders, to the ancestors and to those who have come before us.
I would also like to acknowledge my Indigenous brothers and sisters here with
us today, the Federal Attorney General, Robert McClelland, and the many
native title professionals, in particular those who work in our Native Title
Representative Bodies, and other distinguished guests.
As the Aboriginal and Torres Strait Islander Social Justice Commissioner, my
role is to monitor the enjoyment and exercise of human rights for Indigenous
Australians, and I have a particular responsibility to report on how these
rights are affected by the operation of the Native Title Act. I do this
through the Native Title Report which is produced each year. Fifteen Native
Title Reports have been submitted to Attorneys-General which have offered
detailed observations, analysis and recommendations on how the native title
system impacts on the human rights of Aboriginal and Torres Strait Islanders.
As many of you here today are fully aware, this year marks the
15th anniversary of the Native Title Act which entered into force on
1 January 1994. This legislation was passed in response to the infamous Mabo
decision, and was the topic of one of the longest Parliamentary debates in
Newspaper headlines at the time either acknowledged the past and the need to
make reparation for lost rights, or trumpeted doomsday warnings that native
title would threaten suburban backyards - hills hoists etc. Some even
threatened that the new Act would scare off investment, cripple rural
development and bring economic gloom for the nation.
But these threats have never eventuated.
In fact, native title has disproven many of the doubts and fears raised 15
years ago. And now we consistantly hear stories of farmers, mining companies
and governments using the native title system to formalise positive
relationships with local Indigenous communities. The Minerals Council of
Australia for example, has on many occasions offered its vocal support and
respect for Indigenous Australians' rights and their special connection to lands
While the Native Title Act was originally limited in what rights it could
recognise, it was intended to be supported by a land fund and a social justice
package. Regrettably the social justice package has never eventuated. Then
in 1998, the Howard Government’s 10 point plan further restricted its
operation, providing ‘bucket loads’ of extinguishment of native
title rights, erasing significant procedural rights, and making it more
difficult for Indigenous people to prove their native title.
The end result is that we now have a system where recognition of native title
is not achievable for many Indigenous Australians. And alternative forms of
land justice and social justice are not accessible for many, or are dependent
on state or territory government policy.
Over the last 12 months, there has been no shortage of calls for, and
commitments made to making native title work better – for all of us.
But for me, and I think in this regard I can say for many Aboriginal people and
Torres Strait Islanders, we want to see what Koiki Mabo set out to achieve, a
just and equitable native title system – both in process and in outcome.
This leads me to the topic of my talk with you today, enabling a just and
equitable native title system.
Before I talk about how to achieve this, I would first like to reflect on
what it should not look like based on our 15 years of experience in native
For Indigenous people, a just and equitable native title system, is not one
that changes with the whim of government;
- it is not one that allows a historical tenure search that tells you that 50
years ago, the grant of a lease which is now expired, extinguished your rights
to have your native title recognised forever
- it is not one that makes you prove over 200 years of traditional ownership
eventhough you and your ancestors have lived there for thousands of years
- it is not one which takes so long to obtain recognition of your rights that
your elders die
- and it is not one that tells you that you have lost your culture after you
were forcibly removed from your parents and were punished for speaking your
language or practicing your culture under government policies that legalised
Many obstacles must be overcome, and tinkering at the edges will
not bring about the change that is required to achieve our end goal – a
just and equitable native title system. And the Attorney-General has
recognised this and has counselled those who work within the native title system
that to bring about meaningful change, there must first and foremost be a
change in our attitude towards native title.
While none of us here are so naive as to think that a change in attitude is
all that is required, I am optimistic that the road to a just and equitable
native title system and the required change in attitude, started with the
election of a new federal government. A government that saw as one of its
first priorities an obligation to make a formal Apology for those policies that
created the need for the native title system in the first place.
As well as the Apology, the Federal Government have committed to a new
relationship of partnership and respect with Indigenous peoples, and to closing
the gaps between Indigenous and non-Indigenous Australians- And the activity
around the native title system is a particular focus of this energy. The
Attorney-General has strongly advocated for those working in native title to
focus their energy on open and flexible negotiations, avoiding litigation, and
achieving more beneficial and sustainable outcomes from native title
negotiations. In order to achieve these goals, the Government have been
working with native title stakeholders to set the scene.
In the past few weeks alone, I have made submissions to the Attorney-General
on possible amendments to the Native Title Act, and to the government’s
discussion paper on native title payments, which both contain a number of
recommendations that suggest options for improving the operation of the native
title system. I have also submitted my annual native title report to
Attorneys-General. This year will be my fifth, and probably my last, as my
term as the Social Justice Commissioner is due to end in early July.
As I stated earlier, in order to enable a just and equitable native title
system we have many obstacles to overcome, and tinkering at the edges will not
Some have argued that better outcomes are already achievable under the Native
Title Act as it is currently drafted, and for the short –term I
agree. However, there are significant barriers within the system that more
often than not have a greater impact on the rights of Indigenous peoples.
These barriers must be addressed to ensure Indigenous peoples have the greatest
possible opportunity to leverage just, equitable and sustainable outcomes from
the native title system.
As we all know, on average, it takes more than six years to finalise a
contested claim. No compensation claim has ever been successful. And there
are cases where the courts have denied recognising native title in the same
breath as acknowledging that the peoples before them are the same peoples that
owned that land at the time of colonisation more than 200 years ago.
Last year, the Full Federal Court handed down the Rubibi case. For the
traditional owners of the Broome region in Western Australia, this case is a
landmark decision. The applicants, one of whom is well known to many of us
here today, Patrick Dodson, lodged this claim over their traditional lands not
long after the Native Title Act was passed in 1994. And after almost 15
years, through over eight court decisions, millions of dollars in appeals,
and undoubtedly a significant toll on the Indigenous peoples who had to go
through this process, it slowly progressed to a determination that recognised
the Yawuru peoples native title rights and interests over their lands in the
Despite the fact that they have met all the conditions of the ‘white
man’s law’, the Yawuru continue to have their native title rights
and interests challenged through negotiations that are occurring, while waiting
to hear whether the Western Australian Government have been successful in their
bid for leave to appeal to the High Court. With this threat of further
litigation looming, the Yawuru are now dealing with a new government, one who
has a tendency to threaten Indigenous people with compulsory acquisition if they
are unwilling to surrender their rights.
It is a long, hard road for traditional owners to achieve what seems simple
on paper: recognition of their pre-existing rights to their country.
Particularly under a system where Indigenous people are consistently being
forced to try to fit a round peg, our system of law and governance, into the
square hole that is the native title system, to have their inherent rights
So what change is necessary to even out this balance of power? To ensure
that the existing framework provides the greatest benefit possible. And to
develop this framework to the extent that there is clear evidence of an improved
quality of life for Indigenous peoples.
In my Native Title Report 2007, I called for an overhaul of the native title
system. And as discussed above the Government are currently giving
consideration to possible amendments to the Native Title Act.
I’d like to consider a few areas where I think we could see the most
impact to improving the equity and justice of the system, both in the
short-term and the long-term. These areas are:
- Resourcing of NTRBs and Indigenous Corporations
- The number of Parties engaged in native title processes
- The Burden of Proof
- The Right to Negotiate
- Native title agreements
The most important issue reported to me is ensuring that native
title claimants and their representatives are sufficiently resourced to fully
and effectively participate in the processes involved in securing outcomes from
native title, be it through a determination of native title or through
The bottom line is that sufficient resourcing must be provided to Native
Title Representative Bodies to guarantee that claimants have access to the best
possible legal and financial advice, and any other expert advice that may be
necessary and would be relied upon by corporate and government stakeholders to
secure their interests. As is widely acknowledged, yearly funding cycles and
re-recognition periods are also a significant impediment to the capacity of
Sufficient resources must be available to ensure that claimants have the
capacity to be fully engaged in decisions that will have a long-lasting affect
on their lives and the lives of their families.
Not only is it vital to ensure that the Native Title Representative Body
system is functioning effectively, but it is also crucial to ensure that those
Indigenous Corporations that are actively engaged in native title processes are
also provided with resources. There are two categories of Indigenous
Corporations that I am particularly concerned about in the context of enabling a
just and equitable native title system.
The first is Registered Native Title Bodies Corporate or Prescribed Bodies
Corporate. While the previous Government in its 2007 amendments provided
mechanisms through which these corporations could gain support, either directly
from FaHCSIA or through their Native Title Representative Body, FaHCSIA have
stated that the provision of funding support for PBCs beyond their initial
establishment phase has been limited by the high level of demand for resources
by the Native Title Representative Bodies and the level of funds available to
the program. So in real terms
the improvement to PBC support since these changes were introduced has been
minimal to date with only 10 out of 57 registered PBCs receiving funding to a
total of $380,000 that was sourced from funds allocated to their Native Title
But it is a start!
The second category in the representative system I would like to discuss,
are those Indigenous Corporations that deal with native title issues but are not
registered to undertake this specific purpose. These are corporations that
native title claimants are forming in order to utilise the procedural rights
afforded under the Native Title Act or to prepare for a determination.
However, these corporations often also carry out other dealings associated with
their lands before a native title determination has been made. Because these
corporations are not yet Registered Native Title Bodies Corporate, meaning that
there is no determination of native title, there is no funding available
through the Commonwealth for these corporations at all. Yet these
corporations are essential to the system’s operation, the protection of
native title rights and interests prior to a determination, and fulfilling any
legal obligations contained in native title agreements.
So in order to increase the efficiency and effectiveness of the native title
system the Government must include in the native title budget sufficient ongoing
funds that are required to promote a level playing field and sustainability from
This leads me to the second option that would contribute to enabling a just
and equitable native title system. That is to address the number of parties
to native title claims and improving the processes around becoming a party. A
major hindrance to native title proceedings can simply be the number of parties
to the proceeding. This has unquestionably resulted in excessive delays, costs
and the frustration of settlement efforts throughout the native title system,
and requires more effective management.
I am of the view that the thresholds for people applying for status as a
party is too low and requires adjustment, particularly where respondents with
only marginal relevance to the claim are being granted party status.
In the short-term, there are a number of mechanisms through which we can
The Native Title Act already provides for the removal of parties from
proceedings: including through leave of the court after proceedings have begun,
and where the court orders that the party no longer has an interest that may be
affected by a determination. However, the court’s powers to remove parties are not used regularly or
consistently throughout native title proceedings. Greater use of this power
could enable proceedings and agreements to progress more efficiently.
In the longer-term, amendments to the Native Title Act that increase the
criteria by which respondents can become a party will also enable greater
justice and equity in native title proceedings. by increasing the criteria by
which respondents can become a party. In particular, amendments to the
threshold for those parties whose interests may be affected by a determination
in the proceedings should be
required to specify that a party’s interest is likely to be substantially affected by a determination in the proceedings.
Additionally, amendments to require parties to advise the court on a periodic
basis how their interests continue to be affected by the proceedings in order to
remain a party may assist with managing the current numbers of parties to native
The third area that I consider crucial to enabling a just and equitable
native title system, but is stifling access to the native title process for
Indigenous peoples, is the burden of proof.
When it comes to the native title system, I am particularly concerned with
the weight of the burden imposed on Indigenous peoples in order to claim their
native title rights and interests and have them recognised under the Australian
legal system. The burden of proving native title is simply too great.
In native title reports I have
outlined the significant evidentiary difficulties faced by Indigenous peoples
seeking to establish the elements of the definition of native title. The
standard and burden of proof required, and the prolonged bureaucratic process
to prove native title rights, place particular burdens on Indigenous peoples
seeking to gain recognition and protection of their native title rights.
It is a cruel aspect of native title law that the more an Aboriginal or
Torres Strait Islander has been hurt by government policy, the less likely they
are to have their native title realised. This also collides with the preamble
of the Native Title Act which acknowledges the fact that Aboriginal peoples and
Torres Strait Islanders are the most disadvantaged group in Australian society.
As such the law should offer equitable and just remedies to our prolonged state
of dispossession - not a system that requires evidence of the maintained
connection to land over, in some instances, two centuries.
Some have argued that the burden should be shifted to those who were
responsible for the dispossession. As one academic put it:
...the question should not be how we can deal with indigenous
‘claims’ against the state, but rather how can the colonisers
legitimately settle and establish their own
Such an approach would not be inconsistent with the Native Title Act. The
preamble states that the law ‘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 lands.’ A
presumption in favour of the existence of native title rights and interests
would simply recognise and give respect to this fact.
This approach is not something new either. There are currently a number of
laws in which the burden of proof shifts to the respondent party in respect of
certain elements. This is typically in situations where the respondent is the
more appropriate party to prove the relevant issue.
For example, the Workplace Relations Act 1996
(Cth) provides that in claims
alleging termination of employment for a proscribed reason (including sex,
marital status, pregnancy, family responsibilities and absences from work
during maternity leave or other parental
leave), the onus is on the
respondent to establish that the termination was not for a proscribed
This is appropriate in the context of native title for a number of reasons,
- that the government holds the information that Indigenous peoples need to
access to prove their claim
- it has the resources to commit
- it is the party that undertook the extinguishing act by granting the
interest in land in the first place.
I believe that to shift the
burden of proof to the government in native title proceedings would
significantly increase the potential for a just and equitable native title
This is also directly linked to the fourth area, extinguishment.
As the Federal Court recognised in Northern Territory v Alyawarr:
The preamble declares the moral foundation upon which the [Native Title Act]
rests. It makes explicit the legislative intention to recognise, support and
protect native title. That moral foundation and that intention stand despite
the inclusion in the NT Act of substantive provisions, which are adverse to
native title rights and interests and provide for their extinguishment,
permanent and temporary, for the validation of past acts and for the
authorisation of future acts affecting native
The breadth and permanency of extinguishment of native title through the
Native Title Act is an unnecessary approach, with little policy justification,
and could easily be changed.
For example, if areas where native title has been extinguished, and
consequently where it could possibly still exist, was established early in the
proceedings this would:
- reduce the number of parties to the proceedings (as some could then be
- help the remaining parties identify areas of contention and those over which
there is no issue
- assist parties to identify where early evidence could be taken and reduce
the resources required to pursue the claim further.
appropriate party to provide tenure information that confirms extinguishment is
the government, based on the fact that they hold this information and are in the
best position to provide a thorough tenure search; and they are responsible for
the extinguishing act.
Additionally, addressed in the preamble to the Native Title Act. It
where appropriate, the native title should not be extinguished but revive
after a validated act ceases to have
However, this is not what occurs in practice.
The 1998 amendments significantly expanded the situations in which native
title rights are extinguished permanently.
Amendments that limit extinguishment to the current tenure extinguishment and
repeals the provisions that validate past extinguishment would go a long way to
addressing this inequity.
Alternatively, the government could consider amendments that provide a
greater number of circumstances in which historical extinguishment will be
circumstances in which this already occurs could be expanded. For example the
non-extinguishment principle could be extended to cover:
- all Crown land
- other identified classes of land and waters
- any other area which the relevant government decides.
be a number of considerations if this path were followed including:
- the need for a transition process
- an understanding that such an approach will not do away with all historical
tenure research that is required
- that any extinguishment of native title that occurred after the enactment of
the Racial Discrimination Act 1975 (Cth) will still need to be examined closely
in order to determine whether compensation is payable to the claimants under
that Act. But overall, a rule which disregards historical extinguishment
should reduce the number of circumstances in which compensation under the Racial
Discrimination Act may apply.
If the extinguishment provisions were
amended in this way, the cost and resources required to undertake historical
tenure research would be reduced significantly and native title proceedings
would be simpler and faster to resolve.
The right to negotiate is the fifth area of consideration.
The procedural rights protected under the right to negotiate provisions of
the Act are of significant value. The utilisation of these rights is the door
for many Indigenous peoples’ participation and engagement in the economy,
and provides the key to them taking part in the resources and other sectors.
The economic significance of these rights has been identified by the
Attorney-General and the Minister for Families, Housing, Community Services and
Indigenous Affairs as a reason for the recent discussion paper on how to improve
the benefits that flow from agreements made through this system.
The right to negotiate which is triggered by having a native title claim
registered, operates through the future acts part of the Native Title Act.
The granting of procedural rights after registration recognises that the
claimants have a prima facie case, that is, it is likely they are the
traditional owners of country. However, pursuing a claim and negotiating an
agreement using the right to negotiate are two are very different activities to
undertake with potentially very different outcomes. Kevin Smith, the CEO of
Queensland South Native Title Services stated:
The reality is that this current unprecedented resource sector boom presents
an opportunity for a good number of clients to engage in the real economy for
the first time and possibly only time. On the other hand, my clients are
acutely aware that a native title determination application allows for the
recognition of rights and interest to land and waters for the benefit of both
current and future
He highlighted the real conflict of duty for Indigenous peoples who are
caught between prosecuting a claim to ensure that substantive rights and
interests are recognised while seeking to secure procedural rights - to
negotiate fair compensation for mining on their ancestral lands. The irony,
somewhat perversely, is that under the current arrangements they must do the
former to preserve the latter.
Tony McAvoy has similarly suggested that the two processes should be
‘de-coupled’. He suggests that the NNTT should become a
‘procedural rights oversight and management body’. The procedural
rights would still be granted on the basis of passing the registration test,
after which they could be a ‘native title procedural rights holder’.
The claimants then have the option to indicate if they wished to apply for a
One benefit to the approach that McAvoy has cited is that if claimants could
discontinue on the basis that they would retain procedural rights, a number
would take that opportunity, reducing the applications before the Federal
And finally, the sixth option, that is already available to us to enable a
just and equitable native title system is the ability to negotiate Indigenous
Land Use Agreements. These agreements are particularly important given that a
significant flaw of the native title legislation is its lack of protection for
There is no doubt that sustainable economic development is essential for the
well-being of Indigenous communities on Indigenous land. This is not just my
view; this is the view of the majority of Indigenous people and traditional
owners who responded to a national survey conducted in 2006 by the Human Rights
Commission. But it is also the
view of the Australian Government.
Indigenous Land Use Agreements provide Indigenous people with
an opportunity to negotiate economic development outcomes and the support that
is required to develop sustainable Indigenous communities. But also to ensure
the development of capacity for future independence and self determination.
However, in the context of enabling a just and equitable outcome, as
Indigenous peoples we must have the capacity to negotiate as equal partners.
As the basic foundation, we as Indigenous stakeholders must be central
participants in setting the development goals and agendas for our communities.
The ultimate success of these goals is dependent on our active participation.
Secondly, we must be innovative in our approach to development on land and
utilise all avenues of funding and support to ensure the most beneficial
outcomes are achieved. This will be particularly important in light of the
global economic challenges we face now and in the future. We will no longer
be able to depend on the mining boom to fund essential services and basic human
rights for Indigenous communities.
Thirdly, and as I touched on briefly earlier, Indigenous parties to
agreements must have access to the necessary expertise required to negotiate the
best agreement possible. A mining company would not come to the negotiating
table without their economists, investment advisors, business managers, and
contract lawyers to negotiate a settlement that would not provide the best
protection of their interests. However, Indigenous peoples must rely on our
under resourced Native Title Representative Bodies to provide us with advice on
all of those things at the negotiating table. Apart from the obvious fact
that NTRBs require a significant funding increase, an innovative response to
this issue would be for the Government to establish and fund an expert register
whereby Native Title Representative Bodies and native title claimants have
access to the expertise they require to negotiate the best settlement possible.
This will require dedicated resources. However, with skilled negotiators
and skilled, capable communities who know their rights, good agreements can be
If we are to evolve towards a just and equitable native title system, a path
this Government has shown it’s willing to take, the native title system
must entail less litigation and complex demands of continuous connection to
land, and place emphasis on negotiating agreements with the claimants that
result in sustainable social, cultural and economic benefits.
In an insightful critique of the native title process in Australia, Hal
To leave the consequences of these policies to litigation in private actions
based on existing rights, in courts designed to settle legal rights by an
adversary system within a relatively homogenous community, is at once an insult
to the Indigenous people and a prostitution of the courts.
With 15 years of
native title behind us and very little evidence of any marked improvement in the
lives of Indigenous Australians, we now have the benefit of learning from what
has gone and learning from our past experience of engaging in this unique
The changes proposed in my talk today may require a lot of work, but they
would result in a Native Title Act which would achieve what it originally set
out to achieve – providing equitable treatment of Indigenous
peoples’ native title rights in accordance with our inherent right to our
We all have an opportunity right now to make the necessary change that
is required to create a just and equitable native title system. And we all
have a responsibility to maintain the momentum of the Apology, and work hard to
achieve a native title system that is just and equitable for all parties. But
particularly for our most disadvantaged, our Indigenous peoples.
So please remember, from self respect comes dignity, and from dignity comes
 G Roche, Manager, Department
of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September
 G Roche, Manager,
Department of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September
 Native Title Act, s
 Native Title Act, s
 see Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2002,
Human Rights and Equal Opportunity Commission (2002),
Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2005,
Human Rights and Equal Opportunity Commission (2005) and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Human Rights and Equal Opportunity Commission (2007).
 D Short, ‘The social
construction of Indigenous `Native Title' land rights in Australia’,
(2007), 55(6) Current Sociology 857, p 872 (original emphasis). At http:
//csi.sagepub.com/cgi/reprint/55/6/857.pdf (viewed January 2009).
 See further, in relation to
establishing causation under the Racial Discrimination Act 1975 (Cth),
HREOC, An International Comparison of the Racial Discrimination Act
1975: Background Paper No 1 (2008), Chapter
 Workplace Relations Act
1996 (Cth), s 659(2)(f) and
 See, eg, Bognar v
Merck Sharp Dohme (Australia) Pty Ltd  FMCA 571, : ‘By
virtue of s.664 of the WR Act, the respondent bears the onus of proving that it
did not terminate the applicant’s employment for a prohibited reason, or
for reasons that included a prohibited reason.’ See also Liquor,
Hospitality Miscellaneous Union, Liquor & Hospitality Division, NSW Branch
on behalf of its member, Wayne Roberts v Woonoona Bulli RSL Memorial Club
Ltd  FCA 1460, : ‘In this proceeding it is thus not
necessary for the Union to prove that Mr Roberts’ employment was
terminated for the reason, or for reasons including the reason, that he
refused to negotiate in connection with, make or sign an AWA. However, the
Club will have established a defence to the Union’s application if it has
proved that Mr Roberts’ employment was terminated for a reason or reasons
that do not include a proscribed reason.’ See also Tandoegoak Anor v
Marguerite Gerard Pty Ltd  FMCA 621, : ‘The Court is
cognisant of the reverse onus of proof contained in section 664 of the
Act.’ See also Abrahams v Qantas Airways Ltd  FMCA 634,
 (2005) 145 FCR 422 at
 Native Title Act
1993 (Cth), preamble.
 Native Title Act 1993 (Cth), ss 47to
 K Smith, Proving
native title; discharging a crushing burden of proof, (Speech delivered at
the Judicial Conference of Australia National Colloquium, Gold Coast, 10
 Note: The
majority of traditional owner respondents to the 2006 HREOC survey agreed that
economic development is important for their land. However, when asked to
rank the most important uses for land, traditional owners supported
‘custodial responsibilities’ and ‘access to land’ before
in J Williams, ‘Confessions of a Native Title Judge: Reflections on the
Role of Transitional Justice in the Transformation of Indigeneity.’ Land, Rights, Laws: Issues of Native Title, 3, (2008). 20 July