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Comments by Aboriginal and Torres Strait Islander Social Justice Commissioner on MMSD (Australia) Project (2001)

Comments by Aboriginal and
Torres Strait Islander Social Justice Commissioner on MMSD (Australia)
Project, as at 14 November 2001

Revelant Human Rights Principles
Managing Minerals Wealth (K Willett)
Baseline Assessment (P Hancock & M Roarty)


1.1 Introduction

In early 2001 AMEEF,
as managers of the MMSD (Australia) project, commissioned various studies
including a baseline assessment of the minerals industry and five other
areas of interest: mining and biodiversity, stakeholder engagement, mining-Indigenous
agreements, managing minerals wealth, and industry-based initiatives for
sustainable development. These studies will contribute to a final report
of the MMSD (Australia) project, which will form part of MMSD's global

One of the aims in
the MMSD (Australia) project is to define 'a broadly-supported program
of action for future progress on sustainable development in the Australian
minerals industry'. [1] Sustainable development cannot
be achieved in a manner inconsistent with universal human rights. The
importance of human rights in the aim for, and practice of, sustainable
development has been repeatedly emphasised [2], as has
the importance of Indigenous people and their communities.[3]
It is generally recognised that in order to achieve sustainability every
venture, including mining, has to balance three elements; economic, environmental,
and social. Australia's mining industry in Australia will be assisted
in reaching this balance through AMEEF's proposed program of action. However,
AMEEF's aims will not be achieved unless the final report of the MMSD
(Australia) project is consistent with international human rights standards,
particularly those principles that are legally binding within Australia.

As the Aboriginal
and Torres Strait Islander Social Justice Commissioner I have statutory
functions to promote discussion and awareness of human rights in relation
to Aboriginal and Torres Strait Islander people, to report to the Commonwealth
Government on the enjoyment and exercise of human rights by Indigenous
Australians, and to recommend where necessary on the action that should
be taken to ensure these rights are observed.[4] It is
in keeping with these functions that I make the following comments.

1.2 Contents

This document sets
out the human rights principles that, in my view, are relevant to the
AMMEF project. It then focuses on two commissioned studies that are of
concern from a human rights perspective. The document is divided into
the following sections.

2.1 Equality
and non-discrimination
2.2 Protection of culture
2.3 Effective participation
3.1 Purpose of native title
3.2 'Right to negotiate' and mineral wealth
3.3 Native title rights to minerals
3.4 Native title as an impediment to economic development
3.5 Arguments against the 'right to negotiate'
3.5.1 'Right to negotiate' assists native title parties only
3.5.2 Urgency to address Aboriginal disadvantage
3.5.3 Native Title Act severely impedes mining and exploration
3.5.4 Payments distort otherwise efficient decisions
4.1 Historical aspect
4.2 Native Title Act and the 1998 amendments
4.3 Alternative State / Territory regimes


As noted in the introduction,
there is an important relationship between sustainable development and
human rights. The primary responsibility for implementing international
human rights treaty obligations lies with national governments. However,
this does not mean that non-government parties (including mining companies,
industry organisations and analysts) can ignore these principles. The
basic human rights standards developed by the United Nations state that
'every individual and every organ of society…shall strive to promote
respect for these rights and freedoms secure their universal
and effective recognition and observance'. [5] Various
companies and other non-state actors have acknowledged these standards.[6]
However where the private sector fails to act in accordance with these
standards, it is incumbent on government to ensure, through legislation
or policy measures, that the principles they have signed up to are implemented.

The human rights
principles set out below are drawn from international treaties including
the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) [7] and the International Covenants
on Economic, Social and Cultural Rights (ICESCR) [8]
and on Civil and Political Rights (ICCPR)[9] . Australia
voluntarily assumed these treaty obligations, [10] and
there are also principles arising under norms of international law. [11]
The principles from both these sources can be divided into three broad
areas: equality, culture, and effective participation.

2.1 Principles
of equality and non-discrimination

Australia is required,
under ICERD, to protect the right to equality, including equal protection
of property interests, without distinction as to race, colour or ethnic
origin. [12] Accordingly, property rights of Indigenous
people must be protected to the same degree as non-Indigenous property

In order to achieve
equality and equal protection of property interests, while also taking
account of the specific cultural identity of the group or individual concerned,
may require the government to adopt measures that treat the particular
group differently.[13] This is the principle of 'relative'
or 'substantive' equality,[14] which is acknowledged
by the Australian government as appropriate in the case of Indigenous
rights in Australia. [15] It can be distinguished from
the notion of formal equality, which merely requires governments to treat
all groups the same.

Indigenous property
rights derive from the traditional laws of Indigenous people. Prior to
the Mabo decision, the Indigenous system of law and culture was
seen as inferior to the Western system, Indigenous property rights were
vulnerable to extinguishment or impairment under the common law. To achieve
the necessary equal protection of Indigenous property rights, differential
treatment of such rights is required. [16] This is one
of the bases upon which the High Court's Mabo decision and the Commonwealth
Parliament's Native Title Act 1993 ('Act') were founded.

2.2 Protection
of culture

The ICCPR provides
that, in countries that have joined this treaty, members of minority groups
are entitled to maintain and enjoy a distinct culture.[17]
Where land is important to the sustenance of a culture, as it is with
Indigenous culture, then the right to enjoyment of culture requires the
protection of territories upon which the culture is founded. [18]
If such territories are to be used for developments such as mining, the
right to enjoy one's culture requires that the territories should not
be subject to use in any way that has more than a 'limited impact' on
the Indigenous way of life. [19]

The right to enjoyment
of culture should not be interpreted as a 'frozen' right limited to when
the culture was supposedly 'pure' or 'traditional'. Nor is it restricted
to only the traditional means of livelihood but includes a right to social
and cultural evolution and economic development. [20]
This is particularly relevant to the MMSD work because of the recognition
that Australia should 'provide Indigenous peoples with conditions allowing
for a sustainable economic and social development compatible with their
cultural characteristics'. [21]

2.3 Effective

Indigenous people
have a right, under ICERD and also implied in ICCPR and ICESCR, to effective
participation in decisions affecting them, their lands and territories'.
[22] Effective participation is particularly important
in the case of decisions affecting Indigenous land because of the cultural
relationship Indigenous people to their land. [23]

Australia, together
with other countries who accepted these treaty obligations, needs to 'ensure
that members of Indigenous peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to
their rights and interests are taken without their informed consent'.


The study AMEEF commissioned
for this part of the project focuses on the economics of mining, aiming

  • document the benefits
    and costs arising from mining,
  • analyse the contribution
    of mining to sustainable economic development in Australia, and
  • recommend strategies
    to overcome constraints to mining. [25]

The study conducted
by Mr Willett includes papers and presentations in the Perth [26]
and Brisbane [27] conferences. This material touches
on issues of native title. I understand Mr Willett addressed native title
issues at more length in the Perth meeting (in July) and his final report
will provide further detail on various important artificial impediments
to mining,[28] with the Perth paper only providing 'brief
introductory remarks on some of these artificial impediments [including
native title]'. [29]

Mr Willett analyses
matters on a basis of 'efficient allocation of resources'. Accordingly,
actions and government policies that do not promote the most efficient
(economic) use of resources are discouraged. Such an approach does not
recognise, nor account for, the inclusion of Indigenous rights in Australia's
minerals system. It is important that the effects of Indigenous interests
on mining are fully discussed, but it is impractical for any analysis
of, or suggested changes to, the native title system to be based only
on its financial consequences.

Mr Willett's assessment
of native title and Indigenous rights is problematic, from a human rights
perspective, in various respects, which I explain in points 3.1 to 3.5

3.1 Purpose of
native title

Mr Willett characterises
the native title system as 'designed…to provide holders of native
title with access to some of the nett value of mineral resources'. [30]
This view is repeated in his later assertion that 'The "right to
negotiate" provision was included in the legislation on equity grounds
to help redress the severe disadvantage of Aboriginal people in the Australian
community' . [31]

This assessment misconceives
native title. The understanding of native title's rationale has serious
implications for how the AMEEF project intends to progress from this point,
so I will explain my reasoning in detail.

Native title is not
a special measure implemented by government to improve the situation of
an underprivileged group of Australians. Rather, native title is a recognition
of Indigenous laws and customs that pre-existed the acquisition of sovereignty
in Australia. This characterisation is consistent with the Mabo
decision [32] and more recent High Court decisions.
It is also consistent with the Native Title Act: the first of the Act's
four main objects is 'to provide for the recognition and protection of
native title'. [33] The phrase 'native title' is defined
in the Act as 'the…rights and interests of Aboriginal peoples or
Torres Strait Islanders in relation to land or waters… [which rights
and interests] are possessed under…[Indigenous] laws [and] customs'.

The 'right to negotiate'
under the Act receives considerable attention in Mr Willett's study. It
is relevant to note that control of access to, and activities on, traditional
estate is a consistent feature of Australian Indigenous customs and traditions.
The right to negotiate is a diminished reflection of this need to 'look
after' the land and can be characterised as part of Indigenous culture.
As noted earlier, Australia has obligations to protect the rights of Indigenous
people to their own culture. [35]

In summary, the Act
and relevant court decisions demonstrate that the basis for native title
is recognition of Indigenous rights in land. There is an important distinction
between characterising native title as 'redress[ing] the severe disadvantage
of Aboriginal people' or as an inherent right arising out of the Indigenous
legal system but recognised and protected by the non-Indigenous legal
system. The relevance of this distinction is that it affects how one analyses,
or suggests changes to, the native title system. Rights created by statute
to meet policy objectives of Australian society can properly be adjusted
to reflect changing priorities in Australian society, provided this does
not contravene Australia's international obligations. However, native
title is not a statutorily created right to meet policy objectives, but
an inherent right derived from Indigenous culture. Changes to the native
title system designed to give preference to non-Indigenous economic interests
[36] are a breach of the human rights of Indigenous
people and contrary to international and Australian racial discrimination
law. Such an approach is unlikely to progress toward a sustainable outcome.

3.2 'Right to
negotiate' and mineral value

Mr Willett implies that the Act gives some Indigenous people the
right to take partial value of minerals [37]. This is
not the case.

In some circumstances,
native title parties have a right to negotiate in relation to future land
use but where the parties don't agree, the National Native Title Tribunal
makes a ruling. The Tribunal is expressly prohibited under the Act from
ruling that a native title party receive any financial gain worked out
by reference to things produced on, or income from, the land [38].
Accordingly, the only way that a native title party 'will be entitled
to payments calculated by reference to profits, income, or production'
[39] is where the developer agrees to that outcome.
It is not an entitlement that Indigenous people can obtain under the Act
without the company's consent.

It could also be
noted that the Act's prohibition on an arbitrated outcome based on income,
influences negotiations between companies and native title parties. Where
a company knows it cannot be forced to make a payment worked out by reference
to profits, income or production it may be less likely to entertain such
possibilities during negotiations.

3.3 Native title
rights to minerals

In his Perth paper, Mr Willett states 'the Federal Court has repeatedly
ruled that native title rights in minerals have previously been extinguished
by legislation and the…[government] is the owner of the minerals
in situ'. [40] This brief discussion of native title
rights and minerals is misleading.

Australian court
decisions in relation to mineral ownership and native title are equivocal.
The High Court's ruling in Mabo recognised the native title holder's
rights to exclusive possession and use of land [41]
, which has been interpreted to include the right to commercial exploitation
of minerals and timber. [42] Some subsequent Federal
Court decisions indicate that particular statutes give the relevant State/Territory
government complete title to certain minerals in that land, meaning no
native title rights to those minerals can be recognised.[43]
However, other Federal Court judgements have confirmed native title rights
to minerals.[44] A recent High Court decision dealing
with crown rights over fauna [45] heralds a revision
of popular notions of crown 'ownership' of natural resources and its extinguishing
effect on native title rights in minerals. Additionally, the High Court
decision of Croker Island delivered on 11 October 2001 also indicates
the possibility of native title rights to minerals. [46]

Court rulings in
other common law countries include, as part of native title, the rights
to minerals and other natural resources.[47] Under Australian
common law, the usual position is that the party possessing land also
has rights to the minerals (except gold and silver) in that land, [48]
unless changed by statute. The Act has not changed the situation of mineral
ownership and does not preclude native title rights in minerals. The issue
of native title rights to minerals is a matter that may be guided by the
pending High Court decision in Ward-v-Western Australia. [49]

The issue of 'extinguishment'
of native title rights to minerals is not uniform throughout Australia
- it depends on the intention of the particular State (or Territory or
Commonwealth) statute being considered. Given the lack of judicial consensus
on the issue, it is imprudent and inaccurate to indicate that the Act
and Federal Court deny Indigenous rights in mineral resources.

3.4 Native title
as an impediment to economic development

Mr Willett's study opposes 'artificial impediments' to economic development.
In his 1992 paper, [50] much of which is replicated
in the AMMEF study, 'artificial impediments' are described as 'government
action that discriminates against particular types of economic activity…without
valid economic reason'. [51] Mr Willett accepts government
regulation of mining provided it is 'well-designed government measures
that discriminate against certain activities in order to improve efficiency
by correcting market failure (excessive pollution, abuse of monopoly power,
etc)'. [52] Clearly, because native title laws are not
aimed at 'improv[ing] efficiency by correcting market failure' and have
no 'valid economic reason', the study consigns the Act to be an 'artificial

In his Brisbane presentation, Mr Willett concluded by stating that artificial
impediments need to be removed, which was also the position of his 1992
paper. [53] When asked, in Brisbane, what his conclusion
actually meant in relation to native title, Mr Willett suggested the government
should be doing more to assist underprivileged Aboriginals and these responsibilities
shouldn't be unfairly placed on miners operating in particular areas.
As explained above this analysis is based on a misunderstanding of the
nature of native title, [54] but in any event, it implies
there is little need for mining companies to engage Indigenous stakeholders.
When asked of this implication, Mr Willett elaborated no further.

If Mr Willett's position
is that governments should repeal the Act and ignore native title rights,
this should be explicitly addressed. Any such position would also need
to explain how it would:

(a) be reconciled
with standards on racial discrimination [55], and
(b) deal with compensation to be paid for the property rights being
denied. [56]

3.5 Arguments
against the right to negotiate

Mr Willett specifies four reasons why he considers the right to negotiate
provisions do not 'redress [the] severe disadvantage of Aboriginal people'.
While the basic premise of this analysis (namely, that the right to negotiate
is to redress Aboriginal disadvantage) is misconceived, [57]
the reasons advanced in support of the assertion that the right to negotiate
isn't working also require comment.

3.5.1 'Right to negotiate' assists native title parties only

Mr Willett states
the right to negotiate 'measure' only assists people who are native
title claimants or holders.

The right to negotiate may not always manifest in financial exchange
and can be one method for native title parties to ensure their concerns
are addressed before certain developments proceed. Many concerns that
native title parties raise during negotiations have nothing to do with
money and can include: identification of sites to be avoided during
construction, cultural awareness training for company personnel, and
possibilities of the company's assistance in protecting important areas.
A right to participate in the management of the land through negotiation
is a real gain and consistent with human rights standards set out above.

Even considering matters from a purely financial sense, benefits from
an agreement arising through the right to negotiate often spread more
widely than just the claim group involved. As noted earlier, native
title is based on Indigenous customs and traditions. This often results
in native title claim groups including only part of a community or family
because other members have a relationship to that community / family
(eg. marriage, in some areas of Australia) that does not include traditional
ties to the relevant land. [58] However, where some
people in a community / family receive financial benefits through the
right to negotiate, those benefits can assist non-claimant members in
that family and community.

Financial and non-financial
outcomes from negotiations can readily benefit Indigenous people other
than those involved in the particular native title claim. For example,
the outcomes can act as a precedent for other companies and other areas;
or if a significant area is protected, this can be important to other
Indigenous people (including future generations) even though they have
no legally recognisable rights in the area. At a simpler level, outcomes
from the right to negotiate show that some parts of Australian society
respect, and accommodate, Indigenous concerns. This has nation-wide
benefit to the reconciliation process

Finally, even if
one were to accept Mr Willett's argument that the right to negotiate
only benefits native title holders, it does not follow that the right
to negotiate should be removed as ineffective. Native title is a proprietary
interest and, like non-Indigenous property holders, native title holders
are entitled to the benefits that flow from being the owners of proprietary

3.5.2 Urgency
to address Aboriginal disadvantage

Mr Willett's second
complaint about the right to negotiate is that problems of Aboriginal
disadvantage need to be addressed immediately and borne equitably across
the community, and should not be dependent on the location and value
of mineral deposits. To the extent that this argument is an extension
of the previous point that the right to negotiate only benefits those
in a native title claim, this is dealt with in 3.5.1 above.

I agree wholeheartedly
with Mr Willett's view that problems of Aboriginal disadvantage need
to be addressed immediately, especially in relation to education, health,
housing and supply of essentials such as water. These are basic entitlements
of all Australian citizens and should be provided regardless of whether
a person is Indigenous or involved in a land claim. [59]
It follows that Indigenous people should not be required to bargain
with the rights that flow from their identity as traditional owners
of a particular area in order to obtain services that are provided,
as a matter of course, to non-Indigenous Australians. Indigenous rights
to maintain their culture and secure their property are separate from
and additional to citizenship rights.

3.5.3 Native Title
Act severely impedes mining and exploration

The third reason
Mr Willett offers as demonstrating the inefficacy of the right to negotiate
is that the Act 'has become a severe impediment to exploration and mining,
causing massive discouragement of the former'. [60]
Contrary to Mr Willett's views, a separate AMEEF-commissioned study
shows an increasing trend in exploration expenditure . [61]

A Western Australian
Technical Taskforce, comprising mining industry and government representatives,
cautioned that 'There are major difficulties in attempting to quantify
the impact native title has had on the State's mining industry beyond
delaying the grant of titles...because far more prominent issues...have
contributed to the fall in exploration expenditure, not only in Western
Australia but worldwide'. [62] The Taskforce outlined
the fundamental reasons for declining exploration expenditure, and these
did not include native title. [63]

3.5.4 Payments
distort otherwise efficient decisions

Mr Willett's final
point is that 'right to negotiate' payments 'distort…otherwise
efficient exploration, development and operational decisions' and this
is not addressed by the Act. An initial response is that the legislation
was not enacted to address the efficiency of exploration, development
and operational decisions.

A more important
issue that arises from Mr Willett's study is that native title detrimentally
affects mining profits. He presents financial detriment as a deficiency
of the Act. However this grievance is not really with the Act but with
the recognition of native title itself. It is the recognition of native
title that gives rise to a right to be compensated for its impairment
due to mining activities. It is the entitlement to native title that
gives rise to a right to have that property interest protected from
mining activities, either through negotiation, or through application
to a court. If a 'right to negotiate', or similar method of including
traditional owners in decisions affecting their land were not included
in the Act, native title parties could seek injunctions or other relief
to protect their rights. [64] The cost and uncertainty
of such court actions, which would be likely in the absence of a right
to negotiate, is not included in Mr Willett's analysis.

The logical conclusion
of this argument that native title is a financial detriment to mining
is that native title should be extinguished. The scope of such a proposition
was discussed in 3.4 above. In summary, the Mabo decision confirmed
Indigenous people have rights in land. The Act gives statutory recognition
and protection to these rights. It is no longer a matter of whether
mining should accommodate native title but how this should be done.
From a sustainable development perspective, such accommodation should
be consistent with universal human rights principles.

Mr Willett's study
makes no reference to positive outcomes arising from the mining-Indigenous
negotiations. One such example is the Yandicoogina Land Use Agreement.
This agreement is between Hamersley Iron and the relevant Aboriginal
people in the Pilbara region of Western Australia. Hamersley Iron, through
agreements with the traditional owners, had the mine operating ahead
of schedule (commenced 1999) and under budget. [65]
This is very different to Hamersley Iron's earlier Marandoo mine, which
encountered extensive opposition from environmental and Indigenous interests
in its development - it was two years behind schedule (commenced 1994)
and considerably over budget. [66] Adopting a 'financial
efficiency' approach to these two examples suggests negotiation as the
preferred option.

ASSESSMENT (P Hancock & M Roarty)

AMEEF commissioned
the Baseline Assessment to report on trends and issues related to sustainable
development for the Australian minerals sector and to provide information
on the mineral sector's response to sustainable development objectives.
A paper was presented in the Perth conference [67] during
which other areas were identified to be added into the Baseline Research
including 'community perception of the mineral sector and…SD [sustainable
development] issues'. [68] The draft final report presented
at the Brisbane conference addressed some of these matters.

4.1 Historical
assessment and participation of Indigenous people

The draft final report
explains, '[I]t is important in understanding present day SD issues…[to
have] an appreciation of the history of the Australian minerals industry…
The events and values of the last 150 years and particularly those of
recent generations, have influenced today's value and perceptions'. [69]
Additionally, the authors acknowledge the 'need for [exploration and mining
companies] to establish sound relationships with communities where they
operate'. [70] These approaches are sensible and commendable,
but are not consistently adhered to in the report.

As noted in my introductory
comments on human rights, Indigenous people should participate in decisions
affecting their lives, and international standards on equality also require
protection of Indigenous culture and land. It is relevant, at this point,
to consider statements of senior industry executives associated with MMSD:

  • '[T]he industry
    must take responsibility for the mistakes that have been made in the
    past ... [I]t is imperative for the sector as a whole to recognise that
    the status quo is no longer acceptable and that change needs to occur',
    Luke Danielson, MMSD Project Director, [71] and
  • 'The way forward accept that we have made mistakes and to actively engage
    with and listen to our critics to help us define priority areas to try
    to improve performance', Robert Wilson, Chair of Rio Tinto plc. [72]

In assessing historical
matters, Messrs Hancock and Roarty make no mention of the relationship
between Aboriginal people and mining. Instead, the authors state:

For 120 years
from the Ophir discovery ['official discovery of gold in 1851']…Australians
were clearly aware of the importance of the minerals industry to Australia
and held a very positive view toward it, commonly with a sense of shared
ownership and pride still remembered by older Australians - who will
still remember the euphoria for the industry in the 1960s.

This assessment ignores
an Aboriginal perspective of the mining industry, which was responsible
in many cases for further expansion and dispossession of Indigenous lands.
I am not aware of a 120 year positive view of Australia's Indigenous peoples
toward the minerals industry, or there being a sense of shared ownership
and pride or euphoria for the [mining] industry in the 1960s. The authors,
however, state these were the attitudes of Australians. Clearly, the Indigenous
perspective of mining history is not addressed in this part of the study.
I hope this will be rectified in the final report.

4.2 Native Title
Act and the 1998 amendments

The draft report
explains the enactment and amendment of the Act. The authors indicate
'the Native Title Act 1993 as established [ie. its original form when
enacted] was not working effectively in the period to early 1996…[because]
the granting of exploration and mining titles in the dominant mining states
had slowed considerably'.[74] The purpose of the Act
was not to enable the timely granting of mineral tenements, but it was
(and remains) to recognise and protect the rights and interests of Indigenous
Australians in relation to areas that are possessed under their laws and
customs. [75] This aspect is ignored, and the authors
make no reference to the numerous leases and other interests in land that
were illegally granted between 1993 and 1996, and subsequently validated
by the 1998 amendments. [76]

The draft report
discusses the 1998 amendments to the Act. The authors' coverage of the
1998 amendment process begins with the above implication that delay in
mining tenure meant the Act wasn't working effectively, and they state:

The [Commonwealth]
Government…therefore put in place a process designed to make the
Act more workable…culminat[ing] in the Native Title Act Amendment
Bill 1998…[that] was a compromise that empowered states and territories
to legislate their own native title regimes.

The 1998 amendments
are not simply 'a compromise' - in my view and that of three international
Committees [78] the amendments contravene human rights
standards and Australia's international obligations. The government was
advised of these contraventions before the amendments were passed. [79]
The CERD committee observed significant discrimination in the amended
Act [80] and recommended that the government 'suspend
implementation of the 1998 amendments and re-open discussions with Aboriginal
and Torres Strait Islander representatives'.[81] The
Parliamentary Joint Committee on Native Title and the Indigenous Land
Fund held an inquiry into the 1998 amendments. A consensus position was
not reached and two reports were published, one by the government and
one by non-government members. The government, and the government members
of the Parliamentary committee, disagreed with Australia's Human Rights
and Equal Opportunity Commission and various international bodies, and
stated that the 1998 amendments are 'consistent with Australia's international
obligations'. [82] Accordingly, there is a difference
between, on the one hand, the view of three international committees,
the Human Rights and Equal Opportunity Commission and the minority members
of the Parliamentary Committee, and, on the other hand, the position of
the government that introduced the amendments. [83]
Mining and development projects that seek to proceed using the 1998 amendments
do so on the basis there is substantial authority that these amendments
contravene human rights standards.

4.3 Alternative
State & Territory regimes

The draft report
ignores the international aspect of Indigenous relations in its discussion
of alternative regimes in Appendix A. The draft report notes the Senate
disallowed some regimes and states:

It has been
claimed by a number of industry commentator's [sic] that these disallowance's
[sic] are related to philosophical and political motives on the part
of the opposition parties as the Commonwealth Attorney Generals [sic]
Department had cleared these legislative pieces in respect of compliance
with Commonwealth legislation.

The Aboriginal and
Torres Strait Islander Social Justice Commissioner and the International
Committee on the Elimination of All Forms of Racial Discrimination, noted
that state regimes reduced the protection extended to native title rights.
[85] While it is sometimes difficult, from Parliamentary
debate, to identify every motive leading to a particular outcome, those
speaking for the majority of the Senate indicated they disallowed the
regimes because of concerns over Indigenous rights. [86]

The proposed laws,
which contravene Australia's international obligations, are characterised
in the draft report as 'legislation…to streamline the right to negotiate'.
[87] The majority view of the Senate saw these proposed
laws differently:

The Native Title
(State Provisions) Act severely limits the native title rights of Aboriginal
people in relation to pastoral leasehold. The section 43A scheme, which
is part of that act, replaces the right to negotiate over pastoral lease
and other crown land such as national parks with a much weaker consultation
process. The right of native title holders to negotiate about mining
and the compulsory acquisition of their land will be replaced with these
lesser consultation processes. That is why [the majority of the Senate]...will
be disallowing these regulations. They weaken the rights of Aboriginals
to negotiate - the rights recognised in the Mabo decision and the Native
Title Act.

The Senate record
shows, therefore, that the schemes were disallowed because of concerns
over their impact on Indigenous rights - an aim to observe international
human rights. The draft report's view indicates that such an aim was a
'philosophical and political motive'.[89] This characterisation
suggests the authors have a preference, or perhaps a 'philosophical or
political motive', against those rights.

1. From
AMEEF website
(accessed 18 October 2001)

2. The
United Nations General Assembly, by consensus including Australia, outlined
a program toward sustainable development, in which it emphasised 'Economic
development, social development and environmental protection are interdependent
and mutually reinforcing components of sustainable development ... [R]espect
for all human rights and fundamental freedoms, including the right to
development, transparent and accountable governance in all sectors of
society, as well as effective participation by civil society, are also
an essential part of the necessary foundation for the realization of social
and people-centred sustainable development', (19 September 1997), UN document
A/RES/s-19/2, para 23.
See also Rio Declaration on Environment and Development (12 August
1992) UN document A/CONF.151/26 (Vol.I), principles 1 & 3; Declaration
on the Right to Development
(4 December 1986) UN document A/RES/41/128,
articles 1-3, 5, 6, 8; and Declaration on Social Progress and Development
(11 December 1969) UN General Assembly resolution 2542 (XXIV),
principles 1, 2 and 5.

3. The
Rio Declaration on Environment and Development states 'Indigenous people
and their communities...have a vital role in environmental management
and development because of their knowledge and traditional practices.
States should recognize and duly support their identity, culture and interests
and enable their effective participation in the achievement of sustainable
development', principle 22.

4. s46C,
Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth)
and s209, Native Title Act 1993 (Commonwealth)

5. Preamble
to the Universal Declaration of Human Rights (see footnote 11, below).

6. eg.
The Rio Tinto mining group 'have adopted a formal policy on human rights
based on our support for the United Nation's Universal Declaration of
Human Rights',
Rio Tinto website
accessed 1 November 2001

7. Australia
joined this treaty in September 1975.

8. Australia
joined in December 1975.

9. Australia
joined in August 1980.

10. The
Commonwealth Native Title Act (Act) states, in the preamble, 'The Australian
Government has acted to protect the rights of all of its citizens, and
in particular its Indigenous peoples, by recognising international standards
for the protection of universal human rights and fundamental freedoms
through the ratification of the [ICERD, ICESCR and ICCPR]'.

11. The
Universal Declaration of Human Rights (UDHR) was passed, by consensus,
by the United Nations General Assembly in 1948. The UDHR specifies basic
human rights principles of international law.
The Act's preamble specifically confirms Australia's 'acceptance of the
Universal Declaration of Human Rights', and the Australian Government
has acknowledged the UDHR to be 'the foundation of the international human
rights system', Department of Foreign Affairs and Trade, Human Rights
Manual (1998, 2nd Edition) Commonwealth of Australia, p1.
The human rights treaties identified in this paper are implemented with
the monitoring and assistance of treaty bodies, formed from among the
countries that have joined the relevant treaty. Guidance on a treaty's
interpretation and requirements can be taken from comments and observations
of the treaty bodies. These treaty bodies include the: Committee on the
Elimination of Racial Discrimination (CERD) which operates under ICERD,
the Committee on Economic, Social and Cultural Rights which operates under
ICESCR, and the Human Rights Committee which operates under ICCPR.

12. Article
17 of the UDHR, states 'Everyone has the right to own property alone as
well as in association with others'. Article 5 of ICERD provides: '…States
Parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction
as to race, colour, or national or ethnic origin, to equality before the
law, notably in the enjoyment of the…right to own property alone
as well as in association with others'.

13. Judge
Tanaka of the International Court of Justice stated, in the South West
Africa Case
, that 'The principle of equality before the law does not
mean the absolute equality, namely the equal treatment of men without
regard to the individual, concrete circumstances, but it means the relative
equality, namely the principles to treat equally what are equal and unequally
what are unequal... To treat unequal matters differently according to
their inequality is not only permitted but required', (1966) ICJ Rep 6,

14. The
requirement of substantive equality in relation to the protection of Indigenous
peoples' property rights has been further clarified by CERD, which explained
that countries in ICERD must 'protect the rights of Indigenous peoples
to own, develop, control and use their communal land, territories and
resources' CERD General Recommendation XXXIII Indigenous Peoples
(18 August 1997), para 5

15. See
Human Rights & Equal Opportunity Commission Native Title Report
(2000) p171

16. The
Human Rights Committee, in relation to minority and Indigenous rights
under ICCPR explained that countries joining ICCPR must take steps to
protect those rights 'With regard to the exercise of the cultural rights
protected under article 27, the Committee observes that culture manifests
itself in many forms, including a particular way of life associated with
the use of land resources, especially in the case of Indigenous peoples...
The enjoyment of those rights may require positive legal measures of protection',
General Comment 23 The rights of minorities (8 April 1994) paragraph

17. ICCPR's
article 27 states 'In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied
the right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to use
their own language'.

18. '[C]ulture
manifests itself in many forms, including a particular way of life associated
with the use of land resources, especially in the case of Indigenous peoples',
Human Rights Committee General Comment 23 The rights of minorities
(8 April 1994) paragraph 7

19. 'A
State may understandably wish to encourage development or allow economic
activity by enterprises. The scope of its freedom to do so is not to be
assessed by reference to a margin of appreciation, but by reference to
the obligations it has undertaken in article 27. Article 27 requires that
a member of a minority shall not be denied his right to enjoy his culture.
Thus, measures whose impact amount to a denial of the right will not be
compatible with the obligations under article 27. However, measures that
have a certain limited impact on the way of life of persons belonging
to a minority will not necessarily amount to a denial of the right under
article 27' Human Rights Committee in Länsman-v-Finland (1994)
UN document CCPR/C/52/D/511/1992, para 9.4.

20. 'The
right to enjoy one's culture...has to be placed in context... [ICCPR]
article 27 does not only protect traditional areas of livelihood of national
minorities. ...[Cultural practices] may have adapted their methods...over
the years and [now be] practiced...with the help of modern technology
[which] does not prevent them from invoking article 27 of the Covenant',
finding of the Human Rights Committee in Länsman-v-Finland (1994)
UN document CCPR/C/52/D/511/1992, para 9.3

21. CERD
General Recommendation XXXIII Indigenous Peoples (18 August 1997),
para 4(c)

article 5(c) emphasises the need for countries to 'guarantee the right
of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of...Political
rights, in particular the take part in the Government as well
as in the conduct of public affairs at any level and to have equal access
to public service'.
Article 1 of ICCPR and ICESCR emphasise peoples right of self-determination
and to 'freely determine their political status and freely pursue their
economic, social and cultural development'.

23. In
its General Comment on article 27 of the ICCPR, the Human Rights Committee
stated 'With regard to the exercise of the cultural rights protected under
article 27, the Committee observes that culture manifests itself in many
forms, including a particular way of life associated with the use of land
resources, especially in the case of Indigenous peoples. That right may
include such traditional activities as fishing or hunting and the right
to live in reserves protected by law. The enjoyment of those rights may
require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions
which affect them' (8 April 1994) General Comment 23, para 7.

24. CERD
General Recommendation XXIII Indigenous Peoples (18 August 1997)
para 4(d).

25. From
AMEEF website (accessed 18 October

26. K
Willett Managing mineral wealth for sustainable economic development:
work in progress
6 July 2001

27. K
Willett Managing Australian mineral wealth for sustainable economic
development: depletion, resource curse and greenhouse effects
7 September

28. Managing
mineral wealth
6 July 2001, p23

29. Managing
mineral wealth
6 July 2001, p23

30. Managing
mineral wealth
6 July 2001, p2

31. Managing
mineral wealth
6 July 2001, p25

32. 'Six
members of the Court…are in agreement that the common law of this
country recognizes a form of native title which…reflects the entitlement
of the Indigenous inhabitants, in accordance with their laws or customs,
to their traditional lands', (1992) 175 CLR 1 at 15 per Mason CJ and McHugh

33. s3,
Native Title Act. The remaining three 'main objects' of the Act set out
in section three are to establish procedures for dealing with native title

34. s223,
with the additional requirements that the particular native title claimants
must have connection with the relevant land/waters, and the rights must
also be recognised by Australian common law.

35. Article
27 of the ICCPR states 'In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practise their own religion,
or to use their own language'.

36. 'The
result of [the right to negotiate under the Act] has been interference
with an efficient allocation of resources and destruction of imputed nett
value of minerals', Managing Mineral Wealth 6 July 2000, p25

37. 'The
'right to negotiate' provisions of the Native Title Act 1993 have given
native title holders and registered claimants a powerful toll [sic - tool?]
to appropriate a portion of imputed nett value of minerals', Managing
mineral wealth 6 July 2001, p25.

38. Native
Title Act, s38(2)

39. Managing
mineral wealth
6 July 2001, p24

40. Managing
mineral wealth
6 July 2001, p25

41. The
High Court ordered in Mabo, that the traditional owners 'are entitled
as against the whole world to possession, occupation, use and enjoyment
of the [relevant] lands', (1992) 175 CLR 1 at 217

42. R
Bartlett Native Title in Australia (2000) p170

43. In
the Wik litigation (63 FCR 450 at 500-2), the trial judge decided
that specific Queensland legislation extinguished any native title rights
to minerals and petroleum. This aspect was not subsequently addressed
in the High Court's ruling in the Wik case, and the first instance decision
on mineral rights has since been judicially doubted because of subsequent
High Court rulings about government 'ownership' of resources: Justice
North in the (minority of) the full Federal Court appeal decision in Ward-v-Western
observed of the Federal Court decision in Wik that 'the
conclusion that the mining legislation in Queensland conferred full beneficial
ownership on the crown sufficient to extinguish native title cannot be
regarded as correct' (2000) 170 ALR 159 at para 843.
The majority decision of the Full (Federal) Court in Ward-v-Western
ruled that Western Australian legislation precluded native
title rights being recognised for minerals (Beaumont and von Doussa JJ,
170 ALR 159 at 292, para 541).
In Yarmirr-v-Commonwealth, the trial Judge indicated Northern Territory
and Commonwealth legislation prevented native title rights in certain
minerals in the Northern Territory (156 ALR 370, para 158). The Judge
noted his decision was 'entirely consistent' with the Queensland appeal
court's decision in Yanner-v-Eaton; a decision that has since been
overturned by the High Court on appeal. The Federal Court's appeal decision
in Yarmirr (168 ALR 426), appealed to the High Court, didn't address the
issue of crown ownership of minerals and its relationship with native
title rights. The High Court decision, handed down on 11 October 2001,
also didn't address the issue, with the exception of Justice Kirby (see
footnote 46 below).

44. In
the trial decision in Ward-v-Western Australia, the Court ordered
that the native title parties have rights to use and enjoy the resources
of the area and control others use of these (orders, para's 3(e) and (f));
although the Judge also recognised rights created in valid mining leases
(Schedule 3).
Justice North, in the (minority of the) appeal decision in Ward-v-Western
, stated 'Aboriginal people had rights to exploit resources
of the land under traditional law. It is not to the point that the modern
means of exploitation of the resources may be difficult from traditional
methods … [T]he powers…under the Mining Act 1978 (WA)…confer
on the Crown a limited power to administer a system for the orderly exploitation
of a community asset. …[T]he conferral of such a power on the Crown
does not extinguish native title' 170 ALR 159, para's 829 and 841.

45. Yanner-v-Eaton
(1999) 166 ALR 258

46. Yarmirr-v-Commonwealth
[2001] HCA 56 (11 October 2001). Note Justice Kirby addressed the issue
of native title rights to minerals, saying '[I]t is not enough merely
to allow Indigenous peoples to carry out their traditional economic activities
without legal protection for their exercise of control and decision-making
in relation to developments (including the use of natural resources …
[T]he principle of non-discrimination must include a recognition that
the culture and laws of Indigenous peoples adapt to modern ways of life
and evolve in a manner that the cultures and laws of all societies do'
(para 295). Although Justice Kirby was in the minority in other respects,
none of the other 3 judgements disagreed with his Honour's comments on
this issue.

47. eg.
in the United States of America (United States-v-Klamath and Moadoc
304 US 119 (1938)) and Canada (Delgamuukw-v-British Columbia
[1998] 1 CNLR 14, para 122)

48. Commonwealth-v-New
South Wales
(1923) 33 CLR 1

49. Appeal
heard by the High Court in March 2001, decision expected February 2002

50. K
Willett Clipping the Wings of Eagles: Artificial Impediments to Mining
and Minerals Processing in Australia (
1992) Institute of Public Affairs

51. Clipping
the Wings
, p5

52. Clipping
the Wings
, p5

53. Clipping
the Wings
, pp49-51

54. See
section 3.1 (above)

55. Previous
Western Australian and Queensland attempts to reduce native title rights
through State legislation have been held by the High Court to be racially
discriminatory and therefore invalid because they contravene the Racial
Discrimination Act 1975 (Commonwealth) which implements parts of ICERD.
The Queensland scheme was considered in the first Mabo litigation: Mabo-v-Queensland
(1988) 166 CLR 186. The Western Australian legislation was passed after
the High Court had recognised native title rights. The High Court considered
that the alternative rights with which the Western Australian parliament
intended to replace native title 'fell short of the rights and entitlements
conferred by native title and enjoyment of which is protected by...the
Racial Discrimination Act' Western Australia-v-Commonwealth (1995)
128 ALR 1 at 34.

56. The
Commonwealth Constitution requires the acquisition of a person's property
rights to be 'on just terms': s51(xxxi).

57. See
section 3.1 (above)

58. This
type of situation was noted by Justice Olney in Yarmirr-v-Northern Territory:
'[N]ot all Croker Island residents are members of a relevant estate [or
native title claimant] group. Those who are not members are not regarded
as having, nor do they claim, any traditional rights within the claim
area, and this is notwithstanding that their physical connection with
Croker Island may go back several generations' (1998) 157 ALR 320, para
Another reason why not everyone in a community / family may be included
in a native title claim arises from the difficulties in intersecting Indigenous
law and the (mainstream) Australian legal system. Native title claims
can only be made under the Native Title Act if they comply with a myriad
of statutory rules that have little reflection in Indigenous custom, for

  • the relevant
    area needs clearly marked boundaries and coordinates in a map: Act s62(2),
  • the land within
    these boundaries cannot cover various areas (according to their current
    tenure or history) even though these may be part of the traditional
    lands: Act s61A(2),
  • the 'group' responsible
    for this artificial-constructed area must then be described so that
    every person can be identified: Act s61(4)),
  • every right 'claimed'
    in the claim area needs to be listed (but, again, only certain rights
    are allowed to be listed, regardless of Indigenous custom): Act s62(2)),
  • the ways in which
    those rights are exercised also needs to be detailed: Act s62(2).

These 'rules' under
the Act are generally an unusual way for Indigenous people to perceive
their relationship to traditional country, and it is common for any resultant
claim to not exactly represent Indigenous perception of their community's
relationship with the land. Accordingly, it shouldn't be surprising that
any outcomes received by a defined claim group for a defined area under
the Act might be distributed according to the particular Indigenous customs
for that area and not necessarily identical to the way their interests
are explained in the register of the Native Title Tribunal. This may be
a frustrating and difficult point for non-Indigenous people to comprehend.
One way to try to understand the issue is to imagine the difficulty in
having to write down the exact parameters of one's relationship with a
parent: what are the boundaries of the relationship, what are the 'rights',
how are these 'exercised' etc.

59. The
Human Rights Committee confirms that specific cultural rights held by
a certain group are 'conferred on individuals belonging to minority groups
and [are]...distinct from, and additional to, all the other rights which,
as individuals in common with everyone else, they are already entitled
to enjoy under the Covenant [of Civil and Political Rights]', General
Comment 23 The rights of minorities
(8 April 1994) paragraph 1.

60. Managing
mineral wealth
6 July 2001, p25

61. Baseline
Assessment Australia Final Report (draft) (24 August 2001), p28

62. Technical
Taskforce on Mineral Tenements and Land Title Applications Discussion
(August 2001), p12

63. The
Taskforce observed that 'The fundamental reasons for the drop in mineral
exploration in recent years have been [1] a period of declining commodity
prices, in some cases to record low levels...[2] continued uncertainty
in international gold markets...and [3] world exploration expenditure...has
steadily declined since [the 1997 record of US$5.2 billion]' Discussion
Paper (August 2001), pp11-12

64. see
Impact of the right to negotiate on mining in Human Rights & Equal
Opportunity Commission Native Title Report (1998), pp107-110. The text
refers to a study by the National Institute of Economic and Industry Research
that 'concluded that the benefits of mining can be shared with native
title holders without impacting significantly on the profits of mining
companies or the growth of the Australian economy', p107

65. See
(accessed 2 November 2001)

66. Newspaper
article Your mine and ours [discussing Hamersley's more successful Yandicoogina
operation] (August 1998) Financial Review
Hamersley Iron acknowledges the difficulties of earlier practices 'In
the 1960s, when Hamersley began its operations, mining companies typically
did not consult or engage with Aboriginal people. This approach continued
for many years and for Hamersley it culminated in conflict over the Marandoo
development in the early 1990's. Since 1992 Hamersley has steadily worked
to overcome the problems of the past' Hamersley Iron Social and Environment
Report (1999) p18

67. Baseline
Assessment Australia Interim Report (6 July 2001)

68. Baseline
Assessment Australia Final Report (draft) (24 August 2001), p9

69. Final
(draft), p17

70. Final
Report (draft)
, p37

71. during
interview reported at
(accessed 27 September 2001)

72. reported
in Mining Magazine September 2001, p136

73. Final
Report (draft)
, p18

74. Final
Report (draft)
, p34

75. see
section 3.1 (above)

76. Various
grants were made by governments on the 'pre-Wik assumption that native
title had been extinguished on pastoral leases. [While this may have been
a genuine misunderstanding for some governments, it was not the case in
Western Australia] It was always evident that the courts were unlikely
to conclude that native title had been extinguished by the grant of pastoral
leases in that state. What the validation will achieve in Western Australia
is that assurance of those grants and interests blatant non-compliance
with the Native Title Act', Bartlett, p54
See also 'Measuring the validation provisions against human rights standards'
HREOC Native Title Report (199), pp52-55

77. Final
Report (
draft), p34-35

78. Observations
criticising the 1998 Act amendments have been made by three treaty bodies:
CERD (24 March 2000, see United Nations document CERD/C/304/Add.101),
the Human Rights Committee (28 July 2000, UN document CCPR/CO/69/AUS),
and the Committee on Economic, Social and Cultural Rights (1 September
2000, UN document E/C.12/1/Add.50).
See also International Review of Indigenous issues in 2000 from Australia
from Human Rights & Equal Opportunity Commission web-site

79. see,
eg. Human Rights & Equal Opportunity Commission Native Title Report

80. The
ICERD Committee observed that there are four areas of particular concern
that 'discriminate against Indigenous title-holders under the [1998] amended
Act. These include: the Act's 'validation' provisions; the 'confirmation
of extinguishment' provisions; the primary production upgrade provisions;
and restrictions concerning the right of Indigenous title-holders to negotiate
non-Indigenous land uses', CERD Concluding Observations (18 March 1999,
United Nations document CERD/C/54/Misc.40/Rev.2, para 7).

81. CERD
concluding observation (18 March 1999, United Nations document CERD/C/54/Misc.40/Rev.2,
para 11).The Human Rights Committee, following its concerns with the 1998
amendments, recommended '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', (28 July 2000) UN document CCPR/CO/69/AUS,
para 10.

response to the Sixteenth Report of the Parliamentary Joint Committee
on Native Title and the Aboriginal and Torres Strait Island Land Fund
(8 October 2001).

83. For
further information, see Nation in dialogue Human Rights &
Equal Opportunity Commission Native Title Report (2000), pp5-46

84. Final
Report (draft)
, p66

85. The
CERD Committee observed that 'after [examining] the provisions of the
Native Title Act as amended in 1998, the devolution of power to legislate
on the 'future acts' regime has resulted in the drafting of state and
territory legislation to establish detailed 'future acts' regimes which
contain provisions further reducing the protection of the rights of native
title claimants that is available under Commonwealth legislation. Noting
that the Commonwealth Senate on 31 August 1999 rejected one such regime,
the Committee recommends that similarly close scrutiny continue to be
given to any other proposed state and territory legislation to ensure
that protection of the rights of Indigenous peoples will not be reduced
further' Concluding Observations on Australia (24 March 2000, see
United Nations document CERD/C/304/Add.101, para 8) See also Human Rights
& Equal Opportunity Commission Native Title Report (2000), page 158

86. The
main Labour speaker said '[T]he same point...has led us to make a decision
to disallow the regimes, because the three regimes [proposed by the governments
of Western Australia, Northern Territory, and Queensland] have sought
to strip away the right to negotiate. We feel that it fails the test of
fairness' Senator Bolkus as reported in Senate 2000, Debates, No.16,
The main Democrat speaker referred to 'The principles of non-discrimination
set out in the Racial Discrimination Act, 1975 and binding on Australia
under CERD and under international law [that] must be fully respected'
and indicated the conflict between the 1998 Act amendments and the international
standards, saying '[T]he native title amendments which were passed in
1998 are invalid and, when eventually they are challenged, will fall over.
So one of the fundamental principles that the Democrats base their support
for this disallowance motion on is the fact that the State regimes are
based on legislation which, at the end of the day, will not hold up',
Senator Woodley as reported in Senate 2000, Debates, No.16, p19520
The speaker from the Greens party said 'I will be voting for this disallowance
because the regulations brought forward from Western Australian legislation
do not uphold the spirit of the legislation that has gone through this
parliament in the last decade of the High Court rulings that Indigenous
people should have a real say in what is happening on their land', Senator
Brown as reported in Senate 2000, Debates, No.16, p19524

87. Final
Report (draft)
, p66

88. Senator
Bolkus as reported in Senate 2000, Debates, No.16, p19526

89. Hancock
and Roarty do not specifically state their own views, but say 'It has
been claimed by a number of industry commentators that...'. To present
a position in such a way, without referring to any other viewpoints on
a matter, suggests the authors' endorsement of the claims.


Last updated 12 June 2002.