Submission by the Aboriginal and Torres Strait Islander
Social Justice Commissioner
‘Towards An Alternative Settlement Framework For Native Title’
Consultation Paper issued by the Office of Native Title, Department of the Premier and Cabinet, Government of Western Australia
I welcome the Western Australian Government’s commitment to developing an Alternative Settlement Framework to resolve native title claims, following the standards of recognition and extinguishment set by the Yorta Yorta1 and Miriuwung Gajerrong2 decisions, respectively. I also note the Government’s commitment to a fair and just relationship between the Government and Aboriginal people in Western Australia, as set out in the Statement of Commitment.3
In commenting on the proposed Alternative Settlement Framework, I will first provide some comments on the native title system and then address each of the questions set out in the Consultation Paper (Towards an Alternative Settlement Framework for Native Title).
Test for recognition
In the Yorta Yorta decision the Court confirmed that to prove native title, claimants must show that the traditional owners group has existed as a community continuously since the acquisition of sovereignty by the British, and that in all that time they have continued to observe the traditional laws and customs of their forebears. This test sets very difficult elements of proof for native title claimants to satisfy.
The test for recognition means that in practice, native title is less likely to be proved in the parts of Australia where dispossession and disruption to Aboriginal culture was most effective – the South East and coastal parts of Australia. Conversely, native title is most likely to be proved in areas where dispossession was less - these areas tend to be land that European settlers did not want for housing, grazing or mining.
Test for extinguishment
Even if native title claimants’ relationship to their land withstands the ‘continuous connection’ test for recognition, the court will, as a matter of law, determine whether the title has been extinguished by the creation of non-Indigenous interests (whether current or expired) over the same land.4 This can be described as the test for extinguishment.
Extinguishment of native title can be enacted under the common law or the NTA. The common law test set out by the High Court in Miriuwung Gajerrong compares the legal nature of the non-Indigenous property right (given by the statute or executive act which created the right), with the nature of the native title rights (given by traditional laws and customs). Where there is an inconsistency between the legal incidents or characteristics of these two sets of rights, then native title is either completely or partially extinguished to the extent of any inconsistency. As noted by my predecessor in the Native Title Report 2002, this test does not allow for co-existence, where rights are negotiated and mediated to enable a diversity of interests to be pursued over the same land.5
The NTA also provides that ‘previous non-exclusive possession acts’6 will extinguish native title to the extent of any inconsistency7 and also validates acts of government that took place before the High Court’s decision in Wik. Extinguishment is permanent.8 Extinguished native title rights cannot be revived, even once the extinguishing act ceases, and regardless of whether the traditional owner group maintains continuing connection with the land.9
Human rights analysis
My predecessors and I have advised that the extinguishment of Indigenous interests in land for the benefit of non-Indigenous interests is racially discriminatory. Not only because of the rule that native title is always wiped out by inconsistent non-Indigenous rights, but also because the process of extinguishment differs from the process applied when non-Indigenous property rights are abrogated. On an ordinary approach to statutory interpretation, the courts require very plain words to reveal a legislative intention to abrogate rights of private property. Title or ownership is not treated as extinguished, expropriated, acquired or destroyed unless that is effectively the only possibility.10 The High Court’s decision in Ward departs from this principle, treating native title differently.
Similarly, previous Social Justice Commissioners have expressed concern at the outcomes of the Yorta Yorta decision and noted that:
Emerging from the High Court is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their cultural and property rights, but rather one where the law becomes a barrier to their enjoyment and protection.11
This is inconsistent with international human rights including the right to protection of culture, under Article 27 of the International Covenant on Civil and Political Rights, which recognises that:
... protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.12
The right to the protection of culture also imposes obligations on State parties to both protect cultural rights and implement positive measures to ensure Indigenous groups can maintain and develop their cultural rights.
In contrast, the Yorta Yorta decision confirms the damage to Indigenous cultures and societies by colonisation and denies Indigenous societies the opportunity to ensure the continued survival and ongoing development of their cultural, religious and social identity through the recognition of rights.
There is also an important relationship between equality and the protection of culture. The International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) requires that States prohibit and eliminate racial discrimination and guarantee the right of everyone to equality before the law, including the right to own property alone as well as in association with others.13 This includes the right of Indigenous people to own property within a communal context and consistent with their laws and customs.14 The test for recognition and extinguishment significantly limits the opportunity for Indigenous Australians to own their land consistent with their own laws and customs. Instead, the NTA and High Court decisions have established a system where non-Indigenous interests are provided with greater protection and Indigenous rights are easily extinguished.
The interpretation of the Native Title Act 1993, through the High Court decisions in Yorta Yorta and Miriuwung Gajerrong, provide very limited forms of protection and recognition of Indigenous rights and creates a system that is limited in its capacity to deliver land justice to Indigenous Australians.
Implications for an Alternative Settlement Framework
In recognition of these difficulties, the Western Australian (WA) Government is offering an Alternative Settlement Framework that provides ‘a practical process to recognise the land and water related aspirations of native title claimants.’15 In addition, the Alternative Settlement Framework seeks to provide ‘a range of options to settle native title claims and create a more certain environment for all interest-holders in the land and water that is subject to native title’.16 The Alternative Settlement Framework is based on the proposal that native title claimants be offered:
… the opportunity to negotiate an alternative settlement providing for the delivery of appropriate and tangible outcomes to claimants in exchange for the surrender of any possible native title rights and interests over the claim area. 17
While I support the principle of providing an alternative settlement regime for the resolution of claims, I have a number of concerns with the Alternative Settlement Framework proposed by the WA Government.
First, the Alternative Settlement Framework requires the surrender of native title claims on the basis of the existing standards set by Yorta Yorta and Miriuwung Gajerrong. As set out above, these two decisions are inconsistent with important human rights, and they provide a very limited basis for the negotiation of alternative settlements.
Second, while the Alternative Settlement Framework provides some rights in exchange for the extinguishment of native title, these rights are also limited in nature and do not provide for the adequate recognition of Indigenous rights and interests. The Alternative Settlement Framework will need to offer good alternative procedural rights, otherwise it will not be an attractive option for claimants.
The Court processes of native title provide an impartial and transparent mechanism for the resolution of claims. Court processes include the opportunity to appeal decisions and have them reviewed by a superior court. In contrast, decisions in relation to extinguishment and connection through the Alternative Settlement process appear to be determined by the state government. This may raise concerns about the impartiality of the government in this role, and its capacity to deliver transparent decisions, capable of review by an independent authority. This issue should be considered in the Alternative Settlement Framework proposal.
In principle I am supportive of an Alternative Settlement process that provides an opportunity for land justice to native title claimants. Such an opportunity should ensure that procedural rights are protected and that settlement outcomes are directed towards meeting the land aspirations of native title claimants.
Notwithstanding, in order to fully protect the rights of native title claimants, I urge the WA Government to offer the Alternative Settlement Framework arrangements without requiring the surrender of native title rights. By providing coexisting instruments for the recognition of rights to land, the WA Government will increase opportunities to achieve its stated aim; ‘tangible outcomes’ for claimants. The dual option allows two possibilities, it allows claimants to pursue a native title determination should the Alternative Settlement Framework agreement prove unworkable, and it allows claimants to choose the process that best suits their circumstances.
In a practical sense, the Alternative Settlement Framework can potentially compliment native title. In some instances it may be desirable to have a native title determination and an agreement over separate parts of a claim area. This type of arrangement would suit where there has been partial extinguishment over a claim area, or where the connection to land is less established in some parts of the claim area, though not in others.
There is international precedent for coexisting arrangements. The indigenous peoples of Canada are afforded legislative rights that protect land claim agreements alongside legislative rights under land treaties. Under the Canadian Constitution Act 1982, land claim agreements and treaty rights have legislative protections without any derogation of these rights in preference to other agreements or rights. The Native Title Report 2003 18of my predecessor sets out a detailed discussion of these rights entitled: The Comprehensive Land Claims Settlements Process.
Comprehensive land claims negotiations are based on the assertion of continuing Aboriginal title to lands and natural resources. The federal policy stipulates that land claims may be negotiated with Aboriginal groups in areas where claims to Aboriginal title have not been addressed by treaty or through other legal means…
…Since 1995, Canada has explored new approaches to achieving certainty with regard to lands and resources as an alternative to the traditional approach based on exchange and surrender of Aboriginal land rights. From 1995 self-government arrangements can be negotiated simultaneously with land and resources as part of a comprehensive land settlement. Importantly, such self-government rights can be constitutionally protected under s.35 of the Canadian Constitution Act. In 1998 the federal government affirmed that treaties, historic and modern, will continue to be the foundation of the relationship between the Aboriginal people and the Crown.19
Q1: Please provide any feedback you may have in relation to the use of an Area Agreement ILUA as the legal mechanism for an alternative settlement.
Native title agreements are an important tool in defining the rights of native title holders over their land. I welcome negotiation and agreement-making as a way of establishing a stable and enduring basis for a dynamic and long term relationships between Indigenous and non-Indigenous people over land. However, I am concerned that the proposed Alternative Settlement Framework is based on the premise that Indigenous peoples relinquish any native title rights they may have to land.
In my view, substantive outcomes that are just and equitable are only achieved if there are minimum standards in place that require recognition and protection of the human rights of Indigenous people. Therefore, agreement making must be based on the principles of equality and non-discrimination so that Indigenous and non-Indigenous interests are given equal protection. The practical application of human rights principles are described at Q3.
Q2: Would connection material presented to address questions raised in paragraph 41 represent an appropriate threshold to enter into negotiations for an alternative settlement?
I expressed concern about the use of connection reports in my submission to the Inquiry into Indigenous Land Use Agreements by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. While I welcome a lower threshold requirement than that provided by the NTA, my concerns with the proposed connection threshold remain unchanged.
The proposed connection threshold does not foster a long and enduring relationship between stakeholders to the process. Arguably, the evidentiary framework (outlined at pages 12 and 13 of the consultation paper for this submission) has a primary purpose of satisfying the government of the legitimacy of the claim.
In addition, it is unclear how the legitimacy of the connection material will be adjudicated. Adjudication by the State may raise issues of impartiality and transparency, as well as the need for appropriate review mechanisms. The link between the level of connection and the outcomes of the agreement making processes are also unclear. In my view, it would be counter productive if the agreement outcomes for Indigenous people are contingent on the level of connection that is deemed to exist – particularly when connection is determined by non-Indigenous standards.
Q3: Please provide any comments you have regarding the conditions upon which an alternative settlement may be offered.
Effective participation and equality should form the basis for any agreement making. Native title agreement making should be based on human rights principles. Agreement making processes that are consistent with human rights principles comprise the following:
- native title interests have the same level of protection as non-Indigenous interests;
- native title holders do not have to give up native title in order to access or enjoy benefits that arise from negotiations based on the existence or prior existence of their native title;
- agreements include procedural rights that allow Indigenous land holders to actively participate in the development of their lands;
- negotiation of agreements encourages and allow continued observance of Indigenous laws and customs;
- negotiation of agreements recognises Indigenous governance of their tradition lands;
- native title is recognised as a group right and that the inter-generational aspect of the right is protected;
- native title is recognised and protected for its cultural, religious and social significance; and
- native title parties’ ‘connection’ to land is not interpreted restrictively.
Q4: Please provide your views on the requirement that a body corporate hold and manage the outcomes for the native title claimants, including what might be the appropriate model(s) for this body.
The elements of good governance must be determined by traditional owners in consultation and partnership with their representatives and governments. I agree with the views expressed in the consultation paper that it is necessary to ensure appropriate governance arrangements for managing the outcomes for native title groups. Importantly, the WA Government must ensure that governance arrangements are negotiated with the free, prior and informed consent of native title groups.
I welcome the WA Government’s commitment to establishing and maintaining the body corporate governance structure. It is important that corporate bodies charged with responsibility for managing the outcomes are provided with sufficient resources and support to carry out their functions. The under funding of bodies such as Prescribed Bodies Corporate (PBCs) and Native Title Representative Bodies (NTRBs) in the native title system has proved detrimental to the interests of Indigenous native title groups. The WA Government must ensure that bodies corporate established under the proposed Alternative Settlement Framework do not operate under similar constraints. It is also important that the terms and conditions for funding and support are consistent with achieving long term gains, and are not overly prescriptive or unnecessarily burdensome.
Q5: Please comment on what you think is the role of other respondents and interested parties in an alternative settlement.
At this stage, the basis of the Alternative Settlement Framework is the extinguishment of native title rights and interests. If the extinguishment condition is maintained, respondents should have no concerns in relation to the protection of their rights. This means that they do not need to participate in this process. However, respondent participation may be necessary to negotiate shared use of land. In this way, negotiation regarding land use matters need only occur after the key issues are concluded between the State and native title claimants.
Q6: What do you see as acceptable or important in the forms of recognition discussed as potential outcomes of an alternative settlement?
The proposed Alternative Settlement Framework has as its starting point the surrender of any native title rights and interests in exchange for a range of possible land agreement outcomes. The WA Government should be mindful that outcomes described under ‘recognition’ are negotiated and supported by the Indigenous groups involved in the agreement making process. Arguably, the information described in points 69 -72 of the Consultation Paper could be perceived as providing very little in the way of outcomes at all. As I noted earlier, an agreement making process consistent with Indigenous human rights should be based on a principle of non-extinguishment.
Further, and in relation to point 72 of the Consultation Paper, government agreement making should aim to ensure the effective participation of Indigenous peoples in decisions regarding the use of land and/or water in their claim area. These decisions should then lead to procedural rights. In my view, consultation forms part of this approach, but it must be accompanied by genuine engagement with Indigenous groups. Agreement making processes based on consultation alone do not satisfy the principles of equality and effective participation required under international law.
Q7: What factors do you consider important in incorporating Indigenous culture and heritage protection and promotion into an alternative settlement?
Most importantly, outcomes in the form of cultural heritage protection must be negotiated in genuine partnership with Indigenous claimants. As described in the Native Title Report 2003, a participative approach to decision making regarding development will ensure that development outcomes are not harmful to the cultural identity of the traditional owners. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides a basis for the protection of Indigenous peoples' cultural identity:
Members in ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
The United Nations Human Rights Committee interprets Article 27 of the International Covenant on Civil and Political Rights as meaning that Indigenous people have a unique and profound relationship to their land which extends beyond economic interests to cultural and spiritual identity. Consequently the impact of developments on Indigenous people's land is also an impact on this deeper relationship. In order to ensure cultural protection, the WA Government should pursue legislative measures to protect cultural heritage. Cultural heritage legislation will ensure the protection of Indigenous cultural rights in an ongoing sense, meaning that it will be applicable to future activities on lands with Indigenous interests.
Q8: In your opinion are there any additional outcomes that should be included in the Alternative Settlement Framework?
In addition to recognition and the cultural heritage outcomes, the Consultation Paper identifies opportunities for additional outcomes. They include:
- land transfer;
- joint management of conservation estates;
- access to land for engagement in traditional activities; and
- economic development opportunities.
While these options provide potential for positive outcomes, there is scope to extend the outcomes so that they further recognise Indigenous rights to land, and provide for sustainable land development in future. The proposal to offer joint management of conservation estates falls short of earlier policy proposals20 which contemplate Indigenous ownership of lands where native title has been extinguished as a result of the Miriuwung Gajerrong decision. The limitation of the proposed option in the Alternative Settlement Framework is of particular concern for groups who may pass the connection test threshold, but whose rights are completely extinguished over conservation and nature reserves as a result of Miriuwung Gajerrong.
The proposal to offer joint management arrangements of national parks, contrasts with the Northern Territory Government’s arrangements which include Indigenous ownership, leaseback and joint management of a number of important parks in the Northern Territory. The outcome in the Northern Territory demonstrates what can be achieved through negotiated agreements and raises the standard for the recognition of Indigenous rights in national parks. Such an approach is consistent with eco-tourism and sustainable development. I encourage the WA Government to consider extending this option to replicate the arrangements that are available in the Northern Territory.
The Consultation Paper’s option regarding Indigenous peoples’ access to land for traditional activities offers only limited terms. The proposed access rights are limited to national parks and conservation reserves. In a number of States and in the Northern Territory, Indigenous people have access rights to pastoral leases. I recommend that the WA Government consider establishing access rights across a broader range of tenures for Aboriginal people with both historic and traditional connection.
Please provide any further comments you may have.
I would also like to highlight the principles for agreement making set out in my Native Title Report 2004. These principles are relevant to the Alternative Settlement Framework because they are aimed at redirecting the agreement making process to the aspirations of native title claimants as well as increasing their participation in the agreement making process. While the principles focus on the economic and social development goals of native title claimants, they also apply more broadly to the overall aspirations of the group. The principles state that agreements should:
- respond to the group’s goals for economic and social development;
- provide for the develop of the group’s capacity to set, implement and achieve their development goals;
- utilise to the fullest extent possible the existing assets and capacities of the group;
- build relationships between the various stakeholders; and
- integrate activities at various levels to achieve the development goals of the groups.
Native title agreement-making processes provide an opportunity for all stakeholders to build strong and stable relationships. Agreement-making processes also provide Indigenous peoples with an opportunity to obtain economic and social development outcomes. While the proposed Alternative Settlement Framework provides some benefits in terms agreement-making, I support a settlement framework that offers terms consistent with international human rights standards as outlined in my response to Q3.
In order to maximise benefits and outcomes from agreement making processes over lands with Indigenous interests, the WA Government should consider an Alternative Settlement Framework that broadens Indigenous rights to land. The recommendations throughout this submission are directed to that end.
I hope this submission assists you in the further development of the Alternative Settlement Framework for Native Title in Western Australia.
 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 (Yorta Yorta)
 Western Australia v Ward (2002) 191 ALR 1. (Miriuwung Gajerrong)
 Government of Western Australia and ATSIC, Statement of Commitment to a New and Just Relationship, 2002
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002, op. cit. p7.
 Non-exclusive agricultural and pastoral leases.
 Native Title Act 1993 (Cth), Part 2, Division 2B..
 Except in limited case of s.47B NTA
 Fejo v Northern Territory (1998) 195 CLR 96
 Bennion, Statutory Interpretation, 3rd ed, section 278; Clissold v Perry (1904) 1 CLR 363 at 373; Greville v Williams (1906) 4 CLR 64; Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 at 181, 182.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002, 2003, Human Rights and Equal Opportunity Commission, Sydney, p 11
 Human Rights Committee, General Comment 23 – the rights of minorities, (1994) para 9; in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, United Nations document number HRI.GEN/1/Rev.5, 26 April 2001, p147
 Office of Native Title, Towards an Alternative Settlement Framework for Native Title, 2005, Western Australian Government, p3
 Office of Native Title, p 4
 Government of Western Australia, Indigenous Ownership and Joint Management of Conservation Lands in Western Australia, Consultation Paper, July 2003 p13
Last updated 21 August, 2006.