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Native Title Report 2009: Chapter 1

Native Title Report 2009

Chapter 1: The state of land rights and native title
policy in Australia in 2009

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1.1 Introduction

The reporting period for this Report is 1 July 2008 to 30 June 2009.
Throughout this period, there was significantly more activity in native title
law and policy than I witnessed in the first five years of my term as the
Aboriginal and Torres Strait Islander Social Justice Commissioner.

Throughout the reporting period, the Government pursued its commitment to
improving the operation of the native title system. While no momentous
improvements were made, many of the changes over the year will impact on the
human rights of Aboriginal and Torres Strait Islander peoples.

In this Chapter, I examine changes and other decisions affecting native title
which were made throughout the reporting period. I also summarise my view on how
these developments impact on the human rights of Aboriginal and Torres Strait
Islander people.

I begin this Chapter with a reflection on the previous Government’s
approach to land rights and native title, including its 1998 amendments to the Native Title Act 1993 (Cth) (Native Title Act); the 2006
amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) and the 2007 compulsory acquisition of lands for the purposes
of the Northern Territory Emergency Response. These significant policies have
lingering effects on the operation of native title and land rights regimes
today, and provide the starting point for discussion on what changes are now
necessary.

Next, I consider the Rudd Government’s response, including its new
promises and whether a fresh approach to native title was seen in 2008-09. I
look at the native title system in numbers, including the native title
determinations which were made over the reporting period and the
Government’s budget allocation for native title. I then consider the
legislative and policy changes including the:

  • Native Title Amendment Bill 2009 (Cth)
  • Evidence Amendment Act 2008 (Cth)
  • Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008
    (Cth)
  • Australian Government’s discussion paper on optimising benefits from
    native title
    agreements.[1]

I have also
identified policy areas in which the Government initiated action but where
momentum now appears to be waning. These include financial assistance to the
states and territories for compensation, the Joint Working Group on Indigenous
Land Settlements, the Indigenous Economic Development Strategy, and regulation
and funding of Prescribed Bodies Corporate (PBCs).

I then examine three significant decisions on native title and land rights. I
summarise Wurridjal v Commonwealth (Wurridjal)[2] in which the
High Court examined the constitutional validity of compulsory acquisition under
the Northern Territory intervention. In FMG Pilbara Pty Ltd v Cox (FMG
Pilbara
),[3] the Federal Court
gave greater guidance on what it means to negotiate in good faith under the
Native Title Act. The National Native Title Tribunal (NNTT) gave its first
decision that a mining lease must not be granted in Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
(Holocene).[4]

This Chapter also considers a number of international developments, directly
relevant to Australia. In this reporting period, the Government signalled its
support for the United Nations Declaration on the Rights of Indigenous
Peoples
(Declaration on the Rights of Indigenous
Peoples);[5] two United Nations treaty
monitoring committees delivered concluding observations on Australia; a
complaint against Australia was made to the United Nations Committee on the
Elimination of Racial Discrimination; and once again, a delegation of Aboriginal
and Torres Strait Islander people attended the annual session of the United
Nations Permanent Forum on Indigenous Issues.

Finally, no examination of native title would be complete without a
consideration of the policies of the states and territories. Therefore, I
briefly look at significant developments at the state and territory level,
particularly the development of an alternative settlement framework in Victoria.

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1.2 Policy approaches to land rights and native title
– the legacy of the Howard Government

John Howard served as the Australian Prime Minister for four consecutive
terms over eleven years. It is misguided to consider current policies on
Indigenous land rights and native title without reflecting on the lingering
effects of the Howard Government’s policies and the response of the
current Australian Government.

The Howard Government’s overarching policy on Indigenous affairs was to
integrate Indigenous Australians into ‘mainstream society’, and
ignore Indigenous peoples’ distinct political, social and cultural
identity and our status as the traditional owners of the country.

This policy extended to all areas. The Howard Government was unwilling to
support the Declaration on the Rights of Indigenous Peoples and considered that
endorsing the Declaration ‘would lead to division in our
country’.[6] In 2005, it
dismantled the Aboriginal and Torres Strait Islander Commission (ATSIC),
mainstreaming the delivery of services to Aboriginal and Torres Strait Islander
people across all federal departments.

And yet, as my friend Peter Yu has said:

We are not white people in the making, nor are we simply another ethnic
minority group. We are, at a fundamental level part of the modern Australian
nation. But, within this nation, we have a very particular position. We are
Australia’s Indigenous people, the first people of this land, and we
continue to have – as we have always had – our own system of law,
culture, land tenure, authority and leadership. It follows then, that treating
us the same as everybody else will not deliver equality, but is in fact
discriminatory.[7]

The Howard Government’s approach to Indigenous peoples was easily
identifiable in its policies on land rights and native title. Over its 11-year
term, it made changes to native title and land rights policies to
‘normalise’ Indigenous peoples’ interests in the land, and in
doing so, reduced the recognition of Indigenous peoples’ human rights.

Significant changes made to native title and land rights during the Howard
Government’s term included the:

  • 1998 amendments to the Native Title Act
  • 2006 amendments to the ALRA
  • 2007 compulsory acquisition of lands for the purposes of the Northern
    Territory Emergency Response (the Northern Territory
    intervention).

The Howard Government accompanied these changes with
words that misled the broader public on the law. For example, in 2006, after the
Federal Court’s first instance decision in the Noongar case (which
determined that some native title rights existed over Perth), the Howard
Government was reported as saying that Australia’s beloved beaches were no
longer ‘protected’ from native
title.[8] Philip Ruddock, then the
Attorney-General, stated:

It is not possible to guarantee that continued public access to all such
areas in major capital cities in Australia would be protected from a claim to
exclusive native title.[9]

This is clearly not an accurate reflection of the
law.[10]

Despite all this, the Howard Government told the United Nations that
‘[s]uccessive Australian Governments have implemented a range of
initiatives in support or recognition of Aboriginal and Torres Strait
Islander land rights’.[11]

It is necessary to reflect on the impact of past policies of the past decade
when considering the status of the native title system today and how it could be
improved tomorrow.

(a) The 1998 Wik Amendments

The most significant changes made to native title during the Howard
Government’s term was the Native Title Amendment Act 1998 (Cth) (the Wik amendments), a legislative response to the High Court’s
decision in Wik Peoples v Queensland (Wik).[12] In Wik,
the High Court held that native title could survive on a pastoral lease if there
was no clear intention to extinguish it when the lease was granted.

In the Native Title Report 1998, the Social Justice Commissioner said
that the High Court of Australia had laid the foundation in Wik for the
coexistence and reconciliation of shared interests in the land and that
‘[i]n many ways the decision presented Australia with a microcosm of the
wider process of
reconciliation’.[13]
But
the opportunity for reconciliation provided by Wik was lost. The
reactions sparked by the decision were intense and deeply divisive, and the
consequent amendments to the Native Title Act were a devastating blow to
Indigenous peoples’ rights.

Although there was discussion on amending the Native Title Act prior to the Wik decision, the earlier discussions focused on improving the
‘workability’ of the Act. However, after the Wik decision,
the focus changed.
Legislative amendments became a vehicle for
‘bucketloads’ of
extinguishment.[14] ‘Certainty’ for non-Indigenous land holders became the new catchcry
for legislative change.[15]

The Howard Government responded with a ten-point
plan,[16] and amendments were passed
in 1998. The Wik amendments, which added 400 pages of law, drastically increased
the complexity of the Native Title Act and changed the system markedly. The key
changes included:

  • Extinguishment of native title. The ‘validation and
    confirmation provisions’ of the amendments validated certain acts which
    took place on or after 1 January 1994 (the day the Native Title Act commenced)
    and before the 23 December 1996 (the day the High Court handed down its decision
    in Wik), and which may have not been valid at the time because the
    government had not complied with the Native Title Act. The amendments made these
    acts - which are called intermediate period acts - valid, and said that
    they were always valid. The amendments also deemed certain tenures granted
    before the Wik decision to have either extinguished or impaired native
    title. Where the interests were granted by the state governments, the amendments
    authorised the states to introduce complementary legislation to the same effect.
    Schedule 1 of the amended Native Title Act lists interests which are deemed to
    permanently extinguish native title. This list is 50 pages
    long.[17]
  • Changed the right to negotiate provisions. The right to negotiate was
    included in the original Native Title Act in recognition of the ‘special
    attachment of Aboriginal and Torres Strait Islander people to their
    land’.[18] The 1998 amendments
    authorised states and territories to introduce legislation that diminished the
    right to negotiate by introducing schemes which provide for exceptions to the
    right. The amendments also changed the right to negotiate in the Native Title
    Act itself, generally replacing it with the lesser rights to comment or be
    notified.
  • Changed the registration test. The amendments established a higher
    threshold for the registration test and required that the Registrar be satisfied
    that certain procedures had been undertaken by the claimants, and that they had
    fulfilled certain merits.
  • Provided for Indigenous Land Use Agreements (ILUAs). The ILUA
    provisions were a positive feature of the amendments, offering the foundation
    for parties to negotiate voluntary and binding agreements about the use of the
    land, the intersection of various rights and interests, and how the relationship
    would proceed in the future.
  • Changed the functions of Native Title Representative Bodies (NTRBs). The amendments redrew the boundaries of representative body areas (reducing
    the number of NTRBs), reassessed the existing bodies’ eligibility,
    increased the Minister’s control over the bodies, removed the requirement
    that representative bodies be representative and increased their
    responsibilities and functions. Despite increasing the load on NTRBs, the
    changes were not accompanied by an increase in funding.

Many of
these amendments were justified on the basis of pursuing formal
equality.[19] Yet it is now widely
accepted that the amendments seriously undermined the protection and recognition
of the native title rights of Aboriginal and Torres Strait Islander people.

Nonetheless, the Howard Government considered that the Wik decision
had simply accentuated the shortcomings of the original Native Title Act and
that:

The 1998 amendments addressed these difficulties, and followed an open and
participatory consultation process with all interested parties. The amended Act
clarifies the relationship between native title and other rights and gives the
States and Territories the capacity to better integrate native title into their
existing regimes. The amendments also established a framework for consensual and
binding agreements about future activity known as Indigenous Land Use Agreements
or ILUAs.[20]

That outlook was not shared by all. In 1998, Indigenous representatives
rejected both the substance of the amendments and the process by which it
was arrived at. The National Indigenous Working Group prepared a statement,
which was read into the parliamentary record on the day before the amendments
were debated:

We, the members of the National Indigenous Working Group, reject entirely the
Native Title Amendment Bill as currently presented before the Australian
Parliament.

We confirm that we have not been consulted in relation to the contents of the
Bill...and that we have not given consent to the Bill in any form which might be
construed as sanction to its passage into Australian law.

We have endeavoured to contribute during the past two years to the public
deliberations of Native Title entitlements in Australian law.

Our participation has not been given the legitimacy by the Australian
Government that we expected...

We are of the opinion that the Bill will amend the Native Title Act 1993 to
the effect that the Native Title Act can no longer be regarded as a fair law or
a law which is of benefit to the Aboriginal and Torres Strait Islander
Peoples...

The National Indigenous Working Group is extremely disappointed that the
Australian Government has failed to confront issues of discrimination in the
Native Title laws and implicitly provoked the Aboriginal and Torres Strait
Islander Peoples to pursue concerns through costly and time consuming
litigation, rather than through negotiation...

The National Indigenous Working Group on Native Title absolutely opposes the
Native Title Amendment Bill, calls upon all parliamentarians to cast their vote
against this legislation, and invites the Australian Government to open up
immediate negotiations with the Aboriginal and Torres Strait Islander Peoples
for coexistence between the Indigenous Peoples and all
Australians.[21]

Although the 1998 amendments severely damaged the relationship between
Indigenous peoples and the Government, the strength and resilience of Aboriginal
and Torres Strait Islander people has meant that we have endeavoured to make the
most out of the weakened system.

This Government has not made any commitment to reviewing the impact of the
1998 amendments nor identifying where they may be wound back. Although the
original Act was also not perfect, the impact of the 1998 amendments and the
operation of the original Native Title Act should be used to inform current
debate over what amendments are necessary to ensure the native title system
operates in a just, equitable and effective
way.[22]

(b) The 2006 ALRA amendments

The Australian Government is only directly responsible for land rights policy
in the territories. During its term, the Howard Government’s policy toward
land rights resulted in considerable changes to the Northern Territory’s
land rights regime. This shift in policy has become relevant across the country
as it is now being applied to state land rights regimes via partnerships and
funding arrangements between the federal and state governments. I discuss this
further in Chapter 4 of this Report.

The Howard Government amended the ALRA in
2006.[23] The amendments covered a
number of measures, one of which sought to ‘promote individual property
rights’ on Aboriginal land by enabling a Northern Territory entity (such
as the Northern Territory Government or a statutory authority established by it)
to be granted a 99-year lease from the traditional owners over an entire
township. Long-term subleases could then be granted to Aboriginal people and
others without each sublease having to be negotiated with the relevant Land
Council.[24]

Again, the intention was to ‘normalise’ Indigenous communities
through the mainstreaming of service delivery and the creation of market
economies. Mal Brough, the Howard Government Minister for Indigenous Affairs,
said ‘[w]e are talking about creating an environment for the sort of
employment and business opportunities that exist in other Australian
towns’.[25]

At the time, I raised a number of concerns with the policy, including that it
could lead to significant loss of control of land by Indigenous peoples; create
complex succession problems; create smaller and smaller blocks as the land is
divided amongst each successive generation; and cause tension between communal
cultural values with the rights granted under individual titles. I was also
concerned about the ability of traditional owners to confront these issues and
give their free, prior and informed consent to long-term and large area leases
while their capacity is
inhibited.[26]

Another significant concern I voiced is that the amendments allow the
government to use the Aboriginals Benefit Account (ABA) to pay for the 99-year
head leases. The fund, which was set up to provide benefits to Indigenous people
in the Northern Territory above and beyond basic government services, can now be
used by the government to acquire, administer leases or pay the rent. For
example, rents payable to traditional owners who agree to lease their land under
the ALRA will come, at Ministerial direction, not from the lessee (eg the
Northern Territory Government) but from the ABA.

In August 2007, the Howard Government told the United Nations that:

Under the proposed reforms, traditional owners will be able to grant a 99
year head-lease over a township area. Granting a head lease will be
entirely voluntary. Traditional owners and the Land Council will negotiate the
other terms and conditions of the head-lease, including any conditions on
sub-leasing. Sub-leases may be issued to individual tenants, home purchasers,
and business and government service providers. The underlying inalienable title
will not be affected.[27]

I do not believe this to be the case.

On 12 June 2007, the then Shadow Minister for Families, Community Services,
Indigenous Affairs and Reconciliation, Jenny Macklin, spoke against the
amendments.[28] However, as the
current Minister for Indigenous Affairs, Jenny Macklin now supports the leasing
scheme and is working with the states to have it applied across the nation.

Some traditional owners have expressed their dismay at this:

When John Howard and Mal Brough lost their seats, we were happy. But now you
are doing the same thing to us, piggybacking Howard and Brough’s policies,
and we feel upset, betrayed and disappointed. ...

This is our land. We want the Government to give it back to us. We want the
Government to stop blackmailing us. We want houses, but we will not sign any
leases over our land, because we want to keep control of our country, our
houses, and our property.[29]

In a statement given by a Warlpiri delegation from Yuendumu when Parliament
was opened in 2009, it is clear that there are very strong feelings that leases
are not necessarily being entered into on voluntary and informed grounds.

Land for Housing... We are just being blackmailed. If we don’t hand
over our land we can’t get houses maintained, or any new houses built. ...

We got some land back under the NT Land Rights Act. Now they want to take the
land our houses are on, so they can control us. They are talking about 60 or 80
year leases, but we know that we won’t ever get it back.

We have cultural ties to our land. Our land is not for sale. Without the land
we are nothing. Our spirit is in the land where we belong. If we give up our
land we are betraying our ancestors. Every bit of our land is precious. ...

Every time Government officials come to Yuendumu to ‘consult’
with us, they don’t listen to us. They just tell us what their plans are.
When any of us speak up about our concerns, it’s as if they have deaf
ears. They just go on with their plans as if we had said nothing. There is no
communication. They treat us like kids.

We are proud Warlpiri people. It is a great insult to be treated like
this.[30]

I am still concerned with various aspects of this policy, including how
Indigenous people are being involved in the decision making process and what the
long-term impacts on cultural, economic, political and social rights will be. I
discuss these concerns in more detail in Chapter 4 of this Report.

(c) The 2007 compulsory acquisition of land for the
purposes of the Northern Territory Emergency Response legislation

On 21 June 2007 the Howard Government announced the Northern Territory
Emergency Response,[31] also known
as the intervention. The intervention was originally a response to a report on
child sexual abuse called Little Children are
Sacred
.[32] The current
Government states that the intervention ‘has a wide range of measures
designed to protect children and make communities safe’ and to
‘create a better future for Aboriginal people in the Northern
Territory’.[33]

The various measures which make up the intervention have significant
implications for Aboriginal owned and controlled land.

The Government considered it necessary to control the land for aspects of the
intervention to be done quickly.[34] Consequently, the Government compulsorily acquired five-year leases over
Aboriginal owned land in the Northern Territory. It took over the control of
town camps; allowed for the suspension of the permit system which ensures
traditional owners can control who enters their land; and suspended the future
acts regime in the Native Title Act. The Government introduced these measures
with the intent that they would assist in building new houses, upgrading
existing houses and bringing in new arrangements for the management of public
housing in communities.[35]

In the Native Title Report 2007, I raised my concerns with these
aspects of the intervention. Particularly:

  • the use of compulsory acquisition and the lack of consultation or discussion
    with the Aboriginal land owners
  • the possibility of a significant interruption to community living
  • the breadth of the Minister’s discretion over what happens on the
    lands subject to compulsory acquisition and the lack of accountability of those
    decisions to Parliament
  • the apparent displacement of traditional rights of use and occupation (under
    Section 71 of the ALRA) in compulsorily leased Aboriginal
    lands[36]
  • the ability of the Australian Government to remove the rights of an
    Indigenous person to even reside on compulsorily leased Aboriginal lands
  • the uncertain relationship between the leases and other laws such as the
    Native Title Act.[37]

At
the date of writing this Report, two years after the intervention was imposed in
the Northern Territory, not a single house had been
built.[38] No rent or compensation
has been paid to the land
owners.[39]

All the leases which were compulsorily acquired under the intervention will
expire on 18 August 2012. However, I am concerned that the Government will then
seek long-term leases from the traditional owners, which triggers the
significant concerns I have already raised with the long-term leasing
policy.[40]

^top

1.3 The Rudd Government’s response – new
promises, a fresh approach in 2008-09?

In order to gain a full appreciation of the native title system and land
rights today, the remnants of the Howard Government’s policy approaches
must be contemplated. Many aspects of these policies have continued under this
Government. The concerns that I and previous Social Justice Commissioners have
raised over that time remain disregarded.

Nonetheless, since the Government delivered the National Apology to the
Stolen Generations,[41] it has
introduced a number of reforms that will contribute to creating a new
partnership between Indigenous and non-Indigenous Australians. This includes
reviewing aspects of native title. As the Prime Minister has acknowledged,
‘[t]o speak fine words and then forget them, would be worse than doing
nothing at all’.[42]

Eighteen months after becoming the Attorney-General, Robert McClelland stated
native title reform is among his top
priorities.[43] In December 2008, he
admitted that he was ‘hoping to have made more progress in the first
year’ to streamline native title
processes.[44] In furtherance of the
commitment to a more flexible and speedier native title system, he has stated
that ‘Governments – including the Commonwealth – need to take
a less technical and more collaborative and innovative approach to issues like
connection’.[45]

To kick-start this process, the Attorney-General released two discussion
papers throughout the year.[46] The
Native Title Amendment Bill 2009 was introduced into Parliament, and inquired
into by a Senate Committee.[47]

It is also apparent that further reform of the system is being contemplated.

For the first time in my five years as Aboriginal and Torres Strait Islander
Social Justice Commissioner, the Attorney-General has stated that his
‘mind is open’ to some more significant changes to the Native Title
Act, such as shifting the burden of proof and providing for a presumption in
favour of native title.[48] He has
said that he is interested in ‘any constructive suggestions, especially
those aimed at further encouraging agreement
making’.[49]

In June 2009, he stated:

I believe there is real merit in exploring ways to build on reforms
implemented to date to further simplify the native title system, to make
resolving claims more efficient and timely, and to reinforce the principle that
negotiation rather than litigation should be the primary mechanism for resolving
native title claims. While legislative change is not a panacea, I am willing to
explore ideas proposed... However, the Government will not rush into such
changes without first consulting stakeholders... I am determined to ensure that
the way we consult, and the relationships we forge along the way, distinguish
this Government’s approach to native
title.[50]

(a) The native title system in numbers

(i) Determinations between 1 July 2008 – 30
June 2009

Despite developments at a federal and state level, the native title system
continued to operate at its usual pace: slowly. The NNTT confirmed that the
timeframe within which matters are being finalised is not
reducing,[51] and it expects that
only 50 out of 473 native title matters will be determined within the next two
years.[52]

During the 2008-09 reporting period, 12 determinations of native title were
made by the Federal Court, bringing the total number of determinations since the
Native Title Act began to 121. The determinations made in 2008-09 are detailed
at Appendix 1.

This year’s determinations included the largest native title
determination in South Australia, granting native title rights and interests
over 41 000km2 of land in the Flinders and Gammon Ranges. The
Adnyamathanha Aboriginal people lodged their claim in 1994. In 2009, they
reached a consent determination with the state which recognises their rights to
hunt, use natural resources, camp and conduct traditional ceremonies recognised
over the majority of the area.[53]

The Nyangumarta People from Western Australia’s Pilbara region also had
their native title rights and interests recognised over more than 33 843
km2 through two consent determinations. The claim was lodged in 1998.
The mediation of this claim was considered by the NNTT to be
‘conflict-free’, during which ‘[n]o single issue turned into a
tug-of-war’. Nonetheless, ‘the mediation still took two-and-half
years to conclude after parties reached an in-principle agreement on the
existence of the Nyangumarta native title rights and
interests’.[54]

The NNTT member noted:

This relatively straightforward claim over unallocated crown land and
pastoral leases has taken 11 years to reach an outcome, with some of the claim
group no longer alive to see a result. The clear message is that more effort is
needed to speed up the native title claims
process.[55]

Another significant determination which was made was the Lardil, Yangkaal,
Gangalidda and Kaiadilt Peoples who reached a consent determination, recognising
their native title rights over 23 islands in Queensland’s Gulf of
Carpentaria. The determination, which was made over the land, followed on from
the 2004 determination that recognised the peoples’ native title rights to
the sea.[56]

(ii) Resourcing the native title system

In previous native title reports I have raised serious concerns about the
sufficiency and distribution of resources to bodies operating in the native
title system. I have been particularly concerned about the impact that poor
resourcing has had on the ability of NTRBs to adequately represent the interests
of the Indigenous groups who are claiming native title. The Government has also
acknowledged that NTRBs are significantly under-resourced.

On 12 May 2009, the Australian Government released its 2009-10 Budget. It
committed an additional $50.1 million over four years to the native title
system. This will be broken down to $45.8 million for NTRBs, and $4.3 million
for the Government to look at ways to improve the system. This additional
funding is welcome, and should go some way to lessen the pressure on NTRBs.

I was pleased to see $4.3 million set aside for examining ways to improve and
streamline the operation of the system. As part of this, the Government has said
it will look at:[57]

  • more flexible connection evidence
  • streamlining participation of non-government respondents
  • improving access to land tenure information
  • promoting broader and more flexible native title settlement packages
  • initiatives to increase the quality and quantity of anthropologists and
    other experts working in the system
  • partnerships with state and territory governments to develop new approaches
    to the settlement of claims through negotiated agreements.

Recognising that there are many lessons to be learnt from the first
16 years of native title, it is positive that the Government has allocated a
pool of money to look at ways to address these serious shortcomings.

However, I have concerns with the adequacy of the allocation for NTRBs and
PBCs.

Although the funding increase was given in response to a 2008 Native Title
Coordination Committee’s review of funding of the native title system, the
results of that review have not been made public. The Government has stated that
the review ‘found that NTRBs were substantially under-resourced for the
task they were expected to perform in the
system’,[58] but the extent of
that dearth in resourcing is not known. The Attorney-General has informed me
that:

As the Native Title Coordination Committee’s
2008 review of funding of the native title system is confidential to Government,
it is not possible to publicly release the recommendations. However, I can
assure you that the Government did consider the recommendations in the context
of the 2009-10 Budget process. The recommendations informed the decision to
continue non-ongoing funding otherwise due to lapse in 2008-09, and to provide
an additional $50.1 million over four years to improve the operation of the
native title system.[59]

Having made submissions into the under-resourcing of NTRBs in the past, and
knowing the results of previous reviews of NTRB resourcing, I would speculate
that the 2008 review would have recommended a much greater funding increase than
was provided in the 2009-10 Budget. I do not agree with the Attorney-General
that this funding is sufficient to ensure that NTRBs are adequately resourced to
participate in negotiations on behalf of Indigenous
people.[60] This is particularly so
given that the additional $50.1 million which has been allocated for a four year
period, to be divided between all NTRBs across the
country,[61] includes money for
PBCs, and comes after a reduction of NTRB funding in the previous year’s
2008-09 Budget.

In fact, the provisional funding allocation for NTRBs for 2009-10 was over $5
million less than the funding provided to NTRBs for the 2008-09 financial
year.[62]

In addition, despite my recommendation and calls for secured funding from
across the country, the Budget did not provide a specific allocation for PBCs.
Once again, PBC funding will come from the allocation for NTRBs, or from
specific project funding from other agencies. I have been informed that in
2009-10, $1 million of the money allocated for NTRBs has been tentatively put
aside for ‘crisis funding support for PBCs ... in recognition of the
critical unmet needs that can arise in this
area’.[63]

There are some sources of PBC project funding from other agencies. One such
source is the Working on Country program run by the Department of Environment,
Water, Heritage and the Arts. The 2009-10 Budget allocated $69 million to the
Working on Country program to create 210 new Indigenous ranger jobs in remote
and regional Australia over the next five
years.[64]

There are various economic, cultural, social and environmental benefits that
flow from enabling Aboriginal people and Torres Strait Islanders to manage and
care for their country. The new commitment of funds is welcomed.

Unfortunately project funds such as these rarely cover the operational costs
of running a PBC or are inaccessible by PBCs due to an initial lack of funding
and capacity. And so, despite running very successful programs, PBCs can
struggle to find resources for telephones, offices and internet connections,
seriously inhibiting their success. I comment further on the precarious
positions of PBCs across the country later in this Chapter.

(b) Changes to native title over the year –the
direction of the Australian Government

The Australian Government’s main message on
native title this year is that it is dedicated to creating a native title system
which encourages the parties to negotiate rather than litigate their claims.
This policy would primarily be pursued through encouraging all parties to have a
flexible and open minded attitude to settling native title claims.

I am supportive of this approach, and I am hopeful that it will lead to
improved outcomes for Indigenous claimants. However, there are some serious
barriers to change.[65]

Firstly, there are considerable constraints in the Native Title Act that will
prevent parties making progress in improving native title outcomes. In Chapter 3
of this Report I consider some of these restrictions and possible amendments.
Many of the restrictions originate from the initial scope of the Act. However
the 1998 amendments made the situation significantly worse.

Secondly, ‘attitudes’ to policy are discretionary and depend on
the elected government of each jurisdiction, creating uncertainty,
unpredictability and inequity in native title outcomes across Australia. If a
government changes, there is no guarantee that the flexible approach will be
maintained. The different outcomes that result after a change in government or a
change in a government’s approach have been seen many times.

Finally, I am concerned about the breadth of change that can be achieved when
nearly all of the state and territory governments have indicated to me that they
consider that they have already been acting in a flexible manner for
years.[66]Subsequently, they all
naturally support the Australian Government’s approach, but it begs the
question, how much more flexible will these governments feel they can be within
the existing framework?

The NNTT considers that while the Australian Government’s call for
behavioural change is positive, it warns that even when parties support mediated
rather than litigated outcomes, the support ‘has not always resulted in
outcomes at a broadly acceptable
rate’.[67] Nor has it always
resulted in good outcomes.

These limitations are evident in the Torres Strait Regional Sea Claim, Part A
of which was heard by the Federal Court throughout the
year.[68] In that claim, the federal
Attorney-General’s stated preference for flexible and less technical
approaches to native title was not reflected in the Australian Government
Solicitor’s approach to the claim, nor did the Queensland Government
Solicitor act in a way that reflects the Queensland Government’s support
for the federal Attorney-General’s flexible approach to native title.

In the view of the Torres Strait Regional Authority (TSRA), the Queensland
and Commonwealth Governments’ attitudes in the claim were inconsistent
with their policies and their commitments to act as model litigants.

...the Government lawyers continue to oppose the claim putting the Applicant
to proof of its case. In the case of the Sea Claim the government parties’
position is captured by, among other things:

  • A failure to make any significant concessions;
  • Technical arguments regarding the nature and content of the native title
    rights and interests;
  • Challenging the exercise, existence and extent of native title rights and
    interests in the whole of the claim area; and
  • Pressing technical legal arguments that relate to questions of society and
    authorisation of the claim.

The position taken by the Queensland
and Commonwealth Governments’ are disappointingly inconsistent with a
commitment to ‘improve the operation of the native title system by
encouraging more negotiated settlements of native title claims’. The
position has caused TSRA to commit significant financial resources, time and
other resources to prosecute the
claim.[69]

This is a pertinent example of why relying on a change in attitude will not
alone be sufficient to address the difficulties of the native title system. I
recommend that the Australian Government pursue its policy through a combination
of legislative and non-legislative options which together provide unambiguous
and enforceable measures that all parties to native title must adhere to. Many
of my ideas for change are identified in Chapter 3 of this Report.

Some measures initiated or completed by the Australian Government in 2008-09
are considered below.

(i) Native Title Amendment Bill 2009 (Cth)

After consulting on a discussion paper on minor native title amendments, the
Attorney-General introduced the Native Title Amendment Bill 2009 (Cth) (the
Bill) on 19 March 2009. The Native Title Amendment Act 2009 (Cth) (the
Native Title Amendment Act) commenced on 18 September 2009.

The Amendment Act amends the Native Title Act to allow for, and encourage,
broader negotiated agreements between native title claimants and other parties.
The key changes include:

  • giving the Federal Court full control over the management of native title
    claims
  • giving the Federal Court the power to make consent orders about matters
    beyond native title. It is expected that this will assist with the negotiation
    of broader agreements
  • giving the Federal Court the power to rely on an agreed statement of facts
    between the parties
  • applying recent amendments to the Evidence Act broadly to native title
    proceedings[70]
  • changing the provisions for recognition of NTRBs; and extension, variation
    and reduction of NTRB
    areas.[71]

I made
submissions to the discussion paper and the Senate Inquiry, generally supporting
the passage of the Bill.[72] I also
recommended a number of improvements that could be made to the Bill and
identified areas where further clarification of the law could be beneficial. In
addition, I responded to the Attorney-General’s calls to provide
additional concrete recommendations for reform of the native title system, and
outlined in my submissions a number of other matters that require consideration
in future reforms.

(ii) The Evidence Amendment Act 2008 (Cth)

In December 2008, the Evidence Amendment Act 2008 (Cth) was passed.
The Act amends the Evidence Act 1995 (Cth) (the Evidence Act), allowing
for evidence of the existence or content of traditional law and custom to be
exempt from the hearsay and opinion evidence rules. The amendments also changed
the rules for narrative evidence, giving the court the power to direct a witness
to give evidence wholly or partly in narrative form, rather than the standard
question and answer format. This form of giving evidence is relevant for native
title hearings where Aboriginal and Torres Strait Islander people might be more
comfortable giving evidence through narrative or in the traditional practice of
‘storytelling’. These amendments commenced on 1 January 2009.

I summarised these changes in my Native Title Report
2008
.[73] I am pleased that
changes introduced in the Native Title Amendment Act mean that the new evidence
rules can apply to native title cases that began before 1 January 2009, if the
parties consent or the Court orders that it is in the interests of justice to do
so.[74]

However, I would like to reiterate the comments that I made in my Native
Title Report 2008
; that although the amendments to the rules of evidence may
go some way to addressing the difficulties of evidence in native title
proceedings, they will not provide a complete or adequate solution. For this
reason I continue to advocate that the Evidence Act 1995 should not apply to
native title proceedings.[75]

(iii) The Federal Justice System Amendment
(Efficiency Measures) Bill (No 1) 2008 (Cth)

The Attorney-General introduced the Federal Justice System Amendment
(Efficiency Measures) Bill (No 1) 2008 (Cth) into Parliament in December 2008.
If passed, the Bill will allow the Federal Court to refer a proceeding, or one
or more questions arising in a proceeding, to a referee for
report.[76]

The Explanatory Memorandum to the Bill states that this power could be useful
where technical expertise is required, but it is not efficient for the judge to
gain the necessary expertise in that area. Therefore, the Bill gives the Court
the power to refer a matter out to a referee, which is intended to provide the
Court with greater flexibility, and save on resources and time.

The Attorney-General considers that the Federal Court could use this power in
native title cases, contributing to the Court’s ability to manage claims
in such as way that the parties avoid protracted litigation and can negotiate
outcomes. The new referral powers contained in the Bill may go some way to
reducing the negative impacts that the adversarial setting has on native title
claimants and the outcomes reached.

(iv) Optimising Benefits from Native Title
Agreement-Making – Discussion Paper

The Attorney-General and the Minister of Families, Housing, Community
Services and Indigenous Affairs convened the Native Title Payments Working Group
in July 2008 to ‘advise on how to promote better use of native title
payments to improve economic development outcomes for Indigenous
Australians’.[77] The Working
Group on Native Title Payments reported to the Australian Government in late
2008.[78] The Attorney-General and
the Minister for Indigenous Affairs then released a Discussion Paper that built
on the working group’s report. The Discussion Paper considered legislative
and non-legislative options that would ‘make better use of payments to
Aboriginal communities under mining and infrastructure
agreements’.[79] The proposals
covered a range of topics, including transparency, taxation, minimum benefits,
and other ways to promote good practice.

I agreed with aspects of the Discussion Paper, including the need to improve
the application of the tax law to Indigenous corporations holding native title
rights, or who receive benefits by virtue of a native title
agreement.[80] However, I also
recommended that the government focus on providing the Indigenous party to the
negotiation with sufficient resources and access to the skills necessary to
negotiate on an even playing field with the resource company. I would also like
to see the underlying procedural rights on which negotiations are based, that
is, the right to negotiate, expanded and strengthened to guarantee that even
playing field.

Indigenous parties are on an unequal footing in negotiations with resource
companies and governments. I have suggested changes to shift that power to
create a more equal bargaining position for the Indigenous party. In turn, this
will create better agreements. Communities know their own priorities. Once they
have more power, they will be in a better position to pursue the outcomes they
want to see achieved.

(v) Where momentum is
waning

So far, I have considered areas where the
Australian Government has made or considered changes to native title. However,
there are areas of native title policy in which there has been a distinct lack
of action and momentum. I consider examples of few such areas
below.

Financial assistance to the states and
territories for compensation

At the Native Title Ministers’ Meeting in 2008, state and territory
Ministers agreed to negotiate in good faith on the content of an agreement
between the Australian Government and themselves for financial assistance to
deal with native title compensation.

The agreement was intended to be drafted by 30 June
2009.[81] At the date of writing, a
copy of the agreement was not publicly available, nor had there been any comment
by governments on its status.

In last year’s Native Title Report, I suggested that the
Australian Government tie this funding to the behaviour of the state and
territory governments in negotiating native title agreements, giving them
incentive to act in the flexible manner that the Australian Government is
advocating.

Joint Working Group on Indigenous Land Settlements -
an alternative land settlement scheme

Another outcome of the Native Title Ministers’ Meeting in 2008 was the
establishment of a Joint Working Group on Indigenous Land Settlements. The group
is to:

  • develop innovative policy options for progressing broader regional land
    settlements
  • seek to complement, not override existing processes in place for the
    negotiation of flexible native title settlements.

The Government is
pursuing these broader land settlements on the understanding that:

Broader settlement packages provide land and social justice outcomes beyond
answering the question of whether native title exists. Examples of benefits
under such settlements include training and employment opportunities, land
transfers and co-management of
land.[82]

Over the last year, the Joint Working Group has not produced any publicly
available material. However, it is expected that the Working Group will report
back to the next Native Title Ministers’ meeting in August 2009.

Indigenous Economic Development Strategy

Since it was elected, the Australian Government has talked about its
impending Indigenous Economic Development Strategy. The Labor Party committed to
developing an Indigenous Economic Development Strategy (IEDS) in their 2007
election campaign, highlighting economic development as a key feature of
improving the lives of Indigenous
Australians.[83] The Labor Party
referred to the need for government to work in partnership with Indigenous
people to achieve economic self-reliance for individuals and communities, and
promoted links between Indigenous people and the private sector. Part of the
IEDS would focus on housing, land and sea management and carbon trading.

When the Government was elected, the Minister for Indigenous Affairs, Jenny
Macklin, regularly promoted the IEDS as the Government’s key policy
platform for Indigenous affairs. In May 2008, Minister Macklin stated that the
IEDS would be developed within six
months.[84]

Again, in May 2009, Minister Macklin announced that the Government would soon
release a public discussion paper outlining an approach to Indigenous economic
development with an aim to incorporate that feedback into the IEDS, which would
be launched later this year.[85] At
the date of writing this Report, the Government had not released a discussion
paper or a draft IEDS.

Prescribed Bodies Corporate – funding

All levels of government have
failed to confront the problems concerning the viability of PBCs.

There are now over 60 registered PBCs in
Australia.[86] The areas covered by
PBCs are set out in Map 1.1. Under the Native Title Act, PBCs are established to
hold native title once a determination has been made. However, they perform a
wide range of ever-expanding functions. Given that the native title rights and
interests held by PBCs are not able to be used for commercial gain, PBCs often
struggle to fund their basic administrative and organisational costs. This
undermines their capacity to comply with complex regulatory and project
reporting requirements. This, in turn, threatens their ability to protect the
native title rights they were established to
maintain.[87]

Map 1.1: Determinations and Native Title Prescribed Bodies
Corporate

Map 1.1: Determinations and Native Title Prescribed Bodies Corporate

The chair of a PBC in Western Australia describes the difficult position that
PBCs are placed in:

The PBC is the foundation to look after our land, our culture, socially and
economically...In the last couple of years our committee has been struggling a
little. Our [Annual General Meeting] has been failing a bit. I have got to look
at every little avenue to manage our country. How can we manage our country
without government funding? We set up lots of Karajarri projects with project
funding... The government says ‘we will give you money for the project,
but we won’t give you money for the PBC’. ... The downfall of our
PBC is trying to administrate and manage our country. We have no fax, no phone,
and no place where people can
come.[88] 

Yet, as I mentioned earlier in this Chapter, no federal funding has been
allocated specifically for PBCs. The 2007 changes to the native title system did
provide that NTRBs could use some of their limited funding to assist PBCs with
their day-to-day operations. Through this mechanism, approximately $1 million of
NTRB funding has been set aside for PBCs across the country in
2009-10.[89] The 2007 changes also
allowed for the Department of Families, Housing, Community Services and
Indigenous Affairs (FaHCSIA) to consider direct funding requests from PBCs. To
date, FaHCSIA has not directly funded a single
PBC.[90]  

The 2007 amendments to the Native Title Act also provided for another
potential funding source for PBCs. PBCs are now able to charge fees for the
costs that they incur in respect of a number of matters that are specifically
listed in subsection 60AB(1) of the Native Title Act. These include costs
incurred when negotiating agreements under s 31(1)(b) of the Native Title Act
and negotiating Indigenous Land Use
Agreements.[91]

Regulations can be made to allow PBCs to charge a fee for costs they incur
when performing other functions.[92] However, two years after these amendments were finalised, these regulations are
yet to be drafted.

Overall, the Australian Government has acted contrary to the Australian Labor
Party’s National Platform and Constitution 2007, which commits to ensuring
adequate resourcing for the core responsibilities of
PBCs.[93]

In the meantime, pressure is building on PBCs to perform a myriad of tasks on
behalf of every level of government. This takes advantage of the traditional
owners’ sense of responsibility to their country.

For example, amendments were made in 2008 to the Aboriginal Land Act
1991
(Qld) and the Torres Strait Islander Land Act 1991 (Qld).
Previously, lands granted by the Queensland Government to Indigenous communities
were administered by a trustee for the benefit of Aboriginal people or Torres
Strait Islanders particularly concerned with the land.

The 2008 amendments made a number of significant changes to the Queensland
land rights Acts, including allowing Registered PBCs to hold the land for the
native title holders of that land. The Acts now allow the Minister to appoint a
PBC as the grantee of the land if there is a determination over all or part of
the land, and the PBC approves. These amendments were intended to assist the
Queensland Government to include Indigenous land as part of native title
negotiations and to help align the Queensland Acts with the Native Title
Act.[94]

Despite this significant additional responsibility, the Queensland Government
has not committed to providing additional resources to enable PBCs to undertake
this responsibility. The Government has only committed to providing guidance to
new grantees as to how to enter into leases. I have been told that the
Queensland Government considers that PBCs are the funding responsibility of the
Australian Government, as a federal law (the Native Title Act) requires PBCs to
be established. I do not agree with this approach. PBCs are established to hold
and protect native title rights and interests under the Native Title Act.
However, that does not mean that they should be asked to shoulder additional
responsibilities, programs and costs by other governments, without appropriate
resources to undertake those additional responsibilities.

As I have stated, many PBC members would be loathe to not accept the
responsibilities to deal and manage their land. This is exactly what they have
worked toward in pursuing their native title claim. Yet they must be funded to
undertake this role. Otherwise, they are being set up to fail yet again. 

Given these pressures, PBC members are banding together and demanding
practical recognition of their status as the traditional owners of an area.

One aspect of this is that they would like to form a national peak body in
order to form a direct line of communication with governments about land and sea
matters and the management of their native title rights and interests.  At
a meeting of over 50 PBC representatives, PBCs called for a peak body which
would be the voice for PBCs, coordinate information, mentor new PBCs, lobby and
influence policy and sit with other national
bodies.[95]

I support this call. I recommend that such a body should be supported by
existing bodies and projects that play a similar role. This could include the
Aurora Project, the PBC project at the Australian Institute of Aboriginal and
Torres Strait Islander Studies (AIATSIS), the Office of the Registrar of
Indigenous Corporations (ORIC) and the National Native Title Council (NNTC).

I also consider that further attention needs to be paid to the development of
sources of funding support for PBCs. Funding models already exist whereby a
percentage of income derived from state land tax or mining activity has funded
the statutory land rights regime. Some land rights regimes across the country
are now self-funding due to state government investment. The examples featured
in Text Box 1.1 should be further reviewed to determine what aspects may be
appropriate for the native title system to create financial sustainability for
land holding and management organisations once a determination has been made.

Text Box 1.1: Examples of funding arrangements for land rights
regimes

New South Wales Land Rights
Regime
[96]

Under the Aboriginal Land Rights Act 1983 (NSW), an account was
established, whereby for fifteen years, the state paid an amount equivalent to
7.5% of NSW Land Tax (on non-residential land) into statutory accounts
administered by the New South Wales Aboriginal Land Council (NSWALC), as
compensation for land lost by the Aboriginal people of NSW.

That annual payment ceased in 1998 when a clause in the Act, known as the
Sunset Clause, took effect. Since then, the NSW Aboriginal Land Council has been
self-sufficient, funding its activities and supporting Local Aboriginal Land
Councils with the money made from its investments.

The capital, or compensation, accumulated over the first 15 years of the
Council's existence remains in trust for the Aboriginal people of NSW and cannot
be touched. Interest from NSWALC’s investments fund the
organisation’s head office in Parramatta, which oversees and funds the
network of Local Aboriginal Land Councils.

NSWALC also funds land claims, related test-case litigation and supports
the establishment of commercial enterprises which create an economic base for
Aboriginal communities.

Aboriginals Benefit Account - Northern
Territory
[97]

The Aboriginals Benefit Account (ABA) is a Special Account (for the
purposes of the Financial Management and Accountability Act 1997 (Cth))
established for the receipt of statutory royalty equivalent monies generated
from mining on Aboriginal land in the Northern Territory (NT), and the
distribution of these monies.

The ABA is administered by the Department of Families, Housing, Community
Services and Indigenous Affairs in accordance with the Aboriginal Land Rights
(Northern Territory) Act 1976
(Cth).

The ABA funds are used to meet the operational costs of the Land Councils
in the NT and to pay compensation to traditional owners and other Aboriginals
living in the NT that have been affected by mining. The ABA can also make grants
for the benefit of Aboriginal people in the NT and in exercising this function,
the Commonwealth Minister receives advice from an Account Advisory Committee
with Aboriginal majority membership.

Government support at all levels is crucial to the success of the system
overall and to meeting the goal of closing the gap.

Prescribed Bodies Corporate – regulation

Since its commencement in 2007, I have raised concerns about the application
of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act).[98] I
have previously:

  • called for a review of the impact of the CATSI Act on Indigenous
    corporations, in particular on the ability of Registered Native Title Bodies
    Corporate (also known as PBCs)[99] to protect and utilise their native title rights and interests
  • recommended that the Government ensure that funding provided to registered
    PBCs is consistent with the aim of building the capacity of PBCs to
    operate.

Those recommendations have not been addressed.

FaHCSIA has advised that $545 750 was provided to NTRBs during the 2008-09
financial year for allocation to specific PBCs. In addition, FaHCSIA advised
that the ORIC also expended $1.5 million in training to Indigenous corporations,
some of which was provided to PBCs. ORIC organised and funded five workshops for
PBCs, which were attended by 15 groups during the 2008-09 financial
year.[100]

While I acknowledge and support the critical work of the ORIC in developing
the governance capacity of Indigenous organisations (including PBCs), I am
concerned that at least two registered PBCs have been placed under
administration during this reporting
period.[101] This emphasises the
need for a review of the impact of the CATSI Act on Indigenous corporations.

^top

1.4 Significant cases affecting native title and
land rights

(a) The constitutional validity of compulsory
acquisitions under the Northern Territory intervention:
Wurridjal v
Commonwealth

(i) Background

In February 2009, the High Court handed down its decision in Wurridjal.[102] In the
case, the Court considered the constitutional validity of certain provisions of
the legislation which supported the Northern Territory
intervention.[103]

Two senior members of the Dhukurrdji people (traditional owners of an area
including the town of Maningrida) and a business in Maningrida (the Bawinanga
Aboriginal Corporation) argued that three aspects of the intervention were
acquisitions of property under the Constitution:

  • the compulsory acquisition of five-year leases over township land in
    Aboriginal communities across the Northern
    Territory[104]
  • changes to the permit system, which stated that permits were no longer
    required to enter common areas of community land nor the roads connecting
    them[105]
  • the alleged subordination of Aboriginal people’s rights to enter upon
    and use or occupy the land in accordance with Aboriginal
    tradition.[106]

More
than a year after the intervention began no rent or compensation for the changes
had been discussed with traditional owners or the Land
Councils.[107]

(ii) Arguments of the parties

In the High Court, the plaintiffs claimed that the Commonwealth had acquired
Aboriginal property rights on other than just terms, in breach of the guarantee
offered to property-holders in s 51(xxxi) of the
Constitution.[108] They sought a
declaration that, to this extent, the intervention legislation was invalid.

The Commonwealth claimed that because the intervention legislation was made
under the Territories power of the Constitution (s
122),[109] the safeguard of just
terms for the acquisition of property in s 51(xxxi) of the Constitution did not
apply.

In the alternative, the Commonwealth claimed that no property was acquired
because the Land Trust’s fee simple interest in the land was a mere
statutory entitlement (created under the Aboriginal Land Rights (Northern
Territory) Act 1976
(Cth) (the ALRA)) and therefore it was defeasible and
could be changed by another Commonwealth law. They argued that the changes that
were made for the intervention were less than an ‘acquisition’,
because under the ALRA the Commonwealth continued to have a significant level of
control over Aboriginal land.

Finally, in the event that the Court held that there was an
‘acquisition of property’ in the constitutional sense, the
Commonwealth argued that the provisions in the intervention legislation which
allowed court action to recover reasonable compensation, satisfied the
requirement for ‘just terms’.

(iii) Decision of the High Court

Therefore, the High Court considered three issues:

  1. Whether the requirement for just terms compensation in s 51(xxxi) of the
    Constitution applies to laws made for the territories under s 122 of the
    Constitution.
  2. Whether there had been an acquisition of property.
  3. Whether the relevant laws provided just terms.

A majority of the
Court answered ‘yes’ to all
three.[110] The majority overruled Teori Tau v Commonwealth (Teori
Tau
),[111] in which the Court
had held that s 122 is not limited or qualified by s 51(xxxi). They found that
there had been an acquisition of property to which s 51(xxxi) of the
Constitution applied.

However, the majority also found that the intervention legislation provided
just terms, by allowing recovery of ‘reasonable compensation’, if
necessary by court action. Although the plaintiffs ‘won’ on two of
the three questions argued before the Court, the Court required them to pay the
Commonwealth’s legal costs.

(iv) Justice Kirby’s dissent

Justice Kirby dissented on the overall result in Wurridjal. He found
that the applicants should not be knocked out in a preliminary hearing of the
kind adopted by the High Court (a ‘demurrer’), which addressed legal
questions divorced from a full trial involving witnesses and other evidence. He
was satisfied that the plaintiffs had an arguable case (particularly with a
majority over-ruling Teori Tau) and should have the opportunity, after
amending and clarifying their claim if necessary, to pursue the matter in a full
hearing. As Kirby J stated:

My purpose in these reasons is to demonstrate that the claims for relief
before this Court are far from unarguable. To the contrary, the major
constitutional obstacle urged by the Commonwealth is expressly rejected by a
majority, with whom on this point I concur. The proper response is to
overrule the demurrer. We should commit the proceedings to trial to facilitate
the normal curial process and to permit a transparent, public examination of the
plaintiffs’ evidence and legal argument... The law of Australia owes the
Aboriginal claimants nothing less. ...

If any other Australians, selected by reference to their race, suffered the
imposition on their pre-existing property interests of non-consensual five-year
statutory leases, designed to authorise intensive intrusions into their lives
and legal interests, it is difficult to believe that a challenge to such a law
would fail as legally unarguable on the ground that no “property”
had been “acquired”. Or that “just terms” had been
afforded, although those affected were not consulted about the process and
although rights cherished by them might be adversely affected. The Aboriginal
parties are entitled to have their trial and day in court. We should not slam
the doors of the courts in their face. This is a case in which a transparent,
public trial of the proceedings has its own
justification.[112]

Justice Kirby attributed legal significance to the indigeneity of the
traditional owners. By contrast Justices Hayne and Gummow stated:

No different or special principle is to be applied to the determination of
the demurrer to the plaintiffs’ pleading of invalidity of provisions of
the Emergency Response Act and the FCSIA Act because the plaintiffs are
Aboriginals. No party to this litigation sought to rely upon any such principle,
whether the suggested principle be described as a rule of
‘heightened’ or ‘strict’ scrutiny or in some other way.
There was therefore no examination of the content of any such principle. But we
would agree that such a principle ‘seems artificial when describing a
common interpretative function’. In any event, to adopt such a principle
would have departed from the fundamental principle of ‘the equality of all
Australian citizens before the
law’...[113]

Recognising another consequence of the special status of traditional owners
compared to other land owners in Australia, Justice Kirby reiterated his
comments in the Griffiths[114] case in
which he emphasised that Indigenous peoples’ rights deserve special
protection and that any law purporting to extinguish or diminish Indigenous
peoples’ land rights can only do so by ‘specific legislation’
which expressly states this
intention.[115]

He supported this principle with a discussion of relevant international law
which ‘recognises the entitlement of indigenous peoples, living as a
minority in hitherto hostile legal environments, to enjoy respect for, and
protection of, their particular property
rights’.[116]

Justice Kirby concluded:

In these proceedings a growing body of international law concerning
indigenous peoples exists that confirms the rules that are already now emerging
in Australian domestic law. Laws that appear to deprive or diminish the
pre-existing property rights of indigenous peoples must be strictly interpreted.
This is especially so where such laws were not made with the effective
participation of indigenous peoples themselves. Moreover, where (as in
Australia) there is a constitutional guarantee providing protection against
‘acquisition of property’ unless ‘just terms’ are
accorded, development of international law will encourage the national judge to
give that guarantee the fullest possible protective
operation.[117]

The plaintiffs’ status as traditional owners also influenced Justice
Kirby’s consideration of what actually constitutes just terms. He referred
to case law and the differences between the Australian Constitution and the
drafting of the Constitution of the United States of America to support his view
that ‘[a]t least arguably, “just terms” imports a wider
inquiry into fairness than the provision of “just compensation”
alone’.[118]

Justice Kirby considered the implications of this view for the acquisition of
traditional owners’ land. He stated that:

This might oblige a much more careful consultation and participation
procedure, far beyond what appears to have occurred here. ...

Given the background of sustained governmental intrusion into the lives of
Aboriginal people intended and envisaged by the National Emergency Response
legislation, ‘just terms’ in this context could well require
consultation before action; special care in the execution of the laws; and
active participation in performance in order to satisfy the constitutional
obligation in these special factual circumstances
...[119]

(v) Significance of the decision

The decision of the High Court in Wurridjal is significant for several
reasons. A majority of judges over-ruled Teori Tau and said
effectively that the just terms guarantee applies in the territories in the same
way that it does in the states. This is important for everyone who lives in a
territory and is therefore subject to Commonwealth laws passed under s 122 of
the Constitution. I am particularly pleased that a majority recognised the
unfairness of the rule in Teori Tau, because Aboriginal people make up
almost 30% of the population in the Northern Territory and they hold fee simple
(or freehold) title to almost 50% of the land there. These property rights were
vulnerable to second-class treatment by the Commonwealth under the old law.

As I noted earlier, in Wurridjal the Commonwealth argued that it
retained such a strong controlling interest over Aboriginal land in the Northern
Territory that it could impose a five-year lease against the wishes of
traditional owners (with apparently no obligation to pay rent) and yet not
trigger the obligation to provide just terms. Another welcome feature of the
case is that a majority of the Court rejected this argument. The decision
reaffirmed the legal strength of Aboriginal property rights under the ALRA and
the independent degree of control over land enjoyed by traditional owners.

On the other hand, the case has left some important questions unanswered
about the ‘valuation’ of Aboriginal property rights and the
legitimacy or otherwise of applying normal ‘real estate’ principles
regarding compulsory acquisition and compensation to these unique property
interests. Because of the way the case was dealt with, the plaintiffs’
arguments that special procedures for acquisition and non-monetary compensation
might be required to meet the constitutional standard of just terms remain
unresolved.

It is also unclear from the Court’s decision whether the changes to the
permit scheme, on their own, effect an acquisition of property. This remains
important for the future, particularly if further unilateral changes are made by
Parliament to the rules for entering on Aboriginal land or the permit changes
remain in place after expiry of the five-year
leases.[120]

The Government is accountable for the arguments that its legal
representatives put before courts. The Commonwealth’s arguments in this
case raise a number of concerns about the Government’s approach to
Indigenous peoples’ land
rights.[121]

The Government disputed whether any compensation needed to be paid simply
because the acquisitions were in the Northern Territory.

Perhaps even more concerning was the Government’s alternative argument
that five-year leases were a statutory readjustment and not an acquisition of
property. This can be seen as an attempt by the Commonwealth to treat Aboriginal
land as an inferior form of title.

A further concern remains about the Commonwealth Government’s conduct
– the failure to pay rent and compensation for the leases in a timely
manner.

In October 2008, well after proceedings in this case had commenced, the
Government requested the Northern Territory Valuer-General to determine the
rents that should be paid for the compulsory five-year leases.

On 27 February 2009, about a month after the Wurridjal decision was
handed down, the Government announced that it had finalised boundaries for all
64 five-year leases that were acquired by the Government as part of the Northern
Territory Emergency Response. The review of the lease boundaries resulted in
changes to the leases to reduce the area leased and allowed for the Government
to accurately determine the area for which they would pay rent. The Minister for
Indigenous Affairs, stated that the Government recognised ‘that reasonable
rent must be paid to
landowners’.[122]

In August 2009, the Minister advised me that:

In October 2008, in response to the recommendation of the Northern Territory
Emergency Response Review Board, I wrote to the Northern Territory
Valuer-General requesting that he determine reasonable amounts of rent to
be paid to owners of land subject to five-year leases under the NTER. In
March of this year, I made an additional request of the Valuer-General to also
determine rent to be paid under the reduced lease boundaries that came into
effect on 1 April 2009. The Valuer-General was asked to give these requests
his prompt attention. I am advised that the Valuer-General is currently
finalising his draft report, a copy of which will be provided to FaHCSIA as well
as the relevant land councils for comment. I expect to receive the
Valuer-General’s final report containing both sets of
determinations in late August 2009. The payment of rent will commence
shortly after.[123]

At the time of writing this Report, the Government had still not paid rent or
compensation for the leases.

I further consider the Government’s approach regarding the payment of
rent and the assessment of compensation in Chapter 4 of this Report.

I am also concerned that the Commonwealth drafted compensation provisions
which required a full-scale constitutional case to establish entitlements and
yet, when the Aboriginal parties defeated the Commonwealth on two out of three
constitutional arguments, they were nonetheless ordered to pay the
Commonwealth’s legal costs.

Only Kirby J considered that the costs order was unjust:

They brought proceedings which, in the result, have established an important
constitutional principle affecting the relationship between ss 51(xxxi) and
122 of the Constitution for which the plaintiffs have consistently argued. It
was in the interests of the Commonwealth, the Territories and the nation to
settle that point. This the Court has now done. In my respectful opinion, to
require the plaintiffs to pay the entire costs simply adds needless injustice to
the Aboriginal claimants and compounds the legal error of the majority's
conclusion in this case.[124]

The end result is inequitable. Between the calculated drafting strategy of
the Commonwealth and the costs order of the Court, the law seems to have
operated unfairly.

(b) The requirement to negotiate in good
faith
: FMG Pilbara Pty Ltd v Cox

(i) The future act regime

The future act regime deals with proposed development on native title
country. Particular forms of development likely to have a substantial native
title impact attract additional procedural protections for native title parties.
These protections are known as the ‘right to negotiate’ and they
apply to the grant of some mining tenements (leases and licences) and certain
compulsory acquisitions. The Act places emphasis on negotiation as the means for
addressing the native title issues at stake in such future acts, by preventing
resort to an arbitral body (usually the NNTT) for a period of six months. Time
runs from the issue of a notice that the government intends to grant a mining
tenement (s 29 notice). During this negotiation window, s 31 of the Native Title
Act obliges the parties involved to negotiate in good faith. The main
negotiating parties are the mining company (grantee) and a registered native
title claimant group or the recognised native title holders for the area, with
the state or territory government playing a passive or sometimes more active
role as well.

In FMG Pilbara[125] (decided in April 2009), the Full Federal Court considered what is required for
parties to fulfil the obligation in s 31 to ‘negotiate in good faith with
a view to obtaining the agreement of each of the native title parties to the
doing of the act or the doing of the act subject to
conditions’.[126]

(ii) Background to the appeal

The Western Australian Government gave notice of its intention to grant
Fortescue Metal Group (FMG) a lease to mine an area in the Pilbara region. The
proposed lease overlapped a registered native title claim and an area where
native title had been determined.

As required by the Native Title Act, FMG negotiated with both native title
parties – the Puutu Kunti Kurrama and Pinikura People (PKKP), a registered
native title claimant group for part of the area, and the Wintiwari Guruma
Aboriginal Corporation (WGAC), the registered native title body corporate for
the balance of the area.[127] Six
months after the notice, none of the parties had reached an agreement. FMG
applied to the NNTT for a determination whether the future act could proceed,
with or without conditions. Both the native title parties alleged that FMG had
not fulfilled its obligation to negotiate in good faith.

FMG had approached the negotiations on a ‘whole of claim’ basis.
That is, the miner sought a comprehensive Land Access Agreement (LAA) that
bundled together not only the specific grant of the mining lease in question,
but all the other future activities it might wish to undertake on the native
title land in question, in pursuit of exploration and mining projects. This
included obtaining tenure for mining as well as for railway and port
infrastructure, and the authority to extract water.

Most of the discussions between PKKP and FMG had concerned the finalisation
of a negotiation protocol, an agreed process for dealing with these
comprehensive negotiations. PKKP claimed there had only been one meeting
following the conclusion of the negotiation protocol about the substance of
FMG’s proposed activities.

The native title parties drew attention to a number of aspects of FMG’s
behaviour, raising two questions in particular about the obligation to negotiate
in good faith:

  • If negotiations have reached only a preliminary stage at the expiry of six
    months, does it show an absence of good faith for a miner to ‘bail
    out’ of those negotiations and seek an arbitral determination? One set of
    negotiations were said to have involved only one meeting about the substance of
    FMG’s proposed activities.
  • If discussions over a particular mining grant are incorporated into a
    broader negotiation over future activities on the land, what happens if those
    broader negotiations falter? Did the good faith requirement oblige FMG to return
    to the table and seek agreement to the particular grant, once the wider LAA
    talks stalled? Or was the company free to seek arbitration at that point?

The NNTT found in favour of the native title party on both issues.
The NNTT said that ‘although FMG had approached negotiations with PKKP in
relation to the LAA in a manner which was reasonable and honest, it had not
advanced those negotiations to a stage where it could be said that it had
discharged its duty to negotiate in good
faith’.[128] Also, FMG
should have reverted to more specific negotiations when broader talks stalled.
The absence of good faith negotiation meant that the NNTT had ‘no
jurisdiction’ to determine whether the future act could be done or
not.[129]

(iii) Decision of the Federal Court

FMG appealed the NNTT’s decision to the Federal Court and was
successful on both issues. The Court found that, regardless of the stage reached
in negotiations, all that the Act requires is that the parties negotiate in good
faith about the doing of the future act during the six month period. Once that
time expires, a future act determination can be sought. The Court also
considered that in this case, the broader negotiations the parties had embarked
on were sufficient to discharge the obligation to negotiate in good faith in
relation to the particular future act in
question.[130] There was no need
to revert to negotiations about the specific mining grant itself before seeking
arbitration.

The Court found that, as FMG had acted in good faith during the six month
period, the NNTT had the power to make a determination as to whether the act
could be done. [131]

In its decision, the Court made a number of observations:

  • The expression in s 31 of the Native Title Act that the parties must
    ‘negotiate in good faith’ should be given its natural and ordinary
    meaning.[132] The provision is
    intended to be beneficial to native title parties and should not be given a
    narrow interpretation.
  • The Act does not compel parties to negotiate over specified matters or in a
    particular way and, here, neither native title party had objected to
    negotiations being conducted on a whole of claim or project wide
    basis.[133]
  • ‘Good faith’ requires consideration of the party’s conduct
    – what it has done, and what it has not done – as an indication of
    the party’s state of mind during the
    negotiations.[134]
  • Merely to ‘go through the motions’, with a rigid and
    pre-determined position may show a lack of good faith. But in this case, the
    NNTT had found that FMG had a genuine desire to reach agreement in its
    negotiations and there was no evidence that FMG had engaged in deliberately
    misleading behaviour. These and other factual findings showed ‘there had
    been conscientious and bona fide negotiation for a six-month
    period’.[135]
  • The requirement to negotiate in good faith in s 31 does not mean that the
    parties have to reach a certain stage in their negotiations by the end of the
    six month period.[136] Instead,
    the Court stated that:

    [T]here could only be a conclusion of lack of
    good faith within the meaning of [s 31]...where the fact that the negotiations
    had not passed an ‘embryonic’ stage was, in turn, caused by some
    breach of or absence of good faith such as deliberate delay, sharp practice,
    misleading negotiating or other unsatisfactory or unconscionable
    conduct.[137]

(iv) Policy implications of the decision

One of the main virtues of agreement-making is that it provides much greater
flexibility for the parties. There are limits to what the Act can prescribe,
particularly in substantive terms, when it comes to mining negotiations. Similar
constraints apply to courts and tribunals.

However, the obligation on miners to negotiate in good faith, before any
other option arises to proceed with their development, is one of the few legal
safeguards that native title parties have under the future act regime. The Full
Federal Court decision in FMG Pilbara shows that the Act provides
insufficient legal protections and that, even under the existing law, the Courts
could legitimately enforce the good faith requirement more vigorously.

I am concerned that in FMG Pilbara the Act was interpreted in ways
which unnecessarily strengthened the position of mining companies over native
title interests. For example, s 31(1)(b) requires good faith negotiation towards
agreement about ‘the doing of the act’ and the act here was the
grant of the specific tenement. The Court would have been well justified in
finding that negotiations addressing a much broader range of issues lacked the
specificity required by the precisely chosen language in the Act.

The Court also applied only a loose form of judicial scrutiny to the decision
by FMG to ‘bail out’ of substantive negotiations at a very early
stage. Whereas the NNTT in the FMG Pilbara litigation had emphasised the
‘reasonable person’ test employed in earlier future act decisions to
assess the behaviour of the mining
company,[138] the Full Federal
Court seemed to rely on a much looser standard of behaviour. The embryonic stage
of negotiations had to be attributable to ‘sharp practice’ or
‘unconscionable conduct’ or the
like,[139] before the withdrawal
from negotiations at that early stage could justify a conclusion of lack of good
faith. This narrow interpretation ‘raises the bar even further for native
title parties who seek to oppose applications [for arbitration] under s
35’.[140] Native title
lawyer Sarah Burnside has suggested that ‘only an unusually careless
proponent risks being found to have failed to meet the threshold’. [141]

This is supported by research conducted by Tony Corbett and Ciaran
O’Faircheallaigh in 2006:

We identified 13 cases where the Tribunal made determinations about
‘good faith’ in negotiations related to the grant of mining leases,
and 17 determinations ... over whether the grant of a mining lease might
proceed. In only one case was a decision made that ‘good faith’
negotiation had not occurred, and this involved a situation where the grantee
had made little attempt to engage with the native title party and had made clear
that it was participating in the RTN process only so that it could proceed to
arbitration by the Tribunal ... these findings strongly suggest that grantee
parties have little to fear from the arbitration process...Unless they engage in
behaviour that patently demonstrates the absence of an intention to engage in
negotiation, they appear unlikely to be required to re-commence the RTN process
with a consequent delay in project
development.[142]

In short, courts and tribunals should employ appropriate rigour and standards
of reasonableness when applying the good faith requirement.

I also consider the right to negotiate provisions need to be amended so that
they provide much stronger incentives for the negotiation of agreements that are
fair to native title parties and their legitimate concerns when mining is
proposed on their land. I consider potential options for reform in Chapter 3 of
this Report.

(c) The first decision that a mining lease must not
be granted:
Western Desert Lands Aboriginal Corporation (Jamukurnu
– Yapalikunu) / Western Australia / Holocene Pty Ltd

In May 2009, the NNTT handed down its first decision that a mining lease must
not be granted because of its impact on the native title
holders.[143] It was a landmark
decision, although its broader significance beyond this case will remain unclear
for some time.

(i) Decision of the NNTT

In Holocene,[144] the
NNTT considered whether the Western Australian Government could grant a mining
lease to a company (the grantee party, Holocene
Ltd)[145] on land over which
native title has already been determined to exist.

The proposed lease was for 3144 hectares in the Gibson Desert in Western
Australia, from which the grantee wanted to extract and process potash for sale
as fertiliser. Brine from a very large body of salty water, Lake Disappointment,
would be channelled by a trench many kilometres long and pumped into evaporation
ponds. The potassium salts (potash) would be harvested by trucks and other
machinery and processed at an adjacent diesel-powered plant before being
transported by road to market.

The relevant part of the Lake (which was 87% of the proposed mining lease
area) was within the Martu People’s traditional lands, over which they
hold exclusive possession native
title.[146]

After the Western Australian Government gave notice of their intention to
undertake the future act and grant the mining lease, the Western Desert Lands
Aboriginal Corporation (Jamukurnu-Yapalikunu) (which is the PBC for the Martu
People as the native title holders) negotiated with the grantee company. The
parties were unable to reach agreement and the grantee party applied under s 35
of the Native Title Act to have the NNTT determine whether the lease could be
granted.

The grantee company and the Western Australian Government both asked the NNTT
to rule that the lease could be granted; the Martu People asked the NNTT to rule
that the lease must not be granted.

Section 39 of the Native Title Act provides a list of criteria that the NNTT
must take into account when determining whether the act can occur. It must
consider how the act impacts on:

  • The
    enjoyment by the native title parties of their registered native title rights
    and interests. For this factor, the NNTT will assess the evidence relating to
    the actual exercise or enjoyment of the registered native title rights in the
    area.[147]
  • The way of life, culture and traditions of any of those
    parties.[148]
  • The development of the social, cultural and economic structures of any of
    those parties.[149]
  • The freedom of access by any of those parties to the land or waters
    concerned and their freedom to carry out rites, ceremonies or other activities
    of cultural significance on the land or waters in accordance with their
    traditions.[150]
  • Any area or site, on the land or waters concerned, of particular
    significance to the native title parties in accordance with their
    traditions.[151] For this factor,
    the NNTT will consider the operation and effectiveness of any protection
    afforded under a state or territory heritage protection regime and the length of
    time the project will last.

In addition, under s 39, the NNTT must
consider:

  • The interests, proposals, opinions or wishes of the native title parties in
    relation to the management, use or control of land or waters in relation to
    which there are registered native title rights and interests, of the native
    title parties, that will be affected by the
    act.[152]
  • The economic or other significance of the act to Australia, the state or
    territory concerned, the area in which the land or waters concerned are located
    and Aboriginal peoples and Torres Strait Islanders who live in that area. For
    this factor, the NNTT must consider the significance of the future act itself,
    not its contribution to the maintenance of a viable mining industry overall. The
    native title party’s legal entitlement to compensation is not considered
    an economic benefit.[153]
  • Any public interest in the doing of the act. The NNTT considers that there
    is a public interest in having a successful mining industry but it also
    considers that it may be in the public interest to refuse the grant of a mining
    tenement.[154]
  • Any other matter that the arbitral body considers relevant. The NNTT may
    consider a range of factors, including any environmental protection regime and
    the impact this will have on the restoration of the area and the native title
    party’s rights and interests. The NNTT may also consider the native title
    party’s initial readiness to contemplate mining and its opposition to the
    granting of the lease when there was a failure to agree on acceptable
    terms.[155]

In this
decision, the NNTT considered each of these elements and weighed up the evidence
before it. In considering the evidence, the NNTT referred to the difficulty it
has in giving weight to the various criteria it is required to consider:

We accept that our task involves weighing the various criteria by giving
proper consideration to them on the basis of evidence before us. The weighing
process gives effect to the purpose of the Act in achieving an accommodation
between the desire of the community to pursue mining and the interest of the
Aboriginal people concerned.

The criteria involve not just a consideration of native title but other
matters relevant to Aboriginal people and to the broader community. There is no
common thread running through them, and it is apparent that we are required to
take into account quite diverse and what may sometimes be conflicting interests
in coming to our determination. Our consideration is not limited only to the
specified criteria. We are enabled by virtue of s 39(1)(f) to take into
account any other matter we consider relevant.

The Act does not direct that greater weight be given to some criteria over
others. The weight to be given to them will depend on the
evidence.[156]

Consequently, the NNTT considered each factor, and referred to the preamble
of the Native Title Act and the principle that a beneficial construction should
be given to the provisions of the Act which are designed to protect native title
rights and interests or which otherwise reflect other interests and concerns of
native title parties and Aboriginal people so as to give the fullest relief
which the fair meaning of the language will
allow.[157]

It recognised that ‘the Martu Elders’ affidavit evidence clearly
supports the agreed concession that the native title party has made that they
are not opposed to mining over parts of the Lake but only wishes mining to
proceed on terms acceptable to
it’.[158] The NNTT
considered:

[The Martu People] were willing to make serious sacrifices in relation to the
integrity of their culture and traditions with prospects of gaining benefits
from the Project that assist them to achieve their long term goals of
employment, business opportunities and economic advancement...But the tenor of
their evidence is that they want this to happen in a way that pays respect to
their culture and traditions as far as
possible.[159]

While recognising that the Native Title Act does not give native title
parties a right of veto, the NNTT reiterated that it does have the power to
determine that the act must not be done based on the
evidence.[160]

It is accepted that a native title party under the Act does not have a veto
in the sense that they can say ‘no’ to a development proposal and
have the [NNTT] automatically accept that view no matter what the circumstances.
However, they are entitled to say ‘no’ and to have the [NNTT] give
considerable weight to their view about the use of the land in the context of
all the circumstances. In my view this is such a
case.[161]

The NNTT found that the site in question was of particular significance to
the Martu People. In addition, the NNTT referred to the fact that the Martu
People’s native title was the subject of a finalised court determination
and of a ‘substantial kind’ (that is, exclusive possession). These
facts increased the weight that could be given to the native title
holders’ interests, proposals, opinions or wishes in relation to the
management, use or control of the area:

As a general proposition, there is a difference between making a future act
determination over an area of exclusive possession and making a determination
over an area where the right to exclusive possession has been extinguished and
the capacity to exercise or enjoy other native title rights is seriously
attenuated because of the exercise of non native title rights, such as pastoral
interests which may have existed since the early days of European
settlement.[162]

Finally, the NNTT also considered whether it could determine that the future
act should be allowed to occur subject to a condition that a monetary payment be
made or equity granted in Reward Ltd. Considering precedents, the NNTT confirmed
that it is not within its power to impose conditions of the kind sought by the
native title party for the awarding of compensation or payments in the nature of
compensation:

It can be accepted that the Tribunal has power to direct the payment of
monies to the native title party for matters which it must attend to under
conditions such as the conduct of heritage surveys or attendance at liaison
committee meetings. However once a payment or benefit is properly identified as
compensation the Tribunal has no power to impose provision of it by way of
condition...[163]

Here the Martu People would be entitled to compensation as
‘owners’ under the Mining Act 1978 (WA), although the
suggestion in the case is that this would not be a large sum. The benefit to the
Martu People from the project was ‘not likely to be very
great’.[164]

Overall the NNTT said that the project was of general economic significance
and would not have a substantial effect on the Martu and their interests, except
for the effect on Lake Disappointment, a place of special significance. But this
last factor was critical, when combined with the opposition to the mine
expressed by the Martu People once acceptable terms (beyond the legal
entitlement to compensation and other modest benefits) could not be agreed.

Holocene applied to the Commonwealth Attorney-General under s 42 of the
Native Title Act to have him overturn the decision on the basis that it was in
the national interest, or in the interests of Western Australia, to do so. I am
pleased to see that the Attorney-General refused to disturb the NNTT’s
finding in favour of the Martu People.

(ii) Policy implications of the decision

There are glaring deficiencies in the right to negotiate provisions.
Developers can be close to certain that their projects will be approved by the
NNTT if they do not reach agreement:

The Act creates a strong incentive for native title parties to negotiate
agreements. If they fail to do so and the Acts arbitration provisions are
applied by the National Native Title Tribunal, the native title parties lose an
opportunity to obtain compensation related to the profits or income derived from
a mining operation. In principle, the Act also creates incentives for grantees
to reach agreement because if they fail to do so and enter arbitration the
Tribunal may decline to grant the interests they seek or impose onerous
conditions on any grant it makes. However, in practice, the Tribunal has applied
the arbitration provisions of the NTA in a manner that renders them largely
innocuous from the perspective of grantees. The result is fundamental inequality
in bargaining positions. This undermines the purposes of the NTA and leads to
agreements that favour
grantees.[165]

However, this decision may shift that balance of power ever so slightly. It
has been recognised that:

The decision would require miners to pay closer attention to sites of
cultural significance for native title holders, and would encourage them to
settle lease negotiations before any investment in projects.

... in this case the interests of the native title holders outweighed the
potential economic benefit, and thus the public interest in the mining
project.[166]

As Tony Wright, CEO of the Western Desert Lands Aboriginal Corporation
(Jamukurnu-Yapalikunu), the PBC for the area said

It’s not about money. It’s about a whole range of things that the
traditional owners would like to have taken into account ... the significance of
the lake cannot be
understated.[167]

There are important factual features in this case which have often been
absent in future act arbitrations to date and which appeared to exert a
significant influence on the NNTT’s decision. The Martu People held
exclusive possession native title rights and interests already the subject of a
court determination and there was strong evidence from a range of sources
establishing Lake Disappointment as a site of great significance. Due mainly to
a stock exchange announcement by the company, there was clear evidence that
during negotiations, in recognition of the project’s impact, the company
had offered cash payments, royalties and equity in Reward Ltd, benefits not
available from an arbitral decision by the NNTT – such evidence would not
normally be disclosed and available to inform the NNTT’s decision.

The rarity, so far, of the decision in Holocene to refuse a mining
grant reinforces the need to revisit the statutory balance of interests struck
in this part of the future act regime. I return to this issue in Chapter 3 of
this Report.

Text Box 1.2: Affidavit evidence of the Martu Elders
The affidavit evidence provided by the Martu Elders is an example of the
kind of concerns that many traditional owners have when non-Indigenous people
want to use their lands:
As a community everyone has a right to be involved in decisions affecting
our community and our lands, but especially those people connected to the Lake
Disappointment country. There are many other Martu people who have to be
consulted about things affecting Lake Disappointment and all of Martu have to be
consulted about things affecting our land and our communities. ...
But the Martu also know that we have to live in a world with white men and
white men’s law. We know that to protect our land, sometimes we have to
give up a little bit even if it affects our culture and law. But the white man
cannot have all our land. We give them a little bit but no more. We let go of a
fingernail, and it hurts us, but we do this so we do not have to lose an arm. So
we agreed to let Holocene to come onto parts of our land, but no more, so we
could protect and save all the other parts of our land. This is the price we
must pay to protect our culture and our Law for the future of the Martu.
But we are only willing to give up land if we are satisfied that we know
where and how the miner is working and we are able to control those activities
under Martu Law. We must also be given what we think is fair compensation for
giving up our land and for the effect on our culture. Otherwise we will not
agree to give up the land. ...
We are angry that Holocene’s lawyers have said that under the white
man’s law any compensation for the loss of part of our land “will be
small”.
The Martu fought long and hard to have the white man recognise what the
Martu have always known – that the land is Martu land. The native title
determination was the white man’s law finally recognising this fact.
From what Holocene’s lawyers are saying, the land can be taken away
again against our will and for small compensation. They don’t seem to
respect Martu law and the effect of the Project on Martu and their culture.
...
The Martu believe that if there is trust and respect between the Martu and
miners, shown by the involvement of the Martu in all decisions about the land by
negotiated heritage and access protocols, the use of Martu monitors to oversee
land disturbance and the like, and fair compensation is paid to the Martu for
the use of Martu land, then agreements can be reached. But this is a complex
process and goodwill is needed to agree all the details so that Martu can
finally decide if they are willing to agree to a Project.
Holocene and Reward thought that the payment to the Martu of the money and
royalties and other compensation and shares set out in the Term Sheet was fair
compensation when they agreed to the Term Sheet. It was very important that we
would get royalty payments and shares in Reward as we would own part of the
Project and share in its success and we would keep a share of the land. This
made it easier to agree to allow Holocene to build the Project on our land and
to accept the effect on Martu culture.
Now Holocene and Reward are saying that they will not give us a royalty or
shares in Reward and that Holocene and the Government only have to pay very
small compensation because they think the land is worth so little. This is a
white man’s attitude and completely ignores the impact on Martu culture by
the mining activities, particularly as this will happen without our approval.
The Martu have rights including the right to decide who comes onto the land and
who uses the land. We will lose this right and also the right to use the land to
hunt and find food around the Project. Everyone but the Martu will be making
money from the Martu land.
If there is no trust and respect, if there is no Martu involvement and no
fair compensation paid to the Martu, then the Martu will not agree to mining on
Martu land. We do not understand why Reward agreed to the compensation in the
Term Sheet and now think they can go ahead without paying the compensation and
against our wishes. ...
At the time that the 2008 Survey was done, as explained above, the Martu
were willing to compromise their position and to allow the potash Project to
proceed, but only because we thought fair compensation had been agreed and only
in the areas that the Martu said could be used and only with the full
involvement of the Martu during construction and operations to ensure that there
was no more interference than was acceptable.
To the Martu, this is the only way to protect our culture and Law for the
future. The Martu have responsibility for the Lake, we must care for the Lake
and by doing so, for all Martu. We do this by practising our Law and with
ceremonies and songs. The Martu think long term, for our future generations, not
just the next 20 or 30 years. ...
The Martu will work with Holocene and Reward about jobs for the
Martu.
The Martu know which parts of the Lake are safe and which are not. We will
not work on those areas that are not safe.
We want jobs for our people, but more than that, we want contracts for our
companies, like our trucking company, and we want contracts to build and
maintain the roads and track. This will give us independence, experience and a
future, so we can develop our communities and offer our young people a future on
their country. We want our boys and girls to go to University and learn trades
to be able to work for and help their people. We want to use any money that we
get from this Project to do these things for our people. We thought all this
would be discussed as part of the Stage 2 of our negotiations with Holocene and
Reward and be part of our agreement.
The Martu want to do a ceremony at the Lake before any mining starts so
that we can make sure the spirits understand who is coming onto the Lake and
that they will respect our culture and Law. This will protect the workers on the
Lake and all those who go there for the mining and for our people.
We also want Reward to make sure that there are signs near our sites
telling white men that they are not to go there. We want our sites to be
protected and we want to be consulted about where signs and fences should be put
and how the company will carry out its operations.
The Martu need to be consulted about the Lake and the mine because the
Martu are responsible for the Lake. It is part of us; it is our culture and our
Law. We should be told exactly where Holocene plans to mine, the location of its
plant, camp, trenches and ponds. Holocene must respect our sites and those areas
that we have told them are not to be disturbed. This is all explained in the
2008 survey. In the end Martu need to be told about all aspects of the Project
and operations before we can decide whether we are prepared to agree to it going
ahead.[168]

^top

1.5 International human rights developments

The Prime Minister has commented that:

[Australians] believe in a fair go for everyone, and everywhere, and that
belief in a fair go means that as a nation we seek to make a difference and
support human rights and fundamental freedoms around the world and at
home.[169]

In this section, I consider developments in international human rights law
that concern native title. I urge the Australian Government to implement its
commitment to supporting human rights and to take heed of these
developments.

(a) The Declaration on the Rights of Indigenous
Peoples

In last year’s Social Justice Report I summarised the
Declaration on the Rights of Indigenous Peoples, which was adopted by the United
Nations General Assembly in September
2007.[170] Australia voted against
the Declaration in the General Assembly. I am pleased to report that the
Government formally announced its support of the Declaration on 3 April 2009. It
was a watershed moment in Australia’s modern history.

In supporting the Declaration, the government has committed to a framework
which fully respects Indigenous peoples’ rights and creates the
opportunity for Indigenous and non-Indigenous Australians to be truly equal.

The Declaration includes a number of articles on the rights of indigenous
peoples to our lands, territories and
resources.[171]

In supporting the Declaration, the Minister for Indigenous Affairs
stated:

We also respect the desire, both past and present, of Indigenous peoples to
maintain and strengthen their distinctive spiritual relationship with land and
waters.[172]

Improving the effectiveness and operation of the Native Title Act is
essential in ensuring that these rights are realised. The Attorney-General
considered:

In supporting the Declaration today, the Government is also respecting the
important place land and resources have in the cultural, spiritual, social and
economic lives of Indigenous Australians. Recognising and acknowledging the
history and connection of our Indigenous people with the land is inextricably
linked to respecting their rights and freedoms. We understand that native title
is an important property right that should be recognised and
protected.[173]

The challenge now is for government to build understanding of the Declaration
among government officials and the community and, importantly, to promote and
incorporate the Declaration’s principles into government policy.

Indigenous peoples around the country have begun to use the principles
contained in the Declaration to support the recognition and protection of their
rights. For example:

  • When the Government announced the compulsory acquisition of town camps in
    Alice Springs, the Indigenous Peoples’ Organisations Network of Australia
    called on the Government to comply with its international obligations to respect
    the rights of the Indigenous Peoples of Australia by ensuring that the
    representatives of the Aboriginal people in the region of Alice Springs are able
    to make an informed decision about housing and services for the
    occupants.[174]
  • When negotiations were undertaken by the Kimberley Land Council for the
    location of the gas hub with Woodside and the Western Australian Government
    under the right to negotiate provisions in the Native Title Act, the land
    council held the other parties to the standard of free, prior and informed
    consent. This is a higher standard than required currently by the Native Title
    Act.[175]

The true
value of the Declaration will lie in using it to hold governments to the
standards it affirms and building a consistent pattern of usage over time. 

(b) Treaty monitoring bodies

Throughout the reporting period, three independent bodies that monitor
compliance with international human rights treaties have commented upon issues
relevant to the rights of Aboriginal and Torres Strait Islander peoples to their
lands, territories and resources.

In April 2009, the UN Human Rights Committee (which monitors the
implementation of the International Covenant on Civil and Political
Rights
[176]) welcomed recent
reforms to the native title system. However, the Committee stated that it:

notes with concern the high cost, complexity and strict rules of evidence
applying to claims under the Native Title Act. It regrets the lack of sufficient
steps taken by the State party to implement the Committee’s
recommendations adopted in
2000.[177]

The Human Rights Committee recommended that Australia ‘should continue
its efforts to improve the operation of the Native Title system, in consultation
with Aboriginal and Torres Strait Islander Peoples’. [178]

Similarly, in May 2009 the United Nations Committee on Economic, Social and
Cultural Rights noted with concern that:

despite the reforms to the native title system, the high cost, complexity and
strict rules of evidence applying to claims under the Native Title Act, have a
negative impact on the recognition and protection of the right of indigenous
peoples to their ancestral
lands.[179]

The Committee on Economic, Social and Cultural Rights recommended that
Australia ‘increase its efforts to improve the operation of the Native
Title system, in consultation with Aboriginal and Torres Strait Islander
Peoples, and remove all obstacles to the realization of the right to land of
indigenous peoples’.[180]

In mid-2009, Australia was due to submit its member report for the period 1
July 2002 to 30 June 2008 to the UN Committee on the Elimination of Racial
Discrimination. This report, which would combine Australia’s 15th, 16th
and 17th reports, would report on Australia’s compliance with its
obligations under the International Convention on the Elimination of All
Forms of Racial Discrimination
(the
CERD).[181] At the time of
writing, the final version of the report was not available.
The Committee on
the Elimination of Racial Discrimination has requested the Australian Government
to respond to a Request for Urgent Action submitted by a number of Aboriginal
people residing in Prescribed Areas in the Northern Territory who are subject to
the measures of the Northern Territory
Intervention.[182]

Noting that the Australian Government is in the process of ‘redesigning
key [Northern Territory Emergency Response] measures in order to guarantee their
consistency with the Racial Discrimination Act’, the Committee on the
Elimination of Racial Discrimination requested details of the Government’s
progress:

  • in redesigning the Northern Territory Emergency Response, in direct
    consultation with the communities and individuals affected
  • on lifting the suspension of the Racial Discrimination Act 1975 (Cth).[183]

The
Committee on the Elimination of Racial Discrimination requested that this
information be submitted no later than 31 July
2009.[184]

In relation to the recommendations of the Human Rights Committee and the
Committee on Economic, Social and Cultural Rights, discussed above, the
Attorney-General has informed me that:

The Committees’ recommendations ... will be carefully considered ...
However, the Government has a clear strategy for improving the native title
system and is committed to ensuring that the native title system is flexible and
produces broad benefits to Indigenous people ... the Government is progressing
reforms to improve the rates of claim resolution and to encourage broader
settlements that deliver social justice outcomes beyond answering the question
of whether native title exists. ...

The Government is committed to genuine consultation with Indigenous people
and other relevant native title stakeholders in exploring ways to improve the
native title system. The Government will not rush into making significant change
to the Native Title Act. History has shown that such change requires
proper consideration and
consultation.[185]

(c) United Nations Permanent Forum on Indigenous
Issues

Each year, the United Nations Permanent Forum on Indigenous Issues (the
Permanent Forum) meets in New York to discuss issues related to economic and
social development, culture, the environment, education, health and human
rights.

In 2009, a delegation of Aboriginal and Torres Strait Islander people
attended the Permanent Forum’s eighth session. The delegation made a
number of interventions relevant to issues raised in this report. These included
an intervention by the NSW Aboriginal Land Council on the Government’s
policy of linking the provision of housing services to land tenure reforms and a
joint intervention by the Australian delegation on the Government’s
compulsory acquisition of Town Camps in Alice Springs.

For the first time at
the Permanent Forum, a joint statement by the Indigenous Peoples’
Organisations Network of Australia, the Australian Government and the Australian
Human Rights Commission was presented to the Forum. The three parties to this
landmark statement acknowledged that, while there is still a long way to go to
significantly improve rights protection for Indigenous Australians at the
domestic level, the statement signaled their common intent to:

reset the relationship between Aboriginal and Torres Strait Islander peoples,
Australian Governments and the broader Australian population, premised on good
faith, goodwill and mutual
respect.[186]

A number of the reports and papers presented to the Permanent Forum should be
used to inform the Government’s policy on native title law and policy. For
example, papers were presented on:

  • climate change, human rights and indigenous peoples
  • the report of the International Expert Group Meeting on Extractive
    Industries, Indigenous Peoples’ Rights and Corporate Social
    Responsibility
  • the Anchorage Declaration (from the Indigenous Peoples’ Global Summit
    on Climate
    Change).[187]

Significantly,
the session also included the presentation of a draft guide on the principles in
the Declaration on the Rights of Indigenous Peoples, the International Labour
Organisation Convention No
169
[188] and the International Labour Convention No
107
[189] that relate to
indigenous land tenure and management arrangements. The guide considers:

  • the right to self-determination
  • full and direct consultation and participation
  • free, prior and informed consent
  • the rights of indigenous peoples to traditional lands, territories and
    natural resources
  • respect for indigenous cultural practices, traditions, laws and
    institutions
  • reparation for injury to or loss of indigenous interests
  • non-discrimination against indigenous peoples’ interests
  • respect for the rule of
    law.[190]

The draft
guide elaborates on these principles, discusses developments in interpretation
and provides advice on their implementation.

For example, with respect to the principle of free, prior and informed
consent, the guide states that:

implicit in the principle of Indigenous peoples having a right to free, prior
and informed consent is the notion of capacity; Indigenous peoples who lack the
requisite capacity would be unable to consent in a free and informed manner.
This principle of free, prior and informed consent, combined with the notion of
good faith, may therefore be construed as incorporating a duty for States to
build Indigenous capacity.[191]

Further, the Permanent Forum recently released a Draft General Comment
related to article 42 of the Declaration. Article 42 provides that States shall
promote respect for and full application of the provisions of this Declaration
and follow up the effectiveness of this
Declaration.[192] The Draft
General Comment clarifies that the purpose of the Declaration ‘is to
constitute the legal basis for all activities in the areas of indigenous
issues’ and should be read as a source of international
law.[193]

^top

1.6 Significant developments at the state and
territory level

(a) Vi ctoria – the place to be

Some say that Victoria ‘is the State with the worst record on land
justice in all of
Australia’.[194] However, as
I reported last year, this could change drastically. Victoria may become the
first state to achieve the sort of true land justice that was intended by the
Native Title Act.

On 4 June 2009, Victoria’s Attorney-General announced the adoption of a
new settlement framework as the Government’s preferred method for
negotiating native title. It was a significant day for Aboriginal Victorians.

The objectives of the framework are to:

  • establish a streamlined, expedited and cost effective approach to settling
    native title claims by negotiation, resulting in equitable outcomes consistent
    with the aspirations of traditional owners and the state
  • increase the proportion of Aboriginal people with access to their
    traditional lands in Victoria
  • contribute to reconciliation in Victoria through building stronger
    partnerships with Aboriginal Victorians, resolving long-standing land
    grievances, and strengthening communities and cultural identity
  • increase economic and social opportunities and deliver on key Victorian
    Government
    policies.[195]

When
announcing the framework, the Victorian Attorney-General stated:

Just as the Apology acknowledged the consequences of fracturing families;
just as the preamble to the NTA acknowledged the ‘consequences of
past injustices’; so we must make these same acknowledgments in the
business with which we are charged – getting back to basics ... and making
land justice real.

That’s why I’m delighted to announce that a partnership between
the state and traditional owners has produced an out of court alternative to the
conventional process – the Victorian Native Title Settlement Framework ...

Recognising that land aspirations are primarily about recognition, respect
and opportunities that flow from joint management of land, Framework Agreements,
under the new arrangements, will facilitate packages of benefits in return for
permanent withdrawals of
claim.[196]

I consider that the procedure for negotiating the framework to be an example
of best practice.

In 2005, Native Title Services Victoria (NTSV), a service delivery body that
performs some of the functions of a NTRB for the state of Victoria, supported
the establishment of the Victorian Traditional Owner Land Justice Group (LJG)
‘to find a better way of doing business and achieving workable native
title and land management outcomes in
Victoria’.[197]

In November 2006, the Group decided that its main purpose would be to
negotiate a new policy framework with the state government so that native title
could better meet the aspirations of traditional owners. In 2008, after two
years of hard work, the Victorian Attorney-General announced that a Steering
Committee would be formed to undertake the negotiations. That Steering Committee
was tasked with recommending a new policy framework for native title and land
justice.

The Steering Committee consisted of Professor Mick Dodson (as chair,
facilitator and mediator), five traditional owner negotiators from the LJG, the
CEO of NTSV and senior officers of the Departments of Justice, Sustainability
and Environment, Planning and Community Development and Aboriginal Affairs
Victoria.

All decisions of the Committee were made by consensus.

The negotiators chosen to represent the LJG were nominated by the full LJG in
2007. The negotiations did not consider specific areas of land or benefits for
specific individuals, families or groups, but how native title land justice
settlements could work across all of Victoria. Graham Atkinson, LJG Co-Chair
said: ‘What the individual traditional owner groups do with those
principles ... is their
responsibility’.[198]

He further commented that ‘[t]he framework has come about because of
the commitment by both parties to work together, to achieve greater
understanding of each other’s positions, and make considerable compromises
to reach agreement’.[199] It
was a process undertaken in the true spirit of reconciliation. The parties
respected each others’ positions and kept in mind the underlying reason
why they were in the same room together – to come to real outcomes.

I want to thank the government for creating dialogue with the traditional
owners in Victoria. My advice [to Government] is don't be swayed by public
opinion, which may be negative a lot of times. But you'll find that most
Victorians they are not really racist, they just don't fully understand
Aboriginal needs and expectations. It's a shady area to them... So what I'm
saying is urging the government not to become deterred, just stay there with us
and we'll be marching on the same highway to get some sort of justice at the end
of it.[200]

The framework sets the core principles of what agreements between traditional
owners and the Victorian Government would cover. It includes recognition, access
to land, access to natural resources, strengthening culture and improved native
title claims resolution.[201] The
key areas include:

  • rights and protocols for speaking for country, including how traditional
    owners can be involved in management of state lands and rights to be consulted
    on development or future use of land
  • recognition of traditional owners and their boundaries through native title
    determinations and / or alternative settlements:

Land Justice is an
absolute priority. Aboriginal people need to be recognised for who they are and
the country they belong
to.[202]

  • access to land for traditional owner groups, ranging from management of
    national parks through to transferring land for economic development or cultural
    purposes:

Aboriginal people they base their future, their future
generations, all on land because land is connected with their old existence.
Land and people can't be separate, they’re all
one.[203]

  • access to natural resources including customary use of resources such as
    animals, plants and fisheries:

What's important is creating job
opportunities for our young people's future, certainly for more people; and
working in a landscape, in a natural environment, and the opportunity to benefit
from that.[204]

  • strengthening culture, including signage on country and cultural keeping
    places:

We think it's important for Government to be willing to
give recognition and strengthening in lots of areas... signage on roads
indicating traditional country, cultural centres and keeping places, protocol at
public events, curriculum modules in schools and public monuments to Indigenous
people and language preservation and restoration projects. As we are the
original owners of this land and that we have been dispossessed from our
traditional land. [205]

  • claims resolution including reparation, funding and the terms of agreements:

We're also mindful of the importance of restorative justice through
compensation or reparation because traditional owners will need resources to
establish their base and to operate as viable organisations or bodies to
represent their traditional owner members. [206]

The Victorian Government is beginning consultation on how to implement the
framework. It will also seek financial and policy support from the Australian
Government. Some legislative amendments will need to be made and information
sessions will be delivered. After all this, the negotiation of Individual
Framework Agreements between traditional owner groups and the state government
will begin.

It appears that the framework will contribute to the realisation of many of
the Australian Government’s aims for native title, in that it:

  • encourages out of court settlement of native title claims
  • is expected to speed up the process of making agreements
  • implements the COAG agreement to pursue broader land settlements which are
    comprehensive and sustainable in to the future.

If the framework is
adequately resourced, the Steering Committee predicts that native title would
largely be resolved by 2020.[207] At current estimates, this will be nearly 20 years earlier than the rest of the
country. As Professor Mick Dodson said ‘[t]he Commonwealth has everything
to gain from supporting Victoria’s
approach’.[208]

In addition, and most importantly for Aboriginal Victorians, this approach
will provide a pathway toward justice in a way that is consistent with
Australia’s international human rights obligations.

It is hoped that we will soon see more of this. At the announcement of the
framework, the federal Attorney-General considered that it is an ‘example
of how, by changing behaviours and attitudes, and by resolving native title
through settlements...we can make native title work
better’.[209]

(b) And the others? The states and territories
lingering behind

While Victoria is on the move, the behaviour of other state and territory
governments throughout the reporting period has concerned me. I am particularly
worried about the capacity of governments to consult and communicate effectively
with Aboriginal and Torres Strait Islander communities, and their level of
respect for Indigenous peoples’ native title and land rights.

(i) Western Australia

Over a year into negotiations with traditional owners over the location of a
proposed LNG processing plant in Western Australia, the government of that state
changed. Instead of supporting and engaging productively with the negotiations,
the new Premier, Colin Barnett, said that if an agreement could not be reached,
he would take steps to compulsorily acquire the land:

The companies will develop their gas one way or the other, the state and
federal governments will get their royalties one way or the other, but the
Aboriginal people of the Kimberley will miss out, and I think that would be a
tragedy.[210]

As threats of compulsory acquisition loomed, the Australian Government
stepped in, providing the services of Mr Bill Gray to mediate an outcome. Thanks
to the perseverance of all parties and Mr Gray, an outcome was reached.
In-principle approval for a site was given on 15 April 2009. Negotiations for an
Indigenous Land Use Agreement are continuing and impact assessments are being
undertaken.

(ii) Northern Territory

Despite taking action to prevent compulsory acquisition in Western Australia,
the Australian Government announced plans to compulsorily acquire town camps in
the Northern Territory after negotiations for 40-year leases reached a
stalemate. Just days before the Australian Government’s compulsory
acquisition would have taken effect, Tangentyere Council and 16 town camps in
Alice Springs accepted the 40-year lease over their
lands.[211]

(iii) Queensland

During the reporting period, the Queensland Government continued to work with
traditional owners to negotiate joint management arrangements over national
parks in Cape York under the Cape York Peninsula Heritage Act 2007 (Qld).

Two new National Parks have been declared that will have Aboriginal land as
their underlying tenure: the Lama Lama National
Park[212] (Cape York Peninsula
Aboriginal Land) (35 560 hectares); and the KULLA (McIlwraith Range) National
Park[213] (Cape York Peninsula
Aboriginal land) (this covers almost 160 000 hectares). The management of the
parks is to be undertaken by the Environmental Protection Agency and the Lama
Lama and Kulla Land Trusts under Indigenous Management Agreements.

However, the Queensland Government has continued to pursue further amendments
to the Torres Strait Islander Land Act 1991 (Qld) and the Aboriginal
Land Act 1991
(Qld). This is despite serious concerns and criticism about
the 2008 amendments that make it easier for the Queensland Government to
compulsorily acquire Indigenous
land.[214]

Prior to these amendments, some Indigenous bodies (such as the Torres Strait
Regional Authority) asked for the proposed compulsory acquisition provisions to
be removed from the Aboriginal and Torres Strait Islander Land Amendment Bill
2008 (Qld) until further consultation with communities could be carried
out.[215] Since the amendments
were introduced, there have been calls for consultation on the compulsory
acquisition provisions while the Government considers further changes. These
calls have been largely ignored.

The Queensland Government created further disquiet when it declared river
basins in the Cape York region as Wild Rivers despite concerns and requests for
further consultation and clarity about the impact of the
law.[216]

These developments across the country raise an ongoing concern I have about
the capacity of governments to consult and communicate effectively with
Aboriginal and Torres Strait Islander communities. Throughout my term as
Commissioner, I have given various speeches, submissions and reports that
recommend different ways of consulting and communicating with Indigenous
communities. Some of those principles have been attached at Appendix 3 to this
Report.

^top

1.7 Conclusion

In this reporting period, we have witnessed some important first steps
towards the creation of a just and equitable native title system. I commend the
Australian Government and the Victorian Government for their commitment to
improving the operation of the native title system.

However, the system remains far from perfect. The following chapters of this
Report are designed to further the dialogue on native title reform.

I encourage all levels of government and all political parties to be flexible
and to work with us to implement more far-reaching reforms to improve the native
title system. We must not let this opportunity pass. We must not lose the
momentum for change. But we must ensure the full and effective engagement of
Indigenous peoples in any reform process.

^top


[1] Australian Government, Australian Government Discussion Paper (undated). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009).
[2] Wurridjal v Commonwealth (2009) 237 CLR
309.
[3] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49.
[4] Western Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu) /
Western Australia / Holocene Pty Ltd
[2009] NNTTA
49.
[5] GA Resolution 61/295
(Annex), UN Doc A/61/L.67 (2007). At
http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 17 November
2009). 
[6] Gáldu
Resource Centre for the Rights of Indigenous Peoples, AUSTRALIA: Govt
Consistent in Opposing Indigenous Rights
, http://www.galdu.org/web/index.php?odas=2327&giella1=eng (viewed 15 July 2009).
[7] P Yu, Forging a New Relationship Between Indigenous and non-Indigenous
Australians
(Keynote Address delivered at the Australians for Native Title
and Reconciliation Seminar, Sydney, 2 June
1999).
[8] D Knight, ‘The
native title scaremongers are restless again’, The Sydney Morning
Herald,
22 September 2006. At http://blogs.smh.com.au/newsblog/archives/dom_knight/014011.html (viewed 15 July 2009). See also S Peatling, ‘Fear of native title land
grab in cities’, The Sydney Morning Herald, 22 September 2006. At http://www.smh.com.au/news/national/fear-of-native-title-land-grab-in-cities/2006/09/21/1158431843986.html (viewed 15 July 2009).
[9] S
Peatling, ‘Fear of native title land grab in cities’, The Sydney
Morning Herald
, 22 September 2006, citing Philip Ruddock, the then
Attorney-General. At http://www.smh.com.au/news/national/fear-of-native-title-land-grab-in-cities/2006/09/21/1158431843986.html (viewed 15 July 2009).
[10] The
Federal Court’s decision of Bennell v Western Australia (2006) 230
ALR 603 was summarised in T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2007, Human Rights and Equal
Opportunity Commission (2008), pp 146-150. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 12 October 2009). The Full Federal Court’s appeal decision of Bodney v Bennell [2008] FCAFC 63 was summarised in T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2008,
Australian Human Rights Commission (2009), pp 53-58. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed
12 October 2009). The Full Federal Court found that Justice Wilcox had erred in
his judgment in the decision at first instance. Consequently, the Full Federal
Court did not determine whether native title rights existed or not, but sent the
case back to a new judge to determine how the claim should proceed. The parties
agreed to negotiate, and are still in that process. Neither decision of the
Court impacted on the extinguishment provisions of the Native Title Act, which
protect existing interests in the land.
[11] United Nations
International Human Rights Instruments, Core document forming part of the
reports of States parties: Australia
, UN Doc HRI/CORE/AUS/2007 (2007), p 31.
At http://www2.ohchr.org/english/bodies/cescr/docs/cescrwg40/HRI.CORE.AUS.2007.pdf (viewed 16 November 2009).
[12] Wik Peoples v Queensland (1996) 187 CLR
1.
[13] Z Antonios, Acting
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 1998
, Human Rights and Equal Opportunity Commission (1999), p
2. At http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009).
[14] M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996-1997, Human Rights and Equal Opportunity
Commission (1997), p 37. At http://humanrights.gov.au/social_justice/nt_report/index.html#1997 (viewed 17 November 2009). See also Z Antonios, Acting Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 1998,
Human Rights and Equal Opportunity Commission (1999). At http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009).
[15] See Z Antonios, Acting Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 1998, Human Rights and Equal
Opportunity Commission (1999). At http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009).
[16] For more information on the Wik 10 point plan, see the archived Aboriginal and
Torres Strait Islander Commission website, Issues: Land – native title, http://pandora.nla.gov.au/pan/41033/20060106-0000/ATSIC/issues/land/native_title/10_point_WIK_plan.html (viewed 1 September 2009).
[17] See M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996-1997, Human Rights and Equal Opportunity
Commission (1997), at http://humanrights.gov.au/social_justice/nt_report/index.html#1997 (viewed 17 November 2009); Z Antonios, Acting Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 1998, Human
Rights and Equal Opportunity Commission (1999), at http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009); W Jonas, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 1999, Human Rights and Equal
Opportunity Commission (1999), at http://humanrights.gov.au/social_justice/nt_report/index.html#1999 (viewed 17 November 2009).
[18] Commonwealth of Australia, Mabo - The High Court Decision on Native
Title
. Discussion Paper (1993), p
102.
[19] See Z Antonios, Acting
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 1998
, Human Rights and Equal Opportunity Commission (1999), pp
13-14. At http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009). The Commissioner further states, at pp 4-5, that
‘[f]ormal equality asserts that all people should be treated in precisely
the same way as each other: to recognise different rights is inherently unfair
and discriminatory. ... Within this construction, any distinctive right accorded
to native titleholders or native title applicants is seen as inherently racially
discriminatory’. This is compared to substantive equality, which
recognises that different treatment is permitted and may be required to achieve
real fairness in outcome.
[20] United Nations, Core document forming part of the reports of States parties:
Australia
, UN Doc HRI/CORE/AUS/2007 (2007), para 131. At http://www2.ohchr.org/english/bodies/cescr/docs/cescrwg40/HRI.CORE.AUS.2007.pdf (viewed 17 June 2009).
[21] Commonwealth, Parliamentary Debates, Senate, 7 July 1998, pp 5180-5182.
At http://www.aph.gov.au/hansard/senate/dailys/ds070798.pdf (viewed 12 October 2009). See also Z Antonios, Acting Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 1998,
Human Rights and Equal Opportunity Commission (1999), ch 1. At http://humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 17 November 2009).
[22] Criticisms of certain core, structural principles of the legislation were made
in the first Aboriginal and Torres Strait Islander Social Justice
Commissioner’s Native Title Report. See M Dodson, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report: January
– June 1994
, Human Rights and Equal Opportunity Commission
(1995). At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/NATIVE.RTF (viewed 12 October 2009).
[23] The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA)
was the first law of an Australian Government to recognise the Aboriginal system
of land ownership. The ALRA was enacted on the recommendation of the Woodward
Aboriginal Land Rights Commission, which introduced into Australian law the
concept of inalienable freehold title ‘meaning [land] could not be
acquired, sold, mortgaged or disposed of in any way - and title should be held
communally’. The Act allowed Aboriginal people, for the first time, to
claim rights to their land based on traditional occupation. See Northern Land
Council, Land and Sea Rights, http://www.nlc.org.au/html/land_act_wood.html (viewed 12 October 2009).
[24] See Parliamentary Library, Parliament of Australia, Aboriginal Land Rights
(Northern Territory) Amendment Bill 2006
, Bills Digest (2006). At http://www.aph.gov.au/library/pubs/bd/2005-06/06bd158.pdf (viewed 16 July 2009).
[25] M
Brough (Minister for Families, Community Services and Indigenous Affairs), Blueprint for Action in Indigenous Affairs (Address to the National
Institute of Governance: Indigenous Affairs Governance Series, Canberra, 5
December 2006).
[26] See T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity
Commission (2007), ch 2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 12 October 2009).
[27] United Nations International Human Rights Instruments, Core document forming
part of the reports of States parties: Australia
, UN Doc HRI/CORE/AUS/2007
(2007), p 31. At http://www2.ohchr.org/english/bodies/cescr/docs/cescrwg40/HRI.CORE.AUS.2007.pdf (viewed 17 June 2009).
[28] Commonwealth, Parliamentary Debates, House of Representatives, 12 June
2007, pp 91-95 (The Hon Jenny Macklin MP, Shadow Minister for Indigenous
Affairs). At http://www.aph.gov.au/hansard/reps/dailys/dr120607.pdf (viewed 6 September 2009).
[29] Yuendumu Statement, given to the Minister for Indigenous Affairs, Jenny Macklin,
by H Nelson, representing the Yuendumu community, 27 October 2008, available at
Rollback the intervention, Statements, http://rollbacktheintervention.wordpress.com/ (viewed 12 October 2009).
[30] Statement by Warlpiri Delegation from Yuendumu on the occasion of the opening of
Parliament 2009, available at Rollback the intervention, Rollback the
intervention,
http://rollbacktheintervention.wordpress.com/ (viewed 12 October 2009).
[31] The legislation giving effect to the Northern Territory Emergency Response
received Royal Assent on 17 August 2007. It consisted of a suite of legislation.
The main provisions dealing with the Australian Government’s acquisition
of rights, titles and interests in land are contained in Part 4 of the Northern Territory National Emergency Response Act 2007 (Cth) (NTNER
Act).
[32] Northern Territory
Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’:
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse
(2007). At http://www.inquirysaac.nt.gov.au/ (viewed 23 November 2009).
[33] Department of Families,
Housing, Community Services and Indigenous Affairs, About the Northern
Territory Emergency Response,
http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/about_response/overview/Pages/about_nter.aspx (viewed 23 July 2009).
[34] See Wurridjal v the Commonwealth (2009) 237 CLR 309, 333 (French
CJ).
[35] Department of Families,
Housing, Community Services and Indigenous Affairs, About the Northern
Territory Emergency Response,
http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/about_response/overview/Pages/about_nter.aspx (viewed 23 July 2009).
[36] Since
the Native Title Report 2007 was published, the High Court has delivered its
decision in Wurridjal v Commonwealth (2009) 237 CLR 309 (see later in
this Chapter). In the case, the High Court held that s 71 of the ALRA was not
displaced by the intervention legislation.
[37] The intervention
legislation says that the non-extinguishment principle applies to any of the
acts done by or in accordance with the intervention legislation, or any act that
is related. It also says that the future acts provisions of the Native Title Act
do not apply. However, the long-term impact of acts done for the purposes of the
intervention on native title rights and interests is unclear. This is of
particular concern when the rights are effectively extinguished or impaired, a
circumstance which should trigger the compensation provisions of the Native
Title Act. See Northern Territory National Emergency Response Act 2007 (Cth), s 51.
[38] J Macklin
(Minister for Families, Housing, Community Services and Indigenous Affairs), ABC Radio AM (23 July 2009). At http://www.abc.net.au/am/content/2009/s2633912.htm (viewed 23 July 2009).
[39] See
later in this Chapter for the discussion of the High Court’s decision in Wurridjal v Commonwealth (2009) 237 CLR 309, and Chapter 4 of this Report
for further information on land tenure reform.
[40] The intervention
legislation provides for this explicitly. Despite the compulsory five-year lease
of Aboriginal land, an Aboriginal Land Trust may grant a head lease of a
township in accordance with s 19A of the ALRA (under s 37(6) of the NTNER Act).
If this occurs the five-year lease is terminated or varied to the extent of area
covered by the township lease. This takes place at the time the township lease
takes effect.
[41] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167
(The Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 12 October
2009).
[42] Commonwealth, Parliamentary Debates, House of Representatives, 26 February 2009, p 2026
(The Hon Kevin Rudd, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr260209.pdf (viewed 12 October 2009).
[43] A
Boswell, ‘Mixed half-term reform report card’, The Australian
Financial Review
, 5 June 2009, p 42.
[44] C Merritt,
‘McClelland promises clean state for national regulation’, The
Australian
, 5 December 2008. At http://www.theaustralian.com.au/business/legal-affairs/mcclelland-promises-clean-slate/story-e6frg97x-1111118227370 (viewed 16 November 2009).
[45] R
McClelland (Attorney-General), Remarks at the Nyangumarta native title
on-country consent determination hearing
(Remarks delivered at Federal Court
consent determination, Nyiyamarri Purkurl, Western Australia, 11 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_11June2009-RemarksattheNyangumartaNativeTitleOn-CountryConsentDeterminationHearing (viewed 12 October 2009).
[46] Australian Government, Australian Government Discussion Paper (undated).
At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009). Attorney-General, Discussion Paper: Proposed minor
native title amendments
(2008). At http://www.ag.gov.au/www/agd/rwpattach.nsf/PublicbySrc/Native+Title+Amendment+Bill+2009+-+Discussion+paper.DOC/$file/Native+Title+Amendment+Bill+2009+-+Discussion+paper.DOC (viewed 13 October 2009).
[47] The Native Title Amendment Act 2009 (Cth) commenced on 18 September
2009.
[48] R McClelland
(Attorney-General), ABC Radio National (9 April 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Transcripts_2009_SecondQuarter_9April2009-ABCRadioNationalBreakfastwithFranKelly (viewed 17 November 2009).
[49] R
McClelland (Attorney-General), Native Title Consultative Forum (Speech
delivered at the Native Title Consultative Forum, Canberra, 4 December 2008). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FourthQuarter_4December2008-NativeTitleConsultativeForum (viewed 16 November 2009).
[50] R
McClelland (Attorney-General), Australian Institute of Aboriginal and Torres
Strait Islander Studies
(Speech delivered at the 10th Annual
Native Title Conference, Melbourne, 5 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_5June2009-AustralianInstituteofAboriginalandTorresStraitIslanderStudies (viewed 16 November 2009).
[51] National Native Title Tribunal, National Report: Native Title (March
2009), p 2. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Corporate%20publications/National%20Report%20Card%20-%20March%202009.pdf (viewed 12 October 2009).
[52] Evidence to the Senate Legal and Constitutional Affairs Committee, Canberra, 23
February 2009, p 61 (Stephanie Fryer-Smith, Registrar of the National Native
Title Tribunal). At http://www.aph.gov.au/hansard/senate/commttee/S11639.pdf (viewed 12 October 2009). The Registrar said that there were 50 native title
matters on the substantive list. The substantive list is the NNTT’s case
management scheme in which it identifies applications that it thinks will be
resolved through determination, dismissal or discontinuance within the next two
years.
[53] M Rann (Premier of
South Australia), R McClelland (Attorney-General) and J Macklin (Minister for
Families, Housing, Community Services and Indigenous Affairs), ‘Historic
native title determination today’ (Media Release, 30 March 2009). At http://www.ministers.sa.gov.au/news.php?id=4566 (viewed 12 October 2009).
[54] See National Native Title Tribunal, ‘Nyangumarta native title resolved at
80 mile beach’ (Media Release, 11 June 2009). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Nyangumarta_native_title_resolved_at_80_Mile_Beach.aspx (viewed 17 June 2009). See also R McClelland (Attorney-General), Remarks at
the Nyangumarta native title on-country consent determination hearing
(Remarks delivered at Federal Court consent determination, Nyiyamarri Purkurl,
Western Australia, 11 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_11June2009-RemarksattheNyangumartaNativeTitleOn-CountryConsentDeterminationHearing (viewed 16 November 2009).
[55] National Native Title Tribunal, ‘Nyangumarta native title resolved at 80
mile beach’ (Media Release, 11 June 2009). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Nyangumarta_native_title_resolved_at_80_Mile_Beach.aspx (viewed 17 June 2009). See also R McClelland (Attorney-General), Remarks at
the Nyangumarta native title on-country consent determination hearing
(Remarks delivered at Federal Court consent determination, Nyiyamarri Purkurl,
Western Australia, 11 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_11June2009-RemarksattheNyangumartaNativeTitleOn-CountryConsentDeterminationHearing (viewed 16 November 2009).
[56] National Native Title Tribunal, ‘Native title recognized on 23 islands in
Gulf of Carpentaria’ (Media Release, 9 December 2008). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Lardil_determination.aspx (viewed 12 October 2009).
[57] Attorney-General’s Department, Closing the Gap – Funding for the
Native Title System (additional funding and lapsing)
, Budget 2009-10 Fact
Sheet. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Budgets_Budget2009_FundingFortheNativeTitleSystem(AdditionalFundingandLapsing) (viewed 12 October 2009).
[58] Attorney-General’s Department, Closing the Gap – Funding for the
Native Title System (additional funding and lapsing)
, Budget 2009-10 Fact
Sheet. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Budgets_Budget2009_FundingFortheNativeTitleSystem(AdditionalFundingandLapsing) (viewed 12 October 2009).
[59] R
McClelland, Attorney-General, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
27 July 2009.
[60] R McClelland
(Attorney-General), Australian Institute of Aboriginal and Torres Strait
Islander Studies
(Speech delivered at the 10th Annual Native
Title Conference, Melbourne, 5 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_5June2009-AustralianInstituteofAboriginalandTorresStraitIslanderStudies (viewed 16 November 2009).
[61] The Attorney-General estimates that the native title system cost approximately
$120 million in the 2007-08 financial year. See R McClelland (Attorney-General), Launch of the Australian Law Reform Commission's Reform journal on
Native Title and the Reconciliation Action Plan
(Speech delivered at the
launch of the Australian Law Reform Commission’s journal and its
Reconciliation Action Plan, Sydney, 8 April 2009). At http://www.alrc.gov.au/about/rap/AGspeech.html (viewed 12 October 2009).
[62] J
Macklin, Minister for Families, Housing, Community Services and Indigenous
Affairs, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Australian Human Rights Commission, 12 August 2009.
[63] J Macklin, Minister for
Families, Housing, Community Services and Indigenous Affairs, Correspondence to
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 12 August 2009.
[64] P Garrett (Minister for the
Environment, Heritage and the Arts), ‘Over $69 million for new Indigenous
rangers working on country’ (Media Release, 12 May 2009). At http://www.environment.gov.au/minister/garrett/2009/budmr20090512e.html (viewed 12 October 2009).
[65] See further T Calma,
‘Native title in Australia: Good intentions, a failing framework?’
(2009) 93 Reform 6.
[66] Information received in correspondence to me, in response to requests for
information for the preparation of the Native Title Report 2008, including: M
Scrymgour, Minister for Indigenous Policy, Northern Territory Government,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 18 September 2008; Queensland
Government Department of Natural Resources and Water, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 18 September 2008; M Atkinson, Attorney-General,
Government of South Australia, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
18 September 2008; T Kelly, Minister for Lands, New South Wales Government,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 1 September 2008; R Hulls,
Attorney-General, Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008.
[67] National
Native Title Tribunal, National Report: Native Title (March 2009), p 3.
At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Corporate%20publications/National%20Report%20Card%20-%20March%202009.pdf (viewed 12 October 2009).
[68] At
the time of writing, the parties were waiting for Justice Finn to hand down his
decision on the case.
[69] Torres
Strait Regional Authority, Supplementary submission to the Senate Committee
on Legal and Constitutional Affairs inquiry into the Native Title Amendment Bill
2009
(24 April 2009), p 2.
[70] See below for a summary of
these amendments.
[71] See
Commonwealth, Parliamentary Debates, House of Representatives, 19 March
2009, p 3250 (The Hon Robert McClelland MP, Attorney-General). For a summary of
the amendments, see Attorney-General’s Department, Native Title
Amendment Act 2009: Information Sheet
(2009). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Native+Title+Amendment+Act+2009+-+Information+Sheet.DOC/$file/Native+Title+Amendment+Act+2009+-+Information+Sheet.DOC (viewed 12 October 2009).
[72] For a copy of my submissions see http://www.humanrights.gov.au/legal/submissions/sj_submissions/submissions.html (viewed 30 November 2009).
[73] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2008, Australian Human Rights Commission (2009), pp
19-20. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 12 October 2009).
[74] Native Title Act 1993 (Cth), s 214.
[75] See Australian Human Rights
Commission, Submission to the Senate Committee on Legal and
Constitutional Affairs inquiry into the Native Title Amendment Bill 2009
(24
April 2009); Australian Human Rights Commission, Submission to the
Attorney-General’s discussion paper on minor amendments to the Native
Title Act
(19 February 2009). At http://www.humanrights.gov.au/legal/submissions/sj_submissions/submissions.html#nt (viewed 12 October 2009).
[76] Explanatory Memorandum, Federal Justice System Amendment (Efficiency Measures)
Bill (No 1) 2008 (Cth). At http://www.comlaw.gov.au/ComLaw/Legislation/Bills1.nsf/framelodgmentattachments/46A1A36C581ECB47CA2575140020744B (viewed 12 October 2009). At the time of writing, the Bill was still before the
Senate. It had been referred to the Senate Committee on Legal and Constitutional
Affairs in December 2008. The Committee reported in February 2009.
[77] Australian Government, Australian Government Discussion Paper (undated). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009). The working group comprised of Professor Marcia
Langton, Gina Castelain, Chris Cottier, James Fitzgerald, David Ross, Philip
Hunter, Bill Hart, Glen Kelly, Melanie Stutsel and Brian
Wyatt.
[78] Native Title Payments
Working Group, Report (undated). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Working+Group+report+-+final+version.DOC/$file/Working+Group+report+-+final+version.DOC (viewed 12 October 2009).
[79] R
McClelland (Attorney-General) and J Macklin (Minister for Families, Housing,
Community Services and Indigenous Affairs), ‘Native title discussion paper
released’ (Media Release, 8 December 2008). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2008_FourthQuarter_8December2008-NativeTitleDiscussionPaparReleased (viewed 16 November 2009).
[80] See Australian Human Rights Commission, Submission to the Government’s
native title payments discussion paper – Optimising benefits from native
title agreements
(4 March 2009). At
http://www.humanrights.gov.au/legal/submissions/sj_submissions/20090304_ntpayments.html (viewed 12 October 2009).
[81] Native Title Ministers’ Meeting, Communiqué (18 July 2008).
At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2008_ThirdQuarter_18July-Communique-NativeTitleMinistersMeeting (viewed 16 November 2009).
[82] UN Human Rights Committee, Replies to the list of issues (CCPR/C/AUS/Q/5) to
be taken up in connection with the consideration of the Fifth Periodic Report of
the Government of Australia (CCPR/C/AUS/5)
, UN Doc CCPR/C/AUS/Q/5/Add.1 (5 February 2009), para
41.
[83] Australian Labor Party, Indigenous economic development – election 2007 (2007). At http://www.alp.org.au/download/now/indig_econ_dev_statement.pdf (viewed 1 October 2009).
[84] J
Macklin (Minister for Families, Housing, Community Services and Indigenous
Affairs), Beyond Mabo: Native title and closing the gap (Speech delivered
as the 2008 Mabo Lecture, James Cook University, Townsville, 21 May 2008). At http://www.nswbar.asn.au/circulars/macklin.pdf (viewed 12 October 2009).
[85] J
Macklin (Minister for Families, Housing, Community Services and Indigenous
Affairs), Budget: Closing the gap between Indigenous and non-indigenous
Australians
(12 May 2009). At http://www.fahcsia.gov.au/about/publicationsarticles/corp/BudgetPAES/budget09_10/indigenous/Documents/ClosingTheGap/closingthegap.pdf (viewed 13 October 2009).
[86] As at 14 July 2009, there were 63 registered Prescribed Bodies Corporate: L
Bunyan, Department of Families, Housing, Community Services and Indigenous
Affairs, Correspondence to Tom Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Australian Human Rights Commission, 6 August 2009.
[87] These concerns were
outlined in T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2008, Australian Human Rights
Commission (2009), pp 36-42. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 12 October 2009).
[88] M
Mulardy, interviewed by J Weir, ‘Traditional Owner Comment’
(September / October 2008) No 5/2008 Native Title Newsletter 2, p
3.
[89] J Macklin, Minister for
Families, Housing, Community Services and Indigenous Affairs, Correspondence to
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 12 August 2009.
[90] Department of Families,
Housing, Community Services and Indigenous Affairs, Email to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 24 August 2009. I have been informed that whether PBC funding
applications are received directly by the Department or not, they are routed
through the relevant NTRB, which is then requested to provide comments on each
application. Any PBC that wishes to apply for funding direct from the Department
must first seek the Department’s agreement to make an application for
direct funding, explaining why they consider support through their NTRB is not
acceptable. For more information on funding of PBCs and the 2007 changes, see T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008), pp
97-99. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 13 October 2009).
[91] However, PBCs cannot charge fees for their costs of being a party to an inquiry
about whether a future act can occur or not under s 35 of the Native Title Act,
nor for their costs as a party to any court proceeding.
[92] Native Title Act
1993
(Cth), s 60AB(2).
[93] Australian Labor Party, Australian Labor Party National Platform and
Constitution
(2007), ch 13, para 104 (emphasis added).
[94] Explanatory Note,
Aboriginal and Torres Strait Islander Land Amendment Bill 2008 (Qld), p 6. For
further discussion, see Chapter 4 of this
Report.
[95] Native Title
Services Victoria and the Australian Institute of Aboriginal and Torres Strait
Islander Studies, ‘Native Title holders call for national peak body’
(Media Release, 2 June
2009).
[96] New South Wales
Aboriginal Land Council, NSWALC Funding. At http://www.alc.org.au/about/Funding/funding.htm (viewed 19 September 2009).
[97] Department of Families, Housing, Community Services and Indigenous Affairs, Aboriginals Benefit Account (NT only). At http://www.fahcsia.gov.au/sa/indigenous/progserv/money/Pages/aboriginals_benefit_account.aspx (viewed 19 September 2009).
[98] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Human Rights and Equal Opportunity Commission
(2008), ch 6; T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2008, Australian Human Rights
Commission (2009), ch 2.
[99] Under the CATSI Act, Prescribed Bodies Corporate are referred to as Registered
Native Title Bodies Corporate. I will continue to refer to them as PBCs in this
Report.
[100] J Macklin,
Minister for Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, 12 August
2009.
[101] Office of the
Registrar of Aboriginal Corporations, ‘Two QLD native title corporations
placed under special administration’ (Media Release, 24 September 2008).
At http://www.oric.gov.au/Content.aspx?content=publications/mediaReleases/ORICMR0809-09_Two-QLD-native-title.htm&menu=publications&class=publications&selected=Media%20releases (viewed 17 November
2009).
[102] Wurridjal v
Commonwealth
(2009) 237 CLR
309.
[103] See Wurridjal v
Commonwealth
(2009) 237 CLR 309, 335 (French CJ). The challenged provisions
appeared in the Northern Territory National Emergency Response Act 2007 (Cth) (NTNER) and the Families, Community Services and Other Legislation
Amendment (Northern Territory National Emergency Response and Other Measures)
Act 2007
(Cth). I discussed the Northern Territory intervention, the
compulsory acquisition of five-year leases and changes to the permit system in T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Human Rights and Equal Opportunity Commission
(2008), ch 9. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 4 October 2009). Other aspects of the intervention were discussed in T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, Human Rights and Equal Opportunity Commission
(2008), ch 3. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 4 October 2009). Developments in land tenure reform are further
discussed in Chapter 4 of this Report.
[104] Five-year leases over
township land in 64 communities were compulsorily acquired, that is,
involuntarily created by force of law. Freehold title to the land had earlier
been granted to the traditional owners under the Aboriginal Land Rights
(Northern Territory) Act 1976
(Cth) (ALRA). The compulsory leases give the
Commonwealth exclusive possession and quiet enjoyment of the land and allow the
Commonwealth to grant subleases and licences over the land.
[105] A law of the Northern
Territory, the Aboriginal Land Act (NT) (ALA), establishes the
‘permit system’ which provides that people are not allowed on
Aboriginal land without permission from the traditional owners or the Land
Council.
[106] Section 71 of
the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
affirms that Aboriginal people have the right to enter and occupy or use the
land in accordance with Aboriginal tradition.
[107] As I mentioned in the Native Title Report 2007, the legislation under which the Australian
Government acquired the land did not explicitly provide that rent would be paid
in all circumstances. The legislation simply provided for the payment of
‘reasonable’ compensation if the Minister had requested a valuation
of the land from the Valuer-General. See T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2007, Human
Rights and Equal Opportunity Commission (2008), ch 9. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[108] Section 51(xxxi) of the Constitution provides that the ‘Parliament shall,
subject to this Constitution, have power to make laws for the peace, order, and
good government of the Commonwealth with respect to: ...the acquisition of
property on just terms from any State or person for any purpose in respect of
which the Parliament has power to make
laws’.
[109] The relevant
part of section 122 of the Constitution states that the ‘Parliament may
make laws for the government of any territory’.
[110] Regarding question 1,
French CJ, Gummow & Hayne JJ and Kirby J all answered in the affirmative. In
doing so, they overruled Teori Tau v Commonwealth (1969) 119 CLR 564,
applying the safeguard of ‘just terms’ compensation for the
acquisition of property across Australia, to territories as well as states.
Justice Kiefel arrived at the same result but on narrower constitutional
grounds. Regarding question 2, French CJ, Gummow & Hayne JJ, Kiefel J and
Kirby J all answered in the affirmative. Regarding question 3, French CJ, Gummow
& Hayne JJ, Heydon J and Kiefel J all answered in the
affirmative.
[111] (1969) 119
CLR 564.
[112] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 391, 394 (Kirby
J).
[113] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 369 (Gummow and Hayne JJ).
[114] Griffiths v Minister
for Lands, Planning and Environment (Northern Territory)
[2008] HCA
20.
[115] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 406 (Kirby J).
[116] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 411 (Kirby J).
[117] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 413 (Kirby J).
[118] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 425 (Kirby J). Justice Kirby also
said that s 51(xxxi) of the Australian Constitution was inspired by the United
States Constitution, which provides for ‘just compensation’.
However, the drafters of the Australian Constitution deliberately inserted the
words ‘just terms’ rather than ‘just compensation’,
suggesting the Australian phrase should be given a distinct interpretation that
transcended compensation. See Wurridjal v Commonwealth (2009) 237 CLR
309, 425 (Kirby J).
[119] Wurridjal v Commonwealth (2009) 237 CLR 309, 425, 426 (Kirby
J).
[120] For discussion of
this and other aspects of the case, see S Brennan, ‘The Northern Territory
Intervention and Just Terms for the Acquisition of Property: Wurridjal v
Commonwealth
’ (Melbourne University Law Review,
forthcoming).
[121] See S
Brennan, ‘The Northern Territory Intervention and Just Terms for the
Acquisition of Property: Wurridjal v Commonwealth’ (Melbourne
University Law Review
,
forthcoming).
[122] J Macklin
(Minister for Families, Housing, Community Services and Indigenous Affairs),
‘Government finalises five-year lease boundaries in NT Indigenous
communities’ (Media Release, 27 February 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/lease_boundaries_27feb09.htm (viewed 19 October 2009).
[123] J Macklin, Minister for Families, Housing, Community Services and Indigenous
Affairs, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Australian Human Rights Commission, 12 August 2009.
[124] Wurridjal v
Commonwealth
(2009) 237 CLR 309, 426 (Kirby J).
[125] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49. It has also been reported at (2009) 175 FCR 141. For a
case note, see National Native Title Tribunal, Native Title Hot Spots (2009) (Issue 30), pp 17-23.
[126] The High Court refused
special leave to appeal the decision of the Full Federal Court on 14 October
2009. See Cox v FMG Pilbara Pty Ltd [2009] HCATrans 277 (14 October
2009). At http://www.austlii.edu.au/au/other/HCATrans/2009/277.html (viewed 23 October 2009).
[127] WGAC was established following the approved determination of native title made
in Hughes v Western Australia [2007] FCA
365.
[128] FMG Pilbara Pty
Ltd v Cox
[2009] FCAFC 49, para 15.
[129] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 1.
[130]FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 38.
[131] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 28.
[132] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 19.
[133] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, paras 36, 38.
[134] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para
21.
[135] FMG Pilbara Pty
Ltd v Cox
[2009] FCAFC 49, para 29.
[136] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 23.
[137] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 27.
[138] Cox v Western
Australia
[2008] NNTTA 90, also reported at (2008) 219 FLR 72, paras 40, 70.
[139] FMG Pilbara Pty Ltd v
Cox
[2009] FCAFC 49, para 27.
[140] S Burnside, ‘Take it or leave it’: how not to negotiate in good faith (Paper delivered at the 10th Annual Native Title Conference,
Melbourne, 3 June 2009). At http://ntru.aiatsis.gov.au/conf2009/papers/SarahBurnside.pdf (viewed 24 June 2009).
[141] S
Burnside, ‘Take it or leave it’: how not to negotiate in good
faith
(Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 3 June 2009). At http://ntru.aiatsis.gov.au/conf2009/papers/SarahBurnside.pdf (viewed 24 June 2009).
[142] T
Corbett & C O’Faircheallaigh, ‘Unmasking the politics of native
title: the National Native Title Tribunal’s application of the NTA’s
arbitration provisions’ (2006) 33(1) University of Western Australia
Law Review
153, p
161.
[143] Subdivision P of the
Native Title Act provides for a ‘right to negotiate’ which applies
where a government proposes to do particular acts which could affect native
title rights. For the government’s act to be valid, it must give notice of
its intention to do the act, and allow any relevant native title group and the
grantee party (the party which has requested or applied to the government for
the act to be done) to negotiate in good faith with a view to coming to an
agreement about the proposed act. If no agreement is reached, the proponent can
ask the arbitral body (the NNTT) to make a decision on whether the proposed act
can go ahead, or if it can only go ahead on certain conditions. For further
information, see National Native Title Tribunal, Procedures under the right
to negotiate scheme
(2005). At http://www.nntt.gov.au/Future-Acts/Procedures-and-Guidelines/Documents/Procedures%20under%20the%20right%20to%20negotiate.pdf (viewed 22 June 2009).
[144] [2009] NNTTA 49 (27 May 2009). For a case note, see National Native Title
Tribunal, Native Title Hot Spots (2009) (Issue 30), pp
2-16.
[145] Holocene Ltd was
converted to a proprietary company in 2007 and is a wholly owned subsidiary of
Reward Minerals Ltd.
[146] The
Martu People were determined to hold native title in the area on 27 September
2002. See James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.
[147] Western Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu) /
Western Australia / Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras
64–81. The NNTT considered that there would not be a substantial impact on
the ability of the Martu People to physically enjoy their native title rights if
the lease was granted: para
81.
[148] Western Desert
Lands Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia /
Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 82-88. The NNTT
considered that the grant of the mining lease would not detrimentally impact on
the way of life, culture and traditions of the native title party in any
substantial way, subject to its findings relating to Lake Disappointment itself
(discussed later): para
88.
[149] Western Desert
Lands Aboriginal Corporation (Jamukurnu – Yapalikunu) / Western Australia
/ Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 89-94.
[150] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 95-98.
[151] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 99-152. In the NNTT’s
view, the disturbance to the Lake would not be minimal, and the Lake has a high
level of importance to the Martu
People.
[152] Western Desert
Lands Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia /
Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 154-163.
[153] The NNTT confirmed that
‘compensation cannot be seen as an economic benefit. Rather, it is a legal
entitlement to be recompensed for the loss or damage suffered’: Western
Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia
/ Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 164-178.
[154] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 179-183.
[155] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 184-188.
[156] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 37. The entire quote comes from Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124, 165-166.
[157] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), paras 40-42.
[158] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para
156.
[159] Western Desert
Lands Aboriginal Corporation (Jamukurnu – Yapalikunu) / Western Australia
/ Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 212.
[160] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 162.
[161] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 215.
[162] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 163.
[163] Western Desert Lands
Aboriginal Corporation (Jamukurnu – Yapalikunu) / Western Australia /
Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 196.
[164] Western Desert Lands
Aboriginal Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene
Pty Ltd
[2009] NNTTA 49 (27 May 2009), para
178.
[165] T Corbett & C
O’Faircheallaigh, ‘Unmasking the politics of native title: the
National Native Title Tribunal’s application of the NTA’s
arbitration provisions’ (2006) 33(1) University of Western Australia
Law Review
153.
[166] A
Boswell, ‘Native title halts mining lease’, The Australian
Financial Review,
2 June 2009, p 7, quoting R Edel, DLA Philips Fox.
[167] A Boswell, ‘Native
title halts mining lease’, The Australian Financial Review, 2 June
2009, p 7.
[168] Affidavit
evidence of the Martu Elders, quoted in Western Desert Lands Aboriginal
Corporation (Jamukurnu - Yapalikunu) / Western Australia / Holocene Pty Ltd
[2009] NNTTA 49 (27 May 2009), para 155.
[169] Commonwealth, Parliamentary Debates, House of Representatives, 2 December 2008, p 12132
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[170] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), ch
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[171] A copy of the
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[172] J Macklin
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Peoples
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[173] R McClelland (Attorney-General), Remarks in support of the United Nations
Declaration on the Rights of Indigenous Peoples
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[174] The Australian Government, the Indigenous Peoples’ Organisations Network
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the Indigenous Peoples’ Organisations Network of Australia, the Australian
Government and the Australian Human Rights Commission attending the eighth
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[175] Kimberley Land Council, ‘Traditional Owners announce shortlist for gas
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[176] International Covenant on Civil and Political Rights, 1966. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 13 October 2009).
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[178] UN Human Rights Committee, Consideration of Reports Submitted by States
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Rights Committee: Australia
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[179] UN Committee on Economic, Social and Cultural Rights, Consideration of
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[180] UN Committee on Economic, Social and Cultural Rights, Consideration of
Reports Submitted by States Parties under Articles 16 and 17 of the Covenant:
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[181] International Convention on the Elimination of All Forms of Racial
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[182] Request for Urgent Action under the International Convention on the Elimination
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[183] F Victoire Dah, Chairperson of the Committee for the Elimination of Racial
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[184] The Australian Government responded to the Committee on the Elimination of
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[185] R McClelland,
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Islander Social Justice Commissioner, Australian Human Rights Commission, 27
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[186] The Australian
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and the Australian Human Rights Commission, Joint Statement by the Indigenous
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(21 May
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[187] These reports and
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[188] International Labour
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[189] International Labour Organisation Convention No 107, 1957. At http://www.ilo.org/ilolex/english/convdisp1.htm (viewed 1 October 2009)
[190] UN Permanent Forum on Indigenous Issues, A draft guide on the relevant
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[191]UN Permanent Forum
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the United Nations Declaration on the Rights of Indigenous Peoples,
International Labour Organisation Convention No. 169 and International Labour
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[192] United Nations
Declaration on the Rights of Indigenous Peoples
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[193] C Smith (Member of the
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No 1 (2009) Article 42 of the Declaration on the Rights of Indigenous Peoples,
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[194] C Marshall (CEO of Native Title Services Victoria), A cooperative approach
for Broad Mediated Outcomes
(Speech delivered at the Negotiating Native
Title Forum, Melbourne, 19 February 2009). At http://www.ntsv.com.au/document/Negotiating-Native-Title-Forum-Feb-09.pdf (viewed 12 October 2009).
[195] Victorian Department of
Justice, Objectives of the Native Title Settlement Framework, http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Indigenous+Victorians/Native+Title/JUSTICE+-+Objectives+of+the+Native+Title+Settlement+Framework (viewed 12 June 2009).
[196] R
Hulls (Attorney-General of Victoria), AIATSIS Native Title Conference
2009
(Speech delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009). At http://ntru.aiatsis.gov.au/conf2009/papers/TheHon.RobertHulls.pdf (viewed 12 October 2009).
[197] Victorian Traditional Owner Land Justice Group, ‘Native Title Settlement
Framework will address unfinished business for Victoria’s traditional
owner groups’ (Media Release, 4 June 2009). At http://www.landjustice.com.au/document/LJG-Media-release-040609.pdf (viewed 12 October 2009).
[198] Victorian Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009).
[199] Victorian Traditional Owner Land Justice Group, ‘Native Title Settlement
Framework will address unfinished business for Victoria’s traditional
owner groups’ (Media Release, 4 June 2009). At http://www.landjustice.com.au/document/LJG-Media-release-040609.pdf (viewed 12 October 2009).
[200] Victorian Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting L Clarke, Co-Chair.
[201] The following
information on the content of the framework is taken from the Traditional Owner
Land Justice Group’s website: http://www.landjustice.com.au/?t=3 (viewed 9 June 2009); and the Victorian Government’s Report of the
Steering Committee for the development of a Victorian Native Title Settlement
Framework
(2009), at www.justice.vic.gov.au (viewed 10 June
2009).
[202] Victorian
Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting S
Onus.
[203] Victorian
Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting L Clarke, Co-Chair.
[204] Victorian Traditional
Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting A
Mullet.
[205] Victorian
Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting B
Nicholls.
[206] Victorian
Traditional Owner Land Justice Group, Settlement Framework, http://www.landjustice.com.au/?t=3 (viewed 9 June 2009), quoting G Atkinson, Co-Chair.
[207] M Dodson, Transmittal
letter, in Department of Justice, Victoria, Report of the Steering Committee
for the development of a Victorian Native Title Settlement Framework
(2009).
At www.justice.vic.gov.au (viewed 10
June 2009).
[208] M Dodson,
Transmittal letter, in Department of Justice, Victoria, Report of the
Steering Committee for the development of a Victorian Native Title Settlement
Framework
(2009). At www.justice.vic.gov.au (viewed 10 June
2009).
[209] R McClelland
(Attorney-General), Australian Institute of Aboriginal and Torres Strait
Islander Studies
(Speech delivered at the 10th Annual Native
Title Conference, Melbourne, 5 June 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_SecondQuarter_5June2009-AustralianInstituteofAboriginalandTorresStraitIslanderStudies (viewed 16 November 2009).
[210] D Guest, ‘Royalties
battle threatens Kimberley gas deal’, The Australian, 14 April
2009. At http://www.theaustralian.news.com.au/business/story/0,,25330918-36418,00.html (viewed 21 April 2009).

[211] J Macklin (Minister for
Families, Housing, Community Services and Indigenous Affairs), ABC Central
Australia
, 30 July 2009. For further information, see Chapter 4 of this
Report.
[212] C Wallace
(Minister for Natural Resources and Water and Minister Assisting the Premier in
North Queensland), ‘Historic Land Agreement means first National Park on
Aboriginal Land in Queensland’ (Media Release, 10 July 2008). At http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=59121 (viewed 30 October 2009).
[213] A Bligh (Premier of
Queensland), ‘New National Park for Queenslanders’ (Media Release, 6
August 2008). At http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=59590 (viewed 30 October 2009).
[214] For further information, see Chapter 4 of this
Report.
[215] Torres Strait
Regional Authority, ‘ATSILA Act a Blow to Indigenous Economic
Development’ (Media Release, 26 June 2008). At http://www.tsra.gov.au/media-centre/press-releases/2008-press-releases/native-title-atsila-act.aspx (viewed 4 August 2009).
[216] See Australian Human Rights Commission, Submission to the Queensland Minister
for Natural Resources and Water for the proposed Archer Basin Wild River
Declaration, the Lockhart Basin Wild River Declaration and the Stewart Basin
Wild River Declaration
(November 2008). At http://www.humanrights.gov.au/legal/submissions/2008/200811_wild_rivers.html (viewed 12 October 2009).