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Native Title Report 2009: Chapter 2

Native Title Report 2009

Chapter 2: Changing the culture of native title

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2.1 The challenge: decolonising the native title
framework

It is clear that the native title system has not fulfilled the promise of Mabo v Queensland (No 2).[1]

Despite the High Court’s landmark decision, Australian courts,
governments and non-Indigenous people have struggled to accept fully the rights
of Indigenous peoples to their lands, waters and territories. In successive
court decisions, our cultures have been viewed through a non-Indigenous lens,
with our rights separated and eliminated one by one.

The result, as former Federal Court judge Murray Wilcox observed in his
response to the 2009 Mabo Oration, is that for many Aboriginal people
‘native title has become a
mirage’.[2]

The Australian Government has recently laid some of the fundamental building
blocks for ‘resetting’ the relationship between Indigenous peoples
and government. These include:

  • the apology to the Stolen
    Generations[3]
  • amendments to native title legislation and
    policy[4]
  • a commitment to establishing a new national Indigenous representative
    body[5]
  • appointing an independent committee to conduct the National Human Rights
    Consultation[6]
  • confirming Australia’s support for the United Nations Declaration
    on the Rights of Indigenous Peoples
    (Declaration on the Rights of Indigenous
    Peoples)[7]
  • confirming Australia’s commitment to improving its human rights
    standing at the international and domestic
    level[8]
  • hosting a visit by the United Nations Special Rapporteur on the situation of
    human rights and fundamental freedoms of indigenous people
  • a commitment to establishing a National Healing Foundation led by Indigenous
    peoples.[9]

The
Australian Government has identified reforms to the native title system as a
strategic priority[10] and has
recognised the potential for the native title system to contribute to closing
the gap of disadvantage between Indigenous and non-Indigenous
Australians.[11]
I agree that
opportunities to effectively engage in the native title system may contribute
significantly to closing the gap and promoting economic development. However,
that can only occur if Aboriginal and Torres Strait Islander communities have
the capacity to engage in these processes. Further, we must have an honest
conversation about the roles and responsibilities of government and private
industry if we are to generate just and equitable outcomes through native title.

Significant attitudinal shifts will be required to ensure that principle and
good process guide the legal framework and generate real change to the
system.

Despite the positive developments listed above, unfinished business remains.
This includes the social justice package and the Indigenous Economic Development
Strategy. In addition, the Government has not developed a plan of action for the
full implementation of the Declaration on the Rights of Indigenous Peoples.

In this Chapter, I briefly outline principles that should guide a new
approach to native title – one based on collaborative partnerships and
genuine commitments to respecting, protecting and fulfilling the rights of
Aboriginal and Torres Strait Islander peoples.

I further consider the native title system within the context of the broader
laws and policies that impact upon our rights, and argue for a comprehensive
program of reform.

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2.2 We need a level playing field

As a nation, we need to come to a place where we are truly committed to
decolonising the legislative framework and removing the barriers to the
realisation and recognition of the rights of Aboriginal and Torres Strait
Islander peoples. We need to work toward creating a native title system that
allows for the full participation and effective engagement of Indigenous
peoples.

Before we can reach this place, we need to honestly address the way the
system operates in practice.

For example, one of the key elements of the Government’s reform agenda
is to create an environment in which parties are encouraged to negotiate rather
than litigate.
It is frequently considered that agreement-making has the
potential to deliver substantial benefits to Aboriginal and Torres Strait
Islander communities. However, native title agreements have often failed to
deliver on this promise.

Marcia Langton and Odette Mazel note that, despite the introduction of state
and federal legislation relating to mining and Indigenous rights and the
development of standards of corporate social responsibility, many Indigenous
communities have experienced little or no improvement in their social and
economic status. Indigenous communities often achieve a limited range of direct
benefits from engagement and agreements with mining
companies.[12]

During the reporting period, the Government has invited stakeholders to
consider ‘[h]ow to ensure that the benefits arising from agreements are
used to improve traditional owners and Indigenous communities’ economic
status and social well
being’.[13]

The Government has identified that there are a ‘number of assumptions
behind this question’, including that:

  • direct financial contributions resulting from agreements do not necessarily
    translate into substantive benefits for Indigenous communities
  • substantive benefits, such as employment options and community development
    initiatives often deliver benefits to all members of the community, not just the
    traditional owners
  • an equitable approach to distribution is more likely to generate socio
    economic benefits for the whole
    community.[14]

Beneath
these assumptions lie even further questions that we must address if we are to
create a just and equitable native title system, which delivers substantial
benefits to Indigenous communities.

For example, is it enough to simply change legislation or amend policies
without building the capacity of communities or native title groups to access
and engage with the system positively and proactively?

Can we arrive at beneficial agreements when the playing field is not
even?

Undoubtedly, there is a relationship-building element to the negotiation of
agreements. The relationship between companies and native title representatives
has improved since the introduction of the Native Title Act 1993 (Cth)
(Native Title Act).[15] However, it
is important to acknowledge that agreement-making is a formal legal process,
which can result in a contractual relationship. It does not necessarily result
in positive relationships, particularly where the agreement is weighted in
favour of non-Indigenous interests.

Furthermore, not all Indigenous land has the potential for resource
development or infrastructure projects sufficient to generate long-term
intergenerational benefits. If the community is currently living in abject
poverty, an agreement may simply alleviate poverty in the short to medium
term.

If the Government is serious about optimising benefits through
agreement-making, we need to ensure that the playing field is level. Substantive
outcomes that are just and equitable can only be achieved if there are minimum
standards in place to recognise and protect our human rights. I discuss
implementation of these standards in further detail below.

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2.3 Principles to underpin cultural change

The Attorney-General has recognised that:

Real change in native title will only come through adjusting the behaviour
and attitudes of all parties in the native title system and how they engage with
the opportunities native title can
present.[16]
The Attorney-General
has also emphasised the potential for native title to ‘develop positive
and enduring relationships between Indigenous and non-Indigenous
Australians’ and to be ‘a vehicle for the reconciliation we all want
to achieve’.[17] To secure
such outcomes, there needs to be major shifts in the attitudes that have
traditionally been displayed by governments and the corporate sector in their
engagement with Indigenous communities.

(a) Changing the approach of governments

In order to build a new approach to native title, governments must take
several important steps. These include:

  • developing a full understanding, recognition and respect for the rights of
    Indigenous peoples to our culture and our country
  • ensuring that policy development is based on evidence and deals with
    Indigenous disadvantage from a holistic perspective
  • engaging Aboriginal and Torres Strait Islander peoples as major stakeholders
    in the development, implementation and monitoring of policies and programs that
    affect us
  • increasing the cross-cultural competence of bureaucracy to ensure policies
    and programs support the sustainability and self determination of Indigenous
    communities. 

These steps are very broad and apply to all
areas of Indigenous policy including land and resource management, cultural
heritage and native title. 

I consider that these steps must be underpinned by a genuine commitment to
meeting Australia’s human rights obligations.

Previous Social Justice Commissioners and I have consistently stated that
there is an urgent need for government to apply a rights-based approach to the
native title system.

Text Box 2.1: Decolonising the legislative framework through human
rights principles

Major human rights standards that are particularly important to Indigenous
peoples include:

  • non-discrimination[18]
  • equal protection of property interests before the
    law[19]
  • the right to maintain and enjoy a distinct
    culture[20]
  • the right to self-determination, which can include the full, free and
    effective participation in decision-making that affects them, their lands,
    territories and resources[21]
  • the right to determine and develop priorities and strategies for the
    development or use of their lands or territories and other
    resources.[22]

I have commented elsewhere on the contents of these rights and the importance
of their application in a native title context. In particular, I have provided
guidance to the Australian Government about the implementation of the
Declaration on the Rights of Indigenous
Peoples.[23]

However, I would like to specifically highlight the importance of the
principle of free, prior and informed consent (FPIC) to the current discussions
about native title reform.

Text Box 2.2: How is the principle of free, prior and informed consent
relevant to native title?

Indigenous peoples have the right own, use, develop and control their
lands, territories and
resources.[24]

The Declaration on the Rights of Indigenous Peoples affirms that States are
to ‘consult and cooperate in good faith with the Indigenous peoples
concerned through their own representative institutions in order to obtain their
free, prior and informed consent before adopting and implementing legislative or
administrative measures that may affect
them’.[25]

This includes measures that may affect our rights to our lands, territories
and resources, such as resource development projects.

In its 2005 Concluding Observations on Australia, the Committee on the
Elimination of Racial Discrimination recommended that Australia:

refrain from adopting measures that withdraw existing guarantees of
Indigenous rights and that it make every effort to seek the informed consent of
Indigenous peoples before adopting decisions relating to their rights to
land.[26]

The principle of free, prior and informed consent requires that:

  • no coercion or intimidation is used to gain consent
  • consent is sought and freely given well in advance of authorisation of
    development activities
  • full information is provided about the scope and impacts of the proposed
    development activities on their lands, resources and well-being
  • that Indigenous people have the choice to give or withhold consent over
    developments on their
    lands.[27]

Governments at all levels need to change their attitudes towards engaging
with Aboriginal and Torres Strait Islander peoples. In my view, government
departments across all jurisdictions in Australia are not accustomed to
regularly consulting with Aboriginal and Torres Strait Islander peoples. Most of
them are unsure about what constitutes genuine consultation and effective
engagement. We are certainly not at a point where bureaucrats value such
engagement or understand its importance in terms of respect and in terms of
improving the quality of decision making and policy formulation
processes.[28]
The current
Government’s approach to engaging with Indigenous peoples on reforms to
the native title system is a welcome change from the approach of the previous
government. However, I note that the capacity of communities to engage in
consultative processes has been hindered by the short timeframes for responding
to discussion papers and draft legislation regarding native title and associated
areas. There was also a lack of consultation in centres most affected by the
topics addressed by these reforms. As discussed in Chapter 1, Native
Title Representative Bodies/Service Providers and Prescribed Bodies Corporate
face considerable resource constraints.

It is essential that the principle of FPIC be reflected throughout the native
title system. The principle is a higher standard than that currently provided in
the Native Title Act.
The National Native Title Council (NNTC) has argued
that one way of achieving a level playing field in native title is to enshrine
the principle of FPIC in any process for agreement-making. This principle should
be central to all negotiations with mining companies and others in relation to
Indigenous peoples.[29]

In Appendix 3 to this Report, I provide clear guidelines for effective
engagement and consultation processes that promote FPIC. The guidelines also
consider specific issues that require serious consideration when developing
processes for engagement with Aboriginal peoples and Torres Strait Islander
peoples.[30]

The application of these guidelines would help ensure that policies,
legislation and practices concerning native title implement a human rights-based
approach to development.

(b) Building relationships between Indigenous
peoples and governments

The Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people (Special Rapporteur), James Anaya, has emphasised
the importance of partnerships in implementing the rights of indigenous peoples.
Following his visit to Australia in August 2009, he stressed the need to adopt a
holistic approach to the development of Indigenous programs that is

compatible with the objective of the United Nations Declaration of securing
for indigenous peoples, not just social and economic wellbeing, but also the
integrity of indigenous communities and cultures, and their
self-determination.[31]
The
Special Rapporteur further stated:

This approach must involve a real partnership between the Government and the
indigenous peoples of Australia, to move towards a future, as described by Prime
Minister Rudd in his apology to indigenous peoples last year, that is
‘based on mutual respect, mutual resolve and mutual responsibility,’
and that is also fully respectful of the rights of Aboriginal and Torres Strait
Islander peoples to maintain their distinct cultural identities, languages, and
connections with traditional lands, and to be in control of their own destinies
under conditions of
equality.[32]

I agree. To fully protect the rights of Aboriginal and Torres Strait Islander
peoples, governments must work with us to build relationships of trust and
partnership. In order to do this, governments must ensure:

  • the participation of Aboriginal and Torres Strait Islander peoples in
    decision-making that significantly affects them, including through their
    representative organisations
  • that governments are accountable for their progress in closing the gap in
    disadvantage experienced by Aboriginal and Torres Strait Islander peoples
  • that programs and policies respect Aboriginal and Torres Strait Islander
    peoples’ human rights
  • that Aboriginal and Torres Strait Islander peoples’ aspirations to
    economic independence are recognised and their ability to manage their own
    affairs is supported
  • that Aboriginal and Torres Strait Islander peoples’ culture and
    identity are recognised, strengthened and
    maintained.[33]

This
relationship of trust and partnership needs to be developed at all levels of
government, including within local, state and territory governments.

State and territory governments are the primary respondents in the majority
of native title claims. They are also parties to most of the negotiations under
the Native Title Act. Further, the states and territories often work directly
with Aboriginal or Torres Strait Islander communities at the local level to
deliver essential services and basic human rights, and they are responsible for
granting interests in lands, waters and resources to other parties.

States and territories must remember that they not only have responsibilities
to protect non-Indigenous interests that may be affected by native title, but to
protect the rights and interests of Aboriginal and Torres Strait Islander
people.

It is for these reasons that positive partnerships between native title
holders and state and territory governments are integral to developing new
approaches to the settlement of claims and the negotiation of agreements. It is
in the best interests of states and territories to ensure that the native title
system is working effectively.

However, the relationship between Indigenous peoples and the states and
territories should be much broader than just sitting across the negotiation
table. A partnership is required that considers native title holistically, and
incorporates innovative approaches to the settlement of claims through
negotiated outcomes and optimising those outcomes through co-ordinated
efforts.

For example, closer strategic partnerships between the state and territory
agencies and Indigenous communities are necessary to assess and facilitate the
community development, skills and training required to effectively implement
agreements. Initiative, support and forward planning to assess and meet the
capacity needs of communities would help prepare communities to effectively
engage in the agreement-making process and receive the full benefit of
negotiated outcomes.

(c) Corporate social responsibility

To build a just and equitable native title system, a change in attitudes will
also be required in the corporate sector.

The concept of corporate social responsibility (CSR) is generally understood
to mean that corporations have a degree of responsibility not only for the
economic consequences of their activities, but also for the social and
environmental implications.[34]

In 2001, Rhonda Kelly and Ciaran O'Faircheallaigh analysed the policies of
eight major mining companies in relation to the rights and interests of
Indigenous peoples. Kelly and O'Faircheallaigh found that, while most companies
accept the idea of CSR in principle, they vary greatly in what they mean by that
idea and in the extent to which they actually live up to their policies in
practice. Some companies have, or are in the process of developing, policies,
practices and resource allocations in relation to Indigenous peoples which are
consistent with human rights. However, some companies publicly oppose, and / or
work covertly to undermine, legislation and policy designed to protect or
promote Indigenous rights and interests. [35]

In March 2009, an International Expert Group Meeting on Extractive
Industries, Indigenous Peoples’ Rights and Corporate Social Responsibility
considered that while entities participating in extractive
industries[36] have become more
willing to consult with indigenous communities, efforts continue to fall short
of true free, prior, and informed consent. Further, while companies were now
more flexible in terms of benefit-sharing, there was no increased interest in
acknowledging the sovereignty or traditional decision-making of Indigenous
peoples and their rights to their territories or redressing past human rights
violations. Some companies consider benefit-sharing or social programs as
charity, rather a human rights
issue.[37]

The Expert Group recommended that extractive industries corporations:

  • adopt the Declaration on the Rights of Indigenous Peoples as a minimum
    standard and respect the rights that it enshrines, regardless of a host
    government’s acknowledgement of the human rights of indigenous peoples or
    failure to protect these through national law.
  • fully integrate considerations of human rights and environmental standards
    in all areas of their work.
  • recognise the rights of indigenous peoples over their lands as the basis for
    negotiations over proposed extractive industries, as well as the organisation of
    engagement, partnership and sharing of financial benefits. In instances where
    indigenous peoples consent to extractive activities on indigenous land, payments
    or benefit sharing arrangements should be based on annual reviews throughout the
    life of the activity. Incomes from any extractive activity must cover all costs
    associated with closure and restoration and include sufficient funds to provide
    for potential future liabilities.
  • where benefit sharing arrangements are channelled through a foundation or
    other entity, corporations must ensure that these entitlements remain under the
    control of the indigenous people.
  • develop and enforce policies on human rights.
  • set insurance levels and establish insurance funds in agreement with
    indigenous peoples and at a level appropriate for the risks involved. The
    duration of the insurance program must match the duration of any impact of the
    extractive industry activity beyond the term of the project itself.
  • be accountable to indigenous peoples for damages resulting from past
    extractive activities that affected indigenous lands and livelihoods and provide
    compensation and restitution for damages inflicted upon the lands, territories
    and resources of indigenous peoples, and the rehabilitation of degraded
    environments caused by extractive industry projects that did not obtain
    FPIC.
  • submit themselves to the jurisdiction of indigenous courts and judicial
    systems in whose territories they operate.
  • ensure respect for FPIC including full transparency in all aspects of their
    operations and stop dividing communities to obtain FPIC.
  • always regard indigenous communities as having control and ownership of the
    land and territory, regardless of whether these rights are recognised by the
    relevant governments or
    not.[38]

I consider that
these recommendations provide a good foundation for new relationships between
the corporate sector and Indigenous communities. The Australian Government
should also adopt and promote the recommendations through the processes of the
Council of Australian Governments. For example, the recommendations could form
the basis of best practice guidelines for extractive industries.

(d) Encouraging an interest-based approach to
negotiation

To facilitate collaborative partnerships between Indigenous communities,
government and industry, there is a clear need to move away from an adversarial
approach to native title.

The Government has expressed a clear preference for an interest-based
approach to negotiating broader land settlement
agreements.[39]

An interest-based process is a problem-solving process, with the goal of
finding mutually satisfactory outcomes for all
parties.[40]

In relation to native title agreement-making, an interest-based approach to
negotiations would focus on the interests of the parties in order to reach
agreement. Interest-based processes must develop outcomes that meet the
substantive, procedural and emotional needs of all parties. Tangible interests
such as financial compensation or employment and training are most common, while
less tangible interests such as recognition or respect for cultural protocols
are harder to quantify and
articulate.[41]

In a practical sense, this will require parties to:

  • come together as early as possible to understand what each party wants to
    achieve
  • look beyond native title issues – for example, by considering
    opportunities for economic development, such as employment, training, and
    developing skills, businesses and infrastructure in the community
  • consider the non-tangible interests of parties – for example,
    increasing the corporate profile of industry parties, or exploring opportunities
    to strengthen the transfer of knowledge to younger generations through the
    claims and agreement-making process
  • develop strategies to incorporate and implement those
    interests.[42]

I
consider that the adoption of an interest-based approach to negotiation is
crucial to fulfilling the promise of the native title system. We can no longer
adopt adversarial, win / lose positions. Rather, we should seek opportunities to
understand each others’ interests and to forge sustainable, mutually
beneficial relationships.

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2.4 Transforming the policy landscape

In Chapter 3, I consider specific aspects of native title law and policy that
are in need of reform, with the aim of generating further discussion on how we
move towards a just and equitable native title system.

However, native title is part of the wider constitutional, legislative and
policy framework that impacts upon the rights of Aboriginal and Torres Strait
Islander peoples in Australia. We cannot view native title as being distinct
from broader debates about the enjoyment of our human rights. In order to create
a just and equitable native title system, we need to ensure that a firm platform
is in place across Australia to respect, protect and fulfil the human rights of
Aboriginal and Torres Strait Islander peoples.

Our rights to our country are at the core of our physical and mental
wellbeing. And because of this, the protection of our native title and other
land and water rights is essential to other aspects of our lives, such as
health. As discussed in Text Box 2.3, this has been supported by recent
research.

Text Box 2.3: Closing the gap through land rights

Recent research has confirmed what Aboriginal and Torres Strait Islander
peoples have known for millennia – that there is a link between their
physical, mental and cultural health and their role in caring for their
country.[43]

I have said in the past that the land is our mother. It is steeped in our
culture. We have a responsibility to care for it now and for generations to
come. This care, in turn, sustains our lives – spiritually, physically,
socially and culturally - much like the farmer who lives off the land. However,
there is a lack of understanding within government of the importance of
Indigenous peoples’ relationship to country to the broader social and
economic improvement in the lives of Indigenous
people.[44]

The Healthy Country, Health People project, which was
requested by traditional owners of central Arnhem Land, researched various
aspects of the relationship between caring for country and health and wellbeing.

The study found evidence ‘sufficient to support the proof of concept
that investment in ICNRM [Indigenous Natural and Cultural Resource Management]
appears to be an important strategy for the prevention of chronic diseases and
their
complications’.[45]

The researchers found that greater participation in caring for country
activities was ‘associated with more frequent exercise and bush food
consumption and with better health on most clinical outcomes’, for
example, a lower Body Mass Index, less abdominal obesity, less diabetes and
lower blood pressure.[46]

The
researchers concluded that their results ‘suggest careful reconsideration
of conflicting Indigenous affairs policies that are simultaneously discouraging
connections with country and promoting Indigenous natural resource
management’.[47]

An earlier government-initiated evaluation of the Indigenous Protected Area
(IPA) program also found strong correlations between managing IPAs and broader
social and cultural benefits for communities. This study found:

  • 60% of IPA communities report positive outcomes for early childhood
    development from their IPA activities
  • 85% of IPA communities report that IPA activities improve early school
    engagement
  • 74% of IPA communities report that their IPA management activities make a
    positive contribution to the reduction of substance abuse
  • 74% of IPA communities report that their participation in IPA work
    contributes to more functional families by restoring relationships and
    reinforcing family and community structures. [48]

Further research
conducted in the Northern Territory community of Utopia found that outstation
living resulted in positive health outcomes including benefits associated with
physical activity, diet and limited access to alcohol, as well as social
factors, including connectedness to culture, family and land, and opportunities
for self-determination.[49]

These studies provide the evidence base for governments to make policies
that enable and support the ability of Indigenous peoples to manage and
undertake activities on country.[50] These studies also counter the arguments that homelands communities are cultural
museums that prevent health and social gains for Aboriginal
peoples.[51]

It also supports the common cultural belief that land is central to our
wellbeing. Consequently, policy affecting Indigenous peoples cannot be made in a
vacuum.

The phrase ‘caring for country’ can now be based on a
better understanding of what this means to Indigenous peoples. ‘Caring for
country’ is not just the title of a policy, it is our law. 

The crucial link of the connection between land and water and our wellbeing
is something that policy makers are only just starting to grasp.

Current policies that impact upon Aboriginal and Torres Strait Islander
peoples are isolated, disconnected and disjointed. If there is to be real change
in the lives of Aboriginal and Torres Strait Islander people, governments must
work collaboratively and develop policies that deal with Indigenous disadvantage
from a holistic perspective. 

This means that in addition to the key areas for reform discussed in Chapter
3, consideration will also need to be given to associated policies. There is a
need for policy-makers to understand the intersections between native title and
other policy areas.

(a) Improving the governance framework

With regard to maximising the mechanisms available at the domestic level to
develop effective policy and law, the Office of the High Commissioner for Human
Rights highlights four key governance themes:

  • strengthening democratic institutions
  • improving service delivery
  • the rule of law
  • combating corruption.[52]
Text Box 2.4: Good governance and human
rights
[53]

Strengthening democratic institutions

When led by human rights values, good governance reforms of democratic
institutions create avenues for the public to participate in policy-making
either through formal institutions or informal consultations. They also
establish mechanisms for the inclusion of multiple social groups in
decision-making processes, especially locally. Finally, they may encourage civil
society and local communities to formulate and express their positions on issues
of importance to them.

Improving service delivery

In the realm of delivering State services to the public, good governance
reforms advance human rights when they improve the State’s capacity to
fulfil its responsibility to provide public goods which are essential for the
protection of a number of human rights, such as the right to education, health
and food. Reform initiatives may include mechanisms of accountability and
transparency, culturally sensitive policy tools to ensure that services are
accessible and acceptable to all, and paths for public participation in
decision-making.

The rule of law

When it comes to the rule of law, human rights-sensitive good governance
initiatives reform legislation and assist institutions ranging from penal
systems to courts and parliaments to better implement that legislation. Good
governance initiatives may include advocacy for legal reform, public
awareness-raising on the national and international legal framework and
capacity-building or reform of institutions.

Combating corruption

In fighting corruption, good governance efforts rely on principles such as
accountability, transparency and participation to shape anti-corruption
measures. Initiatives may include establishing institutions such as ethics and
review committees, creating mechanisms of information sharing, and monitoring
governments’ use of public funds and implementation of policies.

Transparency and accountability in government decision-making is required to
truly ‘close the gap’ on socio-economic outcomes between Indigenous
and non-Indigenous Australians and to successfully reform the native the system.

In my Social Justice Report 2008, I considered areas where reform is
needed to improve governance and the protection of human rights in Australia,
including:

  • government support for, and implementation of, the Declaration on the Rights
    of Indigenous Peoples
  • constitutional reform to recognise Indigenous peoples in the preamble of the
    Australian Constitution, remove discriminatory constitutional provisions and to
    guarantee equal treatment and non-discrimination
  • the enactment of a national Human Rights Act that includes the protection of
    Indigenous rights
  • the establishment of a national Indigenous representative body and processes
    to ensure the full participation of Indigenous peoples in decision-making that
    affects our interests.
  • the establishment of a framework for negotiations / agreements with
    Indigenous peoples to address the unfinished business of
    reconciliation.[54]

The
Australian Government confirmed its support for the Declaration on the Rights of
Indigenous Peoples during the reporting
period.[55] The next step will be to
work with Aboriginal and Torres Strait Islander people to ensure its
implementation.

Advocacy for constitutional reform, a Human Rights Act and the establishment
of a national Indigenous representative body continued throughout the reporting
period. I consider these three proposals, and further proposals to address the
unfinished business of reconciliation,
below.[56]

(i) Constitutional recognition of the first
peoples

In his famous Redfern Speech, Paul Keating (then the Prime Minister of
Australia) highlighted the importance of recognising the history of Australia
and, in particular, the impact of that history on our country’s first
peoples. He understood that

the starting point might be to recognise that the problem starts with us
non-Aboriginal Australians. It begins, I think, with that act of recognition.
Recognition that it was we who did the dispossessing. We took the traditional
lands and smashed the traditional way of
life.[57]

The Australian Constitution does not acknowledge Aboriginal and Torres Strait
Islander peoples as the first peoples and traditional owners of the land now
known as Australia. In fact, the Constitution makes no reference to Aboriginal
and Torres Strait Islander peoples at all.

On 10 December 2008, the Australian Government launched a national
consultation on human rights protections in Australia. The Government appointed
an independent committee, chaired by Father Frank Brennan, to conduct the
National Human Rights Consultation (the
Consultation).[58]

As identified by the Australian Human Rights Commission (the Commission) in
its submission to the Consultation:

There is enormous symbolic importance in recognising the rights and unique
status of Indigenous peoples in the preamble to the Constitution. It would go
some way towards redressing the historical exclusion of Indigenous peoples from
Australia’s foundational documents and national
identity.[59]
The Commission
recommended that Aboriginal and Torres Strait Islander peoples should be
recognised in the preamble to Australia’s
Constitution.[60]

If we as a nation are serious about real engagement with Aboriginal and
Torres Strait Islander peoples, constitutional recognition is essential.

The Commission further recommended that the Australian Government should
begin a process of constitutional reform to protect the principle of equality
for all people in Australia, including:

  • removing section 25 of the Constitution
  • amending the Constitution to guarantee racial equality and proscribe
    discrimination on the basis of race
  • a comprehensive national inquiry to consider:
    • the exact wording of a constitutional clause to protect the right
      to equality
    • the extent to which specific grounds of protection should be
      included
    • whether the clause should include any possible
      limitation.[61]

Constitutional protection of racial equality would
prevent legislative protections against racial discrimination from being
overridden or suspended by Parliament. This could have an important impact on
the native title system – we have seen before how easily the Racial
Discrimination Act 1975
(Cth) can be suspended and the Native Title Act
amended to our detriment.[62]

(ii) A Human Rights Act for Australia

In its submission to the Consultation, the Commission recommended that the
Australian Parliament should introduce a Human Rights
Act.[63]

A Human Rights Act would be Parliament’s commitment to a democratic
system that provides transparency and accountability in all public
decision-making which might impact on human rights. It could help ensure that
human rights standards, such as those discussed above, are given due
consideration when the Australian Government and federal public authorities make
decisions that affect our rights to our lands, territories and resources.

The model of a Human Rights Act supported by the Commission would:

  • require the Australian Government to consider human rights from the earliest
    stages of the development of law and policy
  • require parliamentary scrutiny of new legislation to ensure that it is
    compatible with human rights
  • require legislation to be interpreted consistently with human rights
  • require Parliament to be notified, and to publicly respond, if a law is
    found to be inconsistent with human rights
  • require public authorities to act in a way that is compatible with human
    rights and to give proper consideration to human rights in decision-making
  • provide for an effective remedy when a public authority breaches human
    rights.[64]

As
discussed in the Social Justice Report
2008
,[65] a Human Rights Act
would also be an important way of formally recognising the rights of Aboriginal
and Torres Strait Islander peoples. In particular, the Commission believes that
a Human Rights Act should include a preamble that specifically recognises the
human rights of Aboriginal and Torres Strait Islander peoples.

The Commission also recommended that special effort should be made to ensure
that Aboriginal and Torres Strait Islander peoples are full and effective
participants in the development of a Human Rights Act. This would provide an
opportunity for us to articulate how our rights should be recognised in a Human
Rights Act.

(iii) A national Indigenous representative body

Since October 2007, I have worked with the Australian Government and an
Indigenous Steering Committee to advance the establishment of a national
Indigenous representative body. I provided a report to the Minister for
Indigenous Affairs on the preferred model for the proposed representative body
in August 2009.[66] The Government
is expected to provide a response to this report in October 2009.

The absence of an effective, credible body in recent years has resulted in
fragmented and uncoordinated policy-making at the national level. Policy has
been developed without genuine engagement with Aboriginal and Torres Strait
Islander peoples.
The creation of a national Indigenous representative body
will provide governments with a national focal point from which they can source
expert advice on a holistic, whole-of-government basis. The proposed model will
provide the ‘meeting space’ where Aboriginal and Torres Strait
Islander peoples and communities, peak bodies and interest groups will be able
to focus on the bigger picture and set a longer term agenda for policy making
and program delivery. It will provide the starting point for discussions and set
the broad directions for policy.[67] The proposed model anticipates that the national Indigenous representative body
will have the ability to access expert advice across a range of issues,
including native title.[68]

(b) Further unfinished business

In addition to reforms to the broader governance structure, governments must
attend to significant unfinished business. They include the social justice
package and the Indigenous Economic Development Strategy.
Reform to these
areas will complement the native title system and contribute to levelling the
playing field.

(i) The social justice package

As I have highlighted in a number of my reports, the Native Title Act was
intended to be just one of three mechanisms to recognise, and provide some
reparation for, the dispossession of Indigenous peoples’ from their lands
and waters. The Act was to be complemented by:

  • a social justice package to address broader issues in the relationship
    between Indigenous and non-Indigenous Australians
  • an Indigenous land fund, which would ensure that those Indigenous peoples
    who could not access native title would still be able to attain some form of
    justice for loss of their lands.

While the Indigenous Land Fund was
established, the social justice package has never been developed.

In preparation for the 2007 federal election, the Australian Labor Party
promised to honour its commitment to implement a package of social justice
measures in response to Mabo (No
2).
[69] The Labor Party
removed reference to the social justice package in its 2009 National
Platform.[70] In my view, a social
justice package is integral to the effective operation of the native title
system and must remain a priority for the Government.

The Aboriginal and Torres Strait Islander
Commission[71] as well as my
predecessors undertook significant amounts of work to compile detailed
recommendations and proposals for a social justice
package.[72] Some of the
recommendations support proposals discussed in this Chapter, including
constitutional recognition of Aboriginal and Torres Strait Islanders peoples,
the protection of cultural integrity and heritage, and increasing the
participation of Aboriginal and Torres Strait Islander people in the Australian
economy.
Unfortunately, these recommendations have yet to be implemented.

I consider that it is time to revisit these recommendations and to consider
the implementation of a comprehensive social justice package to complete the
native title system.

(ii) Indigenous Economic Development
Strategy

Economic development is an important tool in which to gain self determination
and independence, but it should not come at the expense of the collective
identity and responsibilities to your traditions, nor the decline in the health
of your
country.[73]

As discussed in Chapter 1 of this Report, the Australian Government has
committed to the development of an Indigenous Economic Development
Strategy. However, the Government has not released a discussion paper or
draft strategy.[74]

I consider that an Indigenous Economic Development Strategy must be based
upon Indigenous ownership and control of their lands and waters.

Rights to land and water are critical to Indigenous communities being able to
leverage economic outcomes.

The recent amendments to the Native Title Act to allow for broader settlement
packages, discussed in Chapter 1, should help facilitate economic development on
Indigenous lands and assist communities to take advantage of new opportunities,
such as climate change mitigation activities.
However, as I consider in
Chapter 3, further reforms to the native title system are necessary to
facilitate economic development. This includes providing for the recognition of
commercial native title rights. Without the option of the commercial use of
native title rights and interests, the ability to leverage economic development
from the Indigenous estate and native title and to close the gap between
Indigenous and non-Indigenous peoples is severely restricted.

I am also concerned that the development approach adopted by governments is
premised on gaining control over Indigenous communities, rather than building
governance, capacity and promoting self-sustaining and self-governing
communities.[75]

The success of an Indigenous Economic Development Strategy will be maximised
by linking it to other areas of Indigenous policy including land rights regimes,
and emerging climate change and water policy. However, proactive policy
developments must not be compromised by forcing Indigenous peoples to surrender
their native title rights or their access to, or ownership of, their lands,
waters and territories.

^top

2.5 Conclusion

Changing the culture of the native title system will not be an easy task. The
potential for reform will depend on the attitudes and commitment of all
involved.

This Chapter has highlighted the need to ensure that the native title system
is supported by a strong institutional foundation, which is based on human
rights principles and incorporates processes that protect and promote the rights
and interests of Aboriginal and Torres Strait Islanders peoples.

Reform to the native title system requires political will. It will also
require a commitment on the part of governments and the corporate sector to
enter into genuine partnerships with Aboriginal and Torres Strait Islander
communities based on respect for our rights and the principle of FPIC.

We need to encourage collaborative partnerships where Indigenous people,
governments and other stakeholders work together as equal partners to achieve
sustainable outcomes that realise the development aspirations of Indigenous
peoples.

Recommendations

2.1 That the Australian Government ensure that reforms to the native title
system are consistent with the rights affirmed by the Declaration on the Rights
of Indigenous Peoples.

2.2 That the Australian Government adopt and promote the recommendations
of the Expert Meeting on Extractive Industries through the processes of the
Council of Australian Governments. For example, the recommendations could form
the basis of best practice guidelines for extractive industries.

2.3 That the Australian Government work with Aboriginal and Torres Strait
Islander peoples to develop a social justice package that complements the native
title system and significantly contributes to real reconciliation between
Indigenous and non-Indigenous Australians.

^top


[1] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[2] M Wilcox
QC, Response to Oration 2009 (Speech delivered in response to the 2009
Mabo Oration, Brisbane, 5 June 2009). At http://www.adcq.qld.gov.au/ATSI/FromSelfRespect_comments.html (viewed 6 July 2009).
[3] Commonwealth, Parliamentary Debates, House of Representatives, 13
February 2008, p 167 (Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed
4 June 2009). 
[4] See Chapter
1 of this Report for a discussion of developments during the reporting period.
[5]Department of Families,
Housing, Community Services, and Indigenous Affairs, National Indigenous
Representative Body
, Update August 2009 (2009). At http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/NIRB/Pages/default.aspx#1 (viewed 30 October 2009).
[6] See
National Human Rights Consultation, www.humanrightsconsultation.gov.au/ (viewed 24 September 2009).
[7] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007). At http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed
29 May 2009).
[8] Commonwealth, Parliamentary Debates, House of Representatives, 2 December 2008, p 12133
(Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/Hansard/reps/dailys/dr021208.pdf (viewed 31 October 2009).
[9] J
Macklin (Minister for Families, Housing, Community Services and Indigenous
Affairs), ‘National Healing Foundation consultations start on National
Sorry Day’ (Media Release, 26 May 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/jr_m_healingfoundation_26may09.htm
[10] Attorney-General’s Department, Strategic Plan 2009-2010 (2009), p 3. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~AGDStrategicPlan1July2009.rtf/$file/AGDStrategicPlan1July2009.rtf (viewed 12 October 2009).
[11] Attorney-General, Closing the Gap - Funding For the Native Title System
(Additional Funding and Lapsing): Budget 2009-10
, Fact Sheet (2009). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Budgets_Budget2009_FundingFortheNativeTitleSystem(AdditionalFundingandLapsing) (viewed 19 September 2009).
[12] M Langton & O Mazel, ‘Poverty in the Midst of Plenty: Aboriginal
People, the “Resource Curse” and Australia’s Mining
Boom’ (2008) 26(1) Journal of Energy and Natural Resources Law 31,
p 38.
[13] Australian Government, Australian Government Discussion Paper (undated), p 3 (Discussion Paper).
At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009). In order to improve the current framework for
negotiating land agreements with Aboriginal and Torres Strait Islander peoples,
the Attorney-General and the Minister for Indigenous Affairs convened a Native
Title Payments Working Group, made up of experts from the Indigenous community,
mining, academia and the legal profession, to provide advice to the Government
on ‘how to make better use of payments under mining and infrastructure
agreements’. The Government released the Discussion Paper based on the
report of the Working Group. See Australian Government, Attorney-General’s
Department, Native Title Payments Working Group, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlesystemcoordinationandconsultation#payments (viewed 25 June 2009); Native Title Payments Working Group, Native Title
Payments Working Group Report
(undated). At http://www.fahcsia.gov.au/sa/indigenous/progserv/land/Documents/native_title_wg_report/Native_title_working_group_report.pdf (viewed 10 August 2009).
[14] Australian Government, Australian Government Discussion Paper (undated),
p 3 (Discussion Paper). 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).
[15] National Native Title Council, Submission – Native Title Payments
Working Group
(13 February 2009), p
2.
[16] R McClelland,
Attorney-General, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner,
undated.
[17] R McClelland
(Attorney-General), Native Title Consultative Forum (Speech delivered at
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[18] International Convention on the Elimination of All Forms of Racial
Discrimination
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Rights
, 1966, art 26, at http://www2.ohchr.org/english/law/ccpr.htm (viewed 1 November 2009); United Nations Declaration on the Rights of
Indigenous Peoples
, GA Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007),
art 2, at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed
1 November 2009).
[19] International Convention on the Elimination of All Forms of Racial
Discrimination
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Resolution 217A(III), UN Doc A/810 (1948), art 17, at http://www.un.org/en/documents/udhr/ (viewed
1 November 2009); United Nations Declaration on the Rights of Indigenous
Peoples
, GA Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007), art 26, at
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2009).
[20] International
Covenant on Civil and Political Rights
, art 27, at
http://www2.ohchr.org/english/law/ccpr.htm (viewed 17 November 2009); United
Nations Declaration on the Rights of Indigenous Peoples
, GA Resolution
61/295 (Annex), UN Doc A/61/L.67 (2007), art 11, at
http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 17 November
2009).
[21] International
Covenant on Civil and Political Rights
, 1966, art 1, at http://www2.ohchr.org/english/law/ccpr.htm (viewed 1 November 2009); International Covenant on Economic and Social and
Cultural Rights
, 1966, art 1, at http://www2.ohchr.org/english/law/cescr.htm (viewed 1 November 2009); United Nations Declaration on the Rights of
Indigenous Peoples
, GA Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007),
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November 2009).
[22] United
Nations Declaration on the Rights of Indigenous Peoples
, GA Resolution
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[24] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007), art 26. At
http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 17 November
2009).
[25] United Nations
Declaration on the Rights of Indigenous Peoples
, GA Resolution 61/295
(Annex), UN Doc A/61/L.67 (2007), art 19. At
http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 17 November
2009).
[26] UN Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia
, UN Doc
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[27] DESA Intra- Departmental Task Force on Indigenous Issues, Provisional
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[29] National Native Title Council, Submission – Native Title Payments
Working Group
(13 February 2009), p
3.
[30] For examples of how
Indigenous peoples are already applying the principle of FPIC in development
negotiations, see Chapter 1 of this Report. See also Kimberley Land Council,
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[31] United Nations High Commissioner for Human Rights, Statement of the Special
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(27
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[32] United Nations High Commissioner for Human Rights, Statement of the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, as he concludes his visit to Australia
(27
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(21 May 2009).
[34] Australian Human Rights Commission, Corporate Social Responsibility &
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, Fact Sheet (2008). At http://www.humanrights.gov.au/human_rights/corporate_social_responsibility/corporate_social_responsibility.html#1 (viewed 1 October 2009).
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privately held corporations, companies and other entities participating in the
exploration and extraction of natural resources. UN Permanent Forum on
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[39] R
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T Garnett et al, ‘Healthy country, healthy people: policy implications of
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(Speech
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[45] S
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[52] Office of the
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[54] T
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[56] For further information, see T Calma, Aboriginal and Torres Strait Islander
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[58] For further information, see National Human Rights Consultation, www.humanrightsconsultation.gov.au/ (viewed 24 September 2009).
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[61] Australian Human Rights Commission, Submission to the National Human Rights
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[62] See Chapter 1 of this Report for a discussion on the Native Title Amendment
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[63] Australian Human Rights Commission, Submission to the National Human Rights
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2009).
[64] Australian Human
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[65] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), ch
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[66] Australian Human Rights Commission, Our future in our hands: Creating a
sustainable National Representative Body for Aboriginal and Torres Strait
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Report of the Steering Committee for the creation of a new
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[67] Australian Human Rights Commission, Our future in our hands: Creating a
sustainable National Representative Body for Aboriginal and Torres Strait
Islander peoples,
Report of the Steering Committee for the creation of a new
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[68] Australian Human Rights Commission, Our future in our hands: Creating a
sustainable National Representative Body for Aboriginal and Torres Strait
Islander peoples,
Report of the Steering Committee for the creation of a new
National Representative Body (2009). At http://www.humanrights.gov.au/social_justice/repbody/report2009/index.html (viewed 1 November 2009).
[69] Australian Labor Party, National Platform and Constitution (2007),
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[70] Australian Labor
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[71] Aboriginal and Torres Strait Islander Commission, Recognition, Rights and
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[72] M
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(1995), pp 96-135. See also T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2008, Australian Human
Rights Commission (2009), app 3, at http://www.humanrights.gov.au/social_justice/repbody/report2009/index.html (viewed 1 November 2009).
[73] Traditional owner from the Yorta Yorta Nation Aboriginal Corporation, quoted in
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), p 22. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[74] See discussion in Chapter 1 of this
Report.
[75] For example, see
Chapter 4 of this Report concerning reforms to land tenure.