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Native Title Report 2009: Overview

Native Title Report 2009

Report overview: The challenges ahead

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This is my sixth and final Native Title Report as the Aboriginal and
Torres Strait Islander Social Justice Commissioner. This Report covers the
period 1 July 2008 – 30 June 2009.

In this Report, I:

  • review developments in native title law and policy over the reporting
    period
  • consider principles and standards that should underpin cultural change in
    the native title system
  • highlight several aspects of the native title system in need of reform and
    provide options for further discussion
  • provide an update on developments in Indigenous land tenure reform.

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Looking back

It is with great pride, gratitude and a touch of sadness that I present my
last Native Title Report. My time as the Aboriginal and Torres Strait
Islander Social Justice Commissioner has been rewarding and challenging. I feel
privileged to have served my people in this way.

My term has coincided with one of the most tumultuous periods in Indigenous
affairs in recent years.

Just before I took up the position of Social Justice Commissioner, the Howard
Government announced the abolition of the Aboriginal and Torres Strait Islander
Commission (ATSIC). This led to a raft of ‘new arrangements’ and an
absence of national representation for Aboriginal and Torres Strait Islander
peoples.

The dismantling of ATSIC resulted in a major policy vacuum. ATSIC had played
a role domestically and internationally as an advocate of the human rights of
native title holders. After the abolition of ATSIC, the ability of Aboriginal
and Torres Strait Islander peoples to be fully engaged in the development of
native title policy and law was limited.

Much of my early work as Social Justice Commissioner focused on monitoring
the impact of the post-ATSIC new arrangements. I have consistently argued for
greater government accountability and for governments to listen to the voices of
Aboriginal and Torres Strait Islander peoples.

I have also advocated for the active participation of Aboriginal and Torres
Strait Islander peoples in decisions that affect us – especially decisions
about our lands, resources and waters.

In addition, I have called for reforms to native title law and policy that
promote the achievement of the social, economic and cultural development
aspirations of Aboriginal and Torres Strait Islander peoples.

My reports have addressed a range of issues, including:

  • promoting sustainable economic and social development through native
    title
  • ensuring that economic development on Indigenous land respects and upholds
    Australia’s human rights obligations
  • Indigenous peoples and climate change
  • Indigenous peoples and water
  • the protection of Indigenous knowledge
  • changes to Indigenous land tenure, for purposes including home ownership and
    leasing
  • the Northern Territory intervention
  • improving agreement-making processes
  • reforms to the Native Title Act 1993 (Cth) and related policies and
    legislation
  • significant decisions in native title and land rights law.

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Looking forward

The policy landscape seemed to shift with the election of the Rudd
Government. On 13 February 2008, Prime Minister Rudd made a historic and long
overdue National Apology to the Stolen Generations on behalf of the Australian
Parliament.

I consider the National Apology to be a ‘line in the sand that marks
the beginning of a new relationship and era of
respect’.[1]

To truly realise the promise of the Apology, governments across Australia
need to respect the rights of traditional owners and their responsibilities to
their country and their people.

Significant improvements must be made to the native title system if we are to
close the gap between Indigenous and non-Indigenous Australians and to achieve
reconciliation.

As the Victorian Attorney-General humbly stated to a room of traditional
owners:

Just as the dispossession of this land’s first peoples is this
nation’s greatest tragedy; their survival its greatest act of heroism;
reconciliation, in all its forms, is our greatest opportunity for redemption. This is the story that most defines our nation. This, then, is the story
on which we must make good.

Business will only be finished, however, when the legacies of dispossession
and assimilation, of racism and disadvantage, are dismantled on every front. The
possibility of genuine land justice is one such front, as is the capacity to
participate as equal parties to a dispute, and as equal parties to its
resolution.

...

There’s business to be finished that speaks of hope and possibility, of
deliverance and grace, of a time that is long overdue. Let’s get to it,
then - let’s get back to basics and prove that Australia has come of age,
that it is a place that values ‘Spirit of country – land,
water and life’.[2]

These words echo those of Justices Deane and Gaudron in the High
Court’s decision in Mabo v Queensland (No 2) (Mabo)[3]:

The acts and events by which ... dispossession in legal theory was carried
into practical effect constitute the darkest aspect of the history of this
nation. The nation as a whole must remain diminished unless and until there is
an acknowledgment of, and a retreat from, those past
injustices.[4]

In the years since the Mabo decision, the retreat from injustice has
been slow.

There have been some successes – mining companies are sitting at the
table with traditional owners; state governments have made some
‘concessions’; determinations of native title cover 11.9% of the
land mass of Australia and Indigenous Land Use Agreements cover 14.4% of the
land mass, as well as other areas of
sea.[5]

But there remains a long way to go. The pace of a native title claim is slow
– too slow for many of our elders. Changes to the system must be made to
hasten Australia’s retreat from injustice.

During this year, we have witnessed reforms that could prove to be the first
steps in transforming the native title system.

For example, the Victorian Attorney-General announced an impressive
settlement framework.[6] This
framework has the potential to go a long way towards achieving land justice in
Victoria.

Meanwhile, the Australian Government has begun a process of native title
reform. The federal Attorney-General is receptive to suggestions for improving
the native title system.

The Chief Justice of the High Court, Justices of the Federal Court, the
National Native Title Council and Native Title Representative
Bodies[7] are among those who have
developed proposals for change. I warmly encourage them to continue these
essential discussions.

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Contents of the 2009 Report

I am hopeful that this spirit of reform will translate into real and lasting
benefits for Aboriginal and Torres Strait Islander peoples.

I have approached the writing of this year’s Report with this new sense
of hope. However, I am acutely aware that there is much unfinished business to
attend to.

I begin this Report by ‘setting the scene’ and providing an
overview of events that have occurred during the reporting period.

In Chapter 1, I summarise the former Australian Government’s legacy of
native title and land rights policy. I then review developments during the
reporting period, including relevant changes to law and policy, significant
court decisions and developments in international human rights law.

In the next two Chapters, I seek to build upon the new momentum for
change.

In Chapter 2, I outline principles and standards that should guide a new
approach to native title. I also consider that the native title system ought to
be viewed in the context of broader reforms to promote and protect the rights of
Aboriginal and Torres Strait Islander peoples.

In Chapter 3, I focus on several key areas for reform that have attracted
attention during the reporting period. I propose legislative and policy options
for improving the native title system, with the objective of promoting further
discussion and debate.

The final Chapter of this Report serves as a reminder that, even though
governments have come a long way since Mabo, we have a hard road to
travel before the rights of Indigenous peoples can be fully respected in this
country.

In Chapter 4, I provide an update on developments in Indigenous land tenure
reform. I am concerned that these reforms have been focused on enabling
governments to obtain secure tenure, rather than on assisting Indigenous people
to make use of their land. I also set out principles that should be considered
prior to the introduction of land tenure reforms.

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A new beginning

As I observed above, my term as Social Justice Commissioner began just after
the abolition of ATSIC. It ends with the Australian Government announcing its
support for the new National Congress of Australia’s First
Peoples.[8]

To borrow from the United Nations General Assembly, I am firmly convinced
that:

control by indigenous peoples over developments affecting them and their
lands, territories and resources will enable them to maintain and strengthen
their institutions, cultures and traditions, and to promote their development in
accordance with their aspirations and
needs.[9]

In this, my final Native Title Report, I urge governments to listen to
us. Work with us. Respect our voices, our rights, our lands, our resources and
our waters. Only then will this country truly be able to retreat from injustice.

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Recommendations

Recommendations: Chapter 2
  • 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.

Recommendations: Chapter 3
  • 3.1 That the Australian Government adopt measures to improve mechanisms for
    recognising traditional ownership.
  • 3.2 That the Native Title Act be amended to provide for a shift in the
    burden of proof to the respondent once the applicant has met the relevant
    threshold requirements.
  • 3.3 That the Native Title Act provide for presumptions in favour of native
    title claimants, including a presumption of continuity in the acknowledgement
    and observance of traditional law and custom and of the relevant society.
  • 3.4 That the Native Title Act be amended to define ‘traditional’
    more broadly than the meaning given at common law, such as to encompass laws,
    customs and practices that remain identifiable over time.
  • 3.5 That section 223 of the Native Title Act be amended to clarify that
    claimants do not need to establish a physical connection with the relevant land
    or waters.
  • 3.6 That the Native Title Act be amended to empower Courts to disregard an
    interruption or change in the acknowledgement and observance of traditional laws
    and customs where it is in the interests of justice to do so.
  • 3.7 That the Australian Government fund a register of experts to help NTRBs
    and native title parties access qualified, independent and professional advice
    and assistance.
  • 3.8 That the Australian Government consider introducing amendments to
    sections  87 and 87A of the Native Title Act to either remove the
    requirement that the Court must be satisfied that it is
    ‘appropriate’ to make the order sought or to provide greater
    guidance as to when it will be ‘appropriate’ to grant the order.
  • 3.9 That the Australian Government work with state and territory governments
    to encourage more flexible approaches to connection evidence requirements.
  • 3.10 That the Australian Government facilitate native title claimants having
    the earliest possible access to relevant land tenure history information.
  • 3.11 That the Australian, state and territory governments actively support
    the creation of a comprehensive national database of land tenure
    information.
  • 3.12 That the Australian Government consider options to amend the Native
    Title Act to include stricter criteria on who can become a respondent to native
    title proceedings.
  • 3.13 That section 84 of the Native Title Act be amended to require the
    Court to regularly review the party list for all active native title proceedings
    and, where appropriate, to require a party to show cause for its continued
    involvement.
  • 3.14 That the Australian Government review section 213A of the Native
    Title Act and the Attorney-General’s Guidelines on the Provision of
    Financial Assistance by the Attorney-General under the Native Title Act 1993
    to provide greater transparency in the respondent funding process.
  • 3.15 That the Australian Government consider measures to strengthen
    procedural rights and the future acts regime, including by:

    • repealing section 26(3) of the Native Title Act
    • amending section 24MD(2)(c) of the Native Title Act to revert to the
      wording of the original section 23(3)
    • reviewing time limits under the right to negotiate
    • amending section 31 to require parties to have reached a certain stage
      before they may apply for an arbitral body determination
    • shifting the onus of proof onto the proponents of development to show their
      good faith
    • allowing arbitral bodies to impose royalty conditions.
  • 3.16 That section 223 of the Native Title Act be amended to clarify
    that native title can include rights and interests of a commercial nature.
  • 3.17 That the Australian Government explore options, in consultation with
    state and territory governments, Indigenous peoples and other interested
    persons, to enable native title holders to exercise native title rights for a
    commercial purpose.
  • 3.18 That the Australian Government explore alternatives to the current
    approach to extinguishment, such as allowing extinguishment to be disregarded in
    a greater number of circumstances.
  • 3.19 That section 86F of the Native Title Act be amended to clarify
    that an adjournment should ordinarily be granted where an application is made
    jointly by the claimant and the primary respondent unless the interests of
    justice otherwise require, having regard to such factors as:

    • the prospect of a negotiated outcome being reached
    • the resources of the parties
    • the interests of the other parties to the proceeding.
  • 3.20 That the Australian Government:
    • consider options for increasing access to agreements (while respecting
      confidentiality, privacy obligations and the commercial in confidence content of
      agreements)
    • support further research into ‘best practice’ or
      ‘model’ agreements.
    • support further research into best practice negotiating
      processes.
  • 3.21 That, where appropriate and traditional owners agree, the Australian
    Government promote a regional approach to agreement-making.
  • 3.22 That the Australian Government work with native title parties to
    identify and develop criteria to guide the evaluation and monitoring of
    agreements.
  • 3.23 That the Australian Government ensure that NTRBs are sufficiently
    resourced to access expert advice.
  • 3.24 That the Australian Government provide further support to initiatives
    to provide training and development opportunities for experts involved in the
    native title system.

Recommendations: Chapter 4
  • 4.1 That the Australian Government amend the Northern Territory National
    Emergency Response Act 2007
    (Cth) to end the compulsory five-year leases,
    and instead commit to obtaining the free, prior and informed consent of
    traditional owners to voluntary lease arrangements.
  • 4.2 That the statutory rights provisions, set out in Part IIB of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), be
    removed.
  • 4.3 That the Australian Government meet with the Aboriginal land councils to
    discuss other ways of introducing broad scale leasing to communities on
    Aboriginal land in the Northern Territory, which do not require communities to
    hand over decision-making to a government entity.

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[1] T Calma (Aboriginal and Torres
Strait Islander Social Justice Commissioner), Essentials for Social Justice:
The Future
(Speech delivered at the University of South Australia, Adelaide,
12 November 2008). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20081112_future.html (viewed 26 November 2009).
[2] 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 26 November 2009).
[3] Mabo v Queensland (No 2) (1992) 175 CLR
1.
[4] Mabo v Queensland (No 2) (1992) 175 CLR 1, 109 (Deane and Gaudron JJ).
[5] National Native Title
Tribunal, Annual Report 2008 – 2009 (2009), p 23. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20Report%202008-2009.pdf (viewed 26 November 2009).
[6] See
Chapter 1 of this Report for a review of developments in
Victoria.
[7] For ease of
reference, I will use the term ‘NTRB’ throughout this Report to
include both Native Title Representative Bodies and Native Title Service
Providers where applicable. NTRBs are bodies recognised by the Minister to
perform all the functions listed in the Native Title Act 1993 (Cth), pt
11, div 3. Native Title Service Providers are bodies that are funded by
government to perform some or all of the functions of a representative body: see Native Title Act 1993 (Cth), s
203FE.
[8] J Macklin (Minister for
Families, Housing, Community Services and Indigenous Affairs), ‘Australian
Government response to “Our Future in Our Hands”’ (Media
Release, 22 November 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/new_rep_body_22nov2009.htm (viewed 26 November 2009). See also Australian Human Rights Commission,
‘New National Congress of Australia's First Peoples announced’
(Media Release, 22 November 2009). At http://www.humanrights.gov.au/about/media/media_releases/2009/116_09.html (viewed 26 November 2009).
[9] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007), preambular para 10. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 23 November 2009).