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Native Title Report 2010: Chapter 1: Working together in ‘a spirit of partnership and mutual respect’: My native title priorities

Native Title Report 2010

Chapter 1: Working together in ‘a spirit of
partnership and mutual respect’: My native title priorities

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1.1 Introduction

In many ways, Australia has come a long way since the High Court first
recognised native title in Mabo (No
2)
.[1]

As at 30 June 2010, registered determinations of native title covered 12.2%
of the land mass of Australia.[2]

Seventy-two Prescribed Bodies Corporate (PBCs) have been registered as
Registered Native Title Bodies Corporate to either hold native title rights on
trust for, or to act as the agent of, native title
holders.[3]

In addition, a milestone was reached when the National Native Title Tribunal
(NNTT) registered the 400th Indigenous Land Use Agreement (ILUA) in
November 2009.[4]

Behind these statistics, there are many stories of resilience, recognition
and triumph. For some Aboriginal and Torres Strait Islander peoples, their
engagement in the native title system has led to a long-awaited recognition of
their rights. This recognition may further the ability of Aboriginal and Torres
Strait Islander peoples to achieve their social, cultural and economic
aspirations.

However, this is not always the case. In the first Native Title
Report
, Aboriginal and Torres Strait Islander Social Justice Commissioner
Mick Dodson commented that:

Indigenous Australians hold very modest hopes for the capacity of the Native Title Act to deliver justice through the protection of our titles.
The likelihood is that our aspirations will be confined to very limited
horizons.[5]

Unfortunately, this prediction has been borne out for too many Aboriginal and
Torres Strait Islander peoples. As the CEO of one Native Title Representative
Body (NTRB) recently commented, ‘we have seen the evidentiary bar raised
and the goal posts constantly change. We have seen the landscape move from
cautious hope to bleak
despair’.[6]

On many levels — legally, financially and culturally — the native
title system is skewed in favour of non-Indigenous interests. Traditional Owners
must surmount significant evidential barriers to prove their rights. And once a
determination is made or an agreement is reached, inadequate resources may
hinder the ability of Traditional Owners to effectively enjoy their rights.

Eighteen years after the Mabo (No 2) decision, I believe it is time to
ask — where should we go from here? How can we move towards a reconciled
Australia in which our native title rights are protected and respected?

I have given these questions significant thought during the first months of
my term as Aboriginal and Torres Strait Islander Social Justice Commissioner. As
I explained in the Introduction to this Report, I have visited Aboriginal and
Torres Strait Islander communities and organisations across Australia in an
effort to understand the issues that they face, and the solutions that they have
developed.

I have also attended sessions of international human rights mechanisms to
better understand how international engagement can assist our efforts to ensure
that Australia honours its commitments to respect, protect and fulfil our
rights.

These activities have helped me to identify an overarching framework to guide
me in my work as Social Justice Commissioner. In Chapter 1 of the Social
Justice Report 2010
, I explain in detail my priorities for moving
towards a reconciled Australia. I have included a summary of these priorities in
Text Box 1.1.

Text Box 1.1: Priorities of the Social Justice Commissioner,
2010–2015

  1. To advance the full implementation of the United Nations Declaration on
    the Rights of Indigenous
    Peoples
    [7] in
    Australia.
  2. To promote the development of stronger and deeper relationships:
    • between Aboriginal and Torres Strait Islander peoples and the broader
      Australian community
    • between Aboriginal and Torres Strait Islander peoples and governments
    • within Aboriginal and Torres Strait Islander
      communities

 

In this Chapter, I build upon this framework in the context of our rights to
our lands, territories and resources.

I first consider the relevance of the United Nations Declaration on the
Rights of Indigenous Peoples
(Declaration)[8] to the native
title system, and discuss how the Declaration will inform my work relating to
our rights to our lands, territories and resources.

I then explain the four broad themes in native title and land rights that I
will focus on during my term. These themes are:

  • building an understanding of, and respect for, our rights to our lands,
    territories and resources throughout Australia

  • creating a just and fair native title system through law and policy reform

  • promoting effective engagement between governments and Aboriginal and Torres
    Strait Islander peoples

  • enhancing our capacity to realise our social, cultural and economic
    development aspirations.

In articulating these themes, I do not
seek to confine the scope of my monitoring and reporting role. The importance of
remaining flexible in such a fast-moving policy environment cannot be
overstated. Rather, the objective of this Chapter is to signal my intention to
work with governments, with Aboriginal and Torres Strait Islander peoples and
their representatives, and the wider Australian community to develop lasting
solutions to the issues that have long plagued the native title system.

1.2 My overarching priority: Advancing the
implementation of the Declaration

The United Nations General Assembly adopted the Declaration on
13 September 2007. As the United Nations High Commissioner for Human
Rights observes, the Declaration is ‘the United Nations’ key tool in
advancing the rights of indigenous peoples, and support for this landmark
instrument is widening’.[9]

Under the Howard Government, Australia was one of only four States to vote
against the Declaration in the General
Assembly.[10] On
3 April 2009, the Rudd Government reversed Australia’s position
and formally supported the Declaration.

By supporting the Declaration, Australia joined ‘the international
community to affirm the aspirations of all Indigenous
peoples’.[11] As stated by the
Minister for Families, Housing, Community Services and Indigenous Affairs
(Minister for Indigenous Affairs), Australia had taken ‘another important
step in re-setting the relationship between Indigenous and non-Indigenous
Australians and moving forward towards a new
future’.[12]

Well over a year has passed since the Minister for Indigenous Affairs
delivered Australia’s statement of support for the Declaration. It is now
time for the Australian Government to take the next steps towards implementing
the Declaration. This should involve a process to align all laws and policies,
including those laws and policies that affect our rights to our lands,
territories and resources, with international human rights standards. Only then
will we be truly able to rebuild our relationships with the Government.

(a) What does the Declaration say about our rights to
our lands, territories and resources?

Our lands, territories and resources are essential to our survival, dignity
and wellbeing. Rights to country form an integral part of our identities and
cultures. Further, access to traditional lands can act as a determinant of
health status, particularly where that land is culturally significant and
provides sources of food, water and shelter. While more research in this area is
needed, one recent study concluded that ‘[g]reater Indigenous
participation in caring for country activities is associated with significantly
better health’.[13]

It is therefore fitting that our rights to our lands, territories and
resources feature prominently in the Declaration.

Among other things, the Declaration affirms that we have rights to the lands,
territories and resources that we have traditionally owned, occupied or
otherwise used or acquired. For example, we have the right to:

  • maintain and strengthen our spiritual relationship with our lands,
    territories and resources
  • control, own, develop and use our lands, territories and resources
  • redress for our lands, territories and resources which have been
    confiscated, taken, occupied, used or damaged without our free, prior and
    informed consent.

As set out in Text Box 1.2, rights to our lands,
territories and resources, and to participate in decision-making regarding our
lands, territories and resources, form a fundamental part of the Declaration.

Text Box 1.2: Our rights to our lands, territories and resources

United Nations Declaration on the Rights of Indigenous
Peoples

Article 3

Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have
the right to autonomy or self-government in matters relating to their internal
and local affairs, as well as ways and means for financing their autonomous
functions.

Article 10

Indigenous peoples shall not be forcibly removed from their lands or
territories. No relocation shall take place without the free, prior and informed
consent of the indigenous peoples concerned and after agreement on just and fair
compensation and, where possible, with the option of return.

Article 11

Indigenous peoples have the right to practise and revitalize their cultural
traditions and customs. This includes the right to maintain, protect and develop
the past, present and future manifestations of their cultures, such as
archaeological and historical sites, artefacts, designs, ceremonies,
technologies and visual and performing arts and literature.

States shall provide redress through effective mechanisms, which may include
restitution, developed in conjunction with indigenous peoples, with respect to
their cultural, intellectual, religious and spiritual property taken without
their free, prior and informed consent or in violation of their laws, traditions
and customs.

Article 12

Indigenous peoples have the right to manifest, practise, develop and teach
their spiritual and religious traditions, customs and ceremonies; the right to
maintain, protect, and have access in privacy to their religious and cultural
sites; the right to the use and control of their ceremonial objects; and the
right to the repatriation of their human remains.

States shall seek to enable the access and/or repatriation of ceremonial
objects and human remains in their possession through fair, transparent and
effective mechanisms developed in conjunction with indigenous peoples
concerned.

Article 18

Indigenous peoples have the right to participate in decision-making in
matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions.

Article 19

States shall 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.

Article 23

Indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining
health, housing and other economic and social programmes affecting them and, as
far as possible, to administer such programmes through their own
institutions.

Article 25

Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual relationship with their traditionally owned or otherwise
occupied and used lands, territories, waters and coastal seas and other
resources and to uphold their responsibilities to future generations in this
regard.

Article 26

  1. Indigenous peoples have the right to the lands, territories and resources
    which they have traditionally owned, occupied or otherwise used or
    acquired.
  2. Indigenous peoples have the right to own, use, develop and control the
    lands, territories and resources that they possess by reason of traditional
    ownership or other traditional occupation or use, as well as those which they
    have otherwise acquired.
  3. States shall give legal recognition and protection to these lands,
    territories and resources. Such recognition shall be conducted with due respect
    to the customs, traditions and land tenure systems of the indigenous peoples
    concerned.

Article 27

States shall establish and implement, in conjunction with indigenous
peoples concerned, a fair, independent, impartial, open and transparent process,
giving due recognition to indigenous peoples’ laws, traditions, customs
and land tenure systems, to recognize and adjudicate the rights of indigenous
peoples pertaining to their lands, territories and resources, including those
which were traditionally owned or otherwise occupied or used. Indigenous peoples
shall have the right to participate in this process.

Article 28

  1. Indigenous peoples have the right to redress, by means that can include
    restitution or, when this is not possible, just, fair and equitable
    compensation, for the lands, territories and resources which they have
    traditionally owned or otherwise occupied or used, and which have been
    confiscated, taken, occupied, used or damaged without their free, prior and
    informed consent.
  2. Unless otherwise freely agreed upon by the peoples concerned, compensation
    shall take the form of lands, territories and resources equal in quality, size
    and legal status or of monetary compensation or other appropriate
    redress.

Article 29

  1. Indigenous peoples have the right to the conservation and protection of the
    environment and the productive capacity of their lands or territories and
    resources. States shall establish and implement assistance programmes for
    indigenous peoples for such conservation and protection, without
    discrimination.
  2. States shall take effective measures to ensure that no storage or disposal
    of hazardous materials shall take place in the lands or territories of
    indigenous peoples without their free, prior and informed consent.
  3. States shall also take effective measures to ensure, as needed, that
    programmes for monitoring, maintaining and restoring the health of indigenous
    peoples, as developed and implemented by the peoples affected by such materials,
    are duly implemented.

Article 30

  1. Military activities shall not take place in the lands or territories of
    indigenous peoples, unless justified by a relevant public interest or otherwise
    freely agreed with or requested by the indigenous peoples concerned.
  2. States shall undertake effective consultations with the indigenous peoples
    concerned, through appropriate procedures and in particular through their
    representative institutions, prior to using their lands or territories for
    military activities.

Article 31

  1. Indigenous peoples have the right to maintain, control, protect and develop
    their cultural heritage, traditional knowledge and traditional cultural
    expressions, as well as the manifestations of their sciences, technologies and
    cultures, including human and genetic resources, seeds, medicines, knowledge of
    the properties of fauna and flora, oral traditions, literatures, designs, sports
    and traditional games and visual and performing arts. They also have the right
    to maintain, control, protect and develop their intellectual property over such
    cultural heritage, traditional knowledge, and traditional cultural
    expressions.
  2. In conjunction with indigenous peoples, States shall take effective measures
    to recognize and protect the exercise of these rights.

Article
32

  1. Indigenous peoples have the right to determine and develop priorities and
    strategies for the development or use of their lands or territories and other
    resources.
  2. States shall consult and cooperate in good faith with the indigenous peoples
    concerned through their own representative institutions in order to obtain their
    free and informed consent prior to the approval of any project affecting their
    lands or territories and other resources, particularly in connection with the
    development, utilization or exploitation of mineral, water or other
    resources.
  3. States shall provide effective mechanisms for just and fair redress for any
    such activities, and appropriate measures shall be taken to mitigate adverse
    environmental, economic, social, cultural or spiritual
    impact.

Article 43

The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world.

 

(b) How will the Declaration inform my approach to
the
Native Title Report?

As a party to seven of the major human rights
treaties,[14] Australia has made a
commitment to the international community to respect, protect and fulfil our
human rights in Australian law and
practice.[15]

The Declaration affirms the ‘minimum standards for the survival,
dignity and well-being of the indigenous peoples of the
world’.[16] In doing so, it
elaborates the rights set out in human rights instruments, including the
treaties to which Australia is a party. In many ways, the Declaration also
reflects customary international
law.[17]

Therefore, the Declaration can and should be used to inform our understanding
of how existing, universal human rights apply to the situations faced by
Indigenous peoples worldwide.[18] It
is not simply an ‘aspirational’ document.

Given the widespread international support for the Declaration, it is
appropriate that the Declaration be used as the yardstick against which the
actions of the Australian Government are assessed.

As Social Justice Commissioner, I consider that my overarching priority is to
advance the implementation of the Declaration. Accordingly, I intend to be
guided by the Declaration in the performance of my statutory functions. This
includes my responsibility to report annually on the operation of the Native
Title Act 1993
(Cth) (Native Title Act) and the effect that it has on the
exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander
peoples.[19]

In my Native Title Reports, I will recommend action that the
Australian Government can take to ensure that our rights, as affirmed by the
Declaration, are fully respected in laws and policies that affect our lands,
territories and resources. I will also monitor and report on the
Government’s progress in implementing these recommendations.

(c) How can the Australian Government better engage
with the
Native Title Report?

The Declaration was proclaimed by the General Assembly ‘as a standard
of achievement to be pursued in a spirit of partnership and mutual
respect’.[20] I therefore
encourage the Australian Government to engage in public dialogue regarding the
recommendations contained in the Native Title Report and the Social
Justice Report
.

The Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people (Special Rapporteur) has recommended that the
reports of the Social Justice Commissioner ‘should be given greater
attention in government administration to promote a higher level of
accountability and sensitivity to human rights
commitments’.[21] There are
many ways that this could be achieved.

For example, I consider that the Native Title Act should be amended to
require the Attorney-General to table the annual Native Title Report in
Parliament. This obligation already exists with respect to the annual Social
Justice Report
.[22] I
acknowledge, and applaud, the decisions of successive Attorneys-General to table
the Native Title Report along with the Social Justice Report. I
encourage the Australian Government to pursue amendments to the Native Title Act
to formalise this arrangement.

Secondly, I consider that the Australian Government should be required to
provide a formal response to my reports.

In its 2003 inquiry into progress towards reconciliation, the Senate Legal
and Constitutional References Committee recommended ‘that the Government
should be required by statute to respond to the reports of the Aboriginal and
Torres Strait Islander Social Justice
Commissioner’.[23]

To promote transparency and accountability, I believe that the
Attorney-General should be required by legislation to table a response to the Social Justice Report and the Native Title Report in Parliament
within a set timeframe. This response should indicate how the Australian
Government intends to address the recommendations made in these reports.

As Social Justice Commissioner, I:

  • will be guided by the Declaration in the performance of my statutory
    functions regarding the native title system, including in the preparation of my
    annual Native Title Report
  • recommend that the Australian Government introduce legislation into
    Parliament to require the Attorney-General to table the annual Native Title
    Report
  • recommend that the Australian Government introduce legislation to require
    the Attorney-General to provide a formal response to the annual Native Title
    Report
    and the annual Social Justice Report
  • will monitor and report on the Australian Government’s progress in
    implementing the recommendations contained in the annual Native Title Report and the annual Social Justice Report.

 

1.3 Building an understanding of, and respect for,
our rights to our lands, territories and resources

I believe that a real understanding of what native title means to us as
peoples, and the impact of the native title system on our human rights, is still
missing from the nation’s consciousness.

It is questionable whether the wider Australian community has truly embraced
our rights to our lands, territories and resources. During my consultations for
the Native Title Report 2010, the South Australian Native Title Services
commented that:

[T]here appears to be a general public misconception that the resolution of
native title will result in un-fairness for non-Indigenous stakeholders. A
consequence of this perception is a general lack of support for native
title.[24]

I believe that governments and the corporate sector have a responsibility to
work with us to address such misconceptions.

(a) Understanding our rights: governments

States are to promote respect for, and the full application, of the
provisions of the Declaration.[25] This includes our rights to our lands, territories and resources.

If the Australian Government is genuine about its commitment to
‘reset’ its relationship with us, it needs to start by developing a
better understanding of our rights.

There are encouraging signs that governments are slowly beginning to
appreciate the importance of our rights to our lands, territories and resources
to our peoples. In her statement in support of the Declaration, the Minister for
Indigenous Affairs acknowledged ‘the desire, both past and present, of
Indigenous peoples to maintain and strengthen their distinctive spiritual
relationship with land and waters’. [26]

Further, the Minister understood that ‘[t]he ownership and management
of land gives Indigenous Australians the capacity to forge new partnerships and
pursue economic
development’.[27]

I am also pleased that the federal Opposition has begun to refer to the
standards affirmed by the Declaration in matters relating to our lands,
territories and resources.[28]

Despite these statements, there is still a great deal of misunderstanding
among governments about the importance of our rights. The links between the
enjoyment of our rights and our well-being as peoples is still not fully
appreciated in law and policy-making processes. Without this understanding,
unnecessary and unjustifiable incursions into our rights will continue.

For instance, native title is often perceived merely as a hurdle that needs
to be overcome in order to allow development proposals to proceed. As the
Carpentaria Land Council Aboriginal Corporation has observed, ‘government
agencies often seem to view native title issues as simply a box to tick in the
development process. Unfortunately, it is also often left as the last box to
tick’.[29]

Further, governments sometimes perceive native title to be a barrier to the
social and economic development of our communities. For example, the Australian
Government reports that it has consistently received advice from state
governments that native title is delaying their ability to provide housing and
infrastructure.[30]

It is questionable whether there is any evidence to support these
assertions.[31] However, the
Australian Government responded to the concerns of the states by proposing a new
future act process to facilitate the construction of public housing and
infrastructure. I discuss this further in Chapters 2 and 3.

Human rights are universal, indivisible, interdependent and
interrelated.[32] It is incumbent on
the Australian Government to take steps to progressively realise our right to
adequate housing, while also respecting our rights to self-determination and to
our lands, territories and resources. This could be achieved by improving
agreement-making processes, rather than by eroding our rights through a new
future act process.

This perception of native title as simply a ‘box to tick’, or
worse, as a barrier to our own well-being, does not do justice to the central
importance of our lands, territories and resources to our cultures and peoples.
There is clearly a need for governments to develop a deeper understanding of our
rights.

(b) Understanding our rights: the corporate sector

There is also a need for greater understanding about our rights among the
corporate sector, including those participating in the exploration and
extraction of natural resources.

As the Special Rapporteur has said, the majority of Indigenous peoples and
communities are not opposed to corporate activity in itself, or to the potential
benefits of such activity for their own economic and social development.
However, Indigenous peoples are opposed to

development which is carried out without respect for their basic rights,
which brings with it only adverse impacts and which does not result in any
visible benefits for their
communities.[33]

I believe that there is a need to promote an increased awareness of human
rights among the corporate sector.

Corporations have a degree of responsibility not only for the economic
consequences of their activities, but also for the social and environmental
implications of those
activities.[34] Corporations also
have a responsibility to respect human
rights.[35] As the Special
Rapporteur outlines, ‘companies have, at the very least, the duty to
comply with international standards relating to the human rights of indigenous
peoples’.[36] In order to do
this, corporations need to understand our rights.

Certainly, there are some good examples of resource companies taking action
to understand our cultures, laws and rights. The process leading to the Argyle
Diamond Mine Participation Agreement is a well-known example of
relationship-building between a resource company and Traditional
Owners.[37] We need to ensure such
an approach becomes commonplace.

 

As Social Justice Commissioner, I will engage with governments, the
corporate sector and the broader Australian community to develop a better
understanding of, and respect for, our rights to our lands, territories and
resources.

 

1.4 Creating a just and fair native title system

The Declaration provides that States are to establish and implement ‘a
fair, independent, impartial, open and transparent process ... to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands,
territories and
resources’.[38]

In the preamble to the Native Title Act, the ‘people of
Australia’ expressed their intention ‘to rectify the consequences of
past injustices’.[39] However,
it is difficult to contend that the Native Title Act currently creates a
‘fair’ process for recognising and adjudicating our rights.

The Minister for Indigenous Affairs has stated that ‘Australia’s
laws concerning land rights and native title are not altered by our support of
the Declaration’.[40] While
this is certainly the case, Australia’s support for the Declaration
invites a reappraisal of the Native Title Act.

(a) A failure to take action

Over the years, Aboriginal and Torres Strait Islander peoples have
continually drawn attention to the discriminatory, costly and adversarial
aspects of the Native Title Act. For instance, the National Native Title Council
(NNTC) recently submitted to the Committee on the Elimination of Racial
Discrimination (CERD) that ‘the current expenditure of time and resources
in prosecuting a claim raises serious questions about the actual benefits of the
system to Indigenous
people’.[41]

Numerous international human rights mechanisms have recommended that
Australia take action to ensure the full enjoyment by Aboriginal and Torres
Strait Islander peoples of their rights to their lands, territories and
resources.[42] Most recently, in
August 2010 CERD expressed regret regarding

the persisting high standards of proof required for recognition of the
relationship between indigenous peoples and their traditional lands, and the
fact that despite a large investment of time and resources by indigenous
peoples, many are unable to obtain recognition of their relationship to land
(art. 5).[43]

Successive governments have failed to take action in response to such
recommendations. As the NNTC observes, ‘there appears to have been no
close consideration given to statements made by UN bodies in the
past’.[44]

The Australian Government has introduced some welcome reforms to the native
title system in recent years. I explore some of these reforms and reform
proposals as they relate to agreement-making in Chapter 2.

However, the Australian Government has failed to address the most significant
obstacles within the native title system to the full realisation of our rights.
These obstacles include the onerous burden of proving native title, the
injustices of extinguishment, and other impediments to negotiating just and
equitable agreements. As one Native Title Service Provider (NTSP) commented, the
current nature of the law ‘and the lack of substantive reform —
results in significant burdens of proof and contributes to the fostering of
unsustainable relationships with other
stakeholders’.[45]

(b) Reappraising the native title system

I agree with the Special Rapporteur that:

The strengthening of legislative and administrative protections for
indigenous peoples’ rights over lands and natural resources should involve
aligning those protections with applicable international standards, in
particular those articulated in the Declaration on the Rights of Indigenous
Peoples.[46]

If the Government is serious about rebuilding its relationship with
Aboriginal and Torres Strait Islander peoples, it needs to ensure that the
Native Title Act is consistent with international human rights standards. Only
then will this country be able to begin ‘to rectify the consequences of
past injustices’ arising from our dispossession.

Many necessary reforms to the Native Title Act have been proposed and
extensively analysed by Aboriginal and Torres Strait Islander peoples and
non-Indigenous advocates and scholars. For example, there is a strong
groundswell of support for amendments to reverse the burden of proof that is
currently placed upon Aboriginal and Torres Strait Islander peoples. Supporters
of such amendments include the current Chief Justice of the High
Court.[47] Other essential reforms
were proposed by my predecessor in the Native Title Report
2009
.[48]

My consultations for the Native Title Report 2010, and my community
visits more generally, have affirmed my view that piecemeal reform will not
solve the problems that Aboriginal and Torres Strait Islander peoples face in
their engagement with the native title system. Indeed, such reform can serve to
add even more layers of complexity to the system.

I consider that a global, holistic review of the operation of the native
title system is required. The Special Rapporteur has recommended that:

[T]he Government should establish a mechanism to undertake a comprehensive
review at the national level of all such laws and related institutions and
procedures, giving due attention to the relevant reports of the Australian Human
Rights Commission and the Committee on the Elimination of All Forms of Racial
Discrimination.[49]

I support this recommendation, and recommend in Chapter 2 that the Australian
Government should commission an independent review of the Native Title Act. The
purpose of this review should be to develop reforms to ensure that the Native
Title Act complies with international standards.

The terms of reference for any such review should be developed in full
consultation with all relevant stakeholders, particularly Aboriginal and Torres
Strait Islander peoples. I consider that the review should at least involve an
inquiry into:

  • the current burden of proving native title

  • the operation of the law regarding extinguishment

  • the future act regime

  • options for advancing negotiated settlements (including the potential for
    alternative, comprehensive settlements).

As Social Justice Commissioner, I will:

  • advocate an independent review of the Native Title Act
  • advocate reform to the Native Title Act to ensure that it aligns with
    international human rights standards
  • monitor and report on amendments and proposed amendments to the Native
    Title Act and related policies.

 

1.5 Promoting effective engagement between
governments and Aboriginal and Torres Strait Islander peoples

The Declaration affirms our rights to self-determination and to participate
in decision-making in matters that would affect our rights. It also imposes a
duty upon states to consult and cooperate with us in order to obtain our free,
prior and informed consent before adopting and implementing legislative or
administrative measures that affect
us.[50]

During my community visits, I frequently heard examples of governments
failing to adequately engage with Aboriginal and Torres Strait Islander peoples.
I received this message consistently, across communities and across issues
— including in relation to matters involving the native title system.

Governments need to develop a new approach to consulting and engaging with
Aboriginal and Torres Strait Islander peoples. Governments must enable us to be
full and effective participants in decision-making processes regarding laws and
policies that would affect our rights.

(a) The case for effective engagement

In 2007, the National Board of Inquiry into the Protection of Aboriginal
Children from Sexual Abuse expressed its belief that:

[T]here needs to be a radical change in the way government and non-government
organisations consult, engage with and support Aboriginal people. A different
approach is urgently needed.[51]

I am also firmly of this view.

There is a sorry history in the native title system of governments adopting
practices, pursuing policies and enacting legislation without seeking or
obtaining the free, prior and informed consent of Aboriginal and Torres Strait
Islander peoples.

To confirm this, we need look no further than the 1998 amendments to the
Native Title Act (also known as ‘the Wik amendments’).[52] In 1999,
CERD highlighted, with concern, ‘[t]he lack of effective participation by
indigenous communities in the formulation of the
amendments’.[53]

More recently, there have been welcome signs that the Australian Government
has begun to embrace a new approach to working with us. For example, the
Minister for Indigenous Affairs has stated that the principle of ‘strong
engagement with Indigenous people ... underpins all our Indigenous policies and
the implementation of
programs’.[54] Further, the
Australian Government ‘aims to ensure that those most affected are equal
partners’ in the formation of its Indigenous Economic Development
Strategy.[55]

However, the reality of native title law and policy does not yet fully match
the Australian Government’s rhetoric of ‘equal partnership’
and ‘strong engagement’.

Too often, the ability of Aboriginal and Torres Strait Islander peoples to
fully participate in decision-making processes is stymied by factors such as
inadequate timeframes, predetermined outcomes, a lack of access to all relevant
information and insufficient consideration of our decision-making processes.
While we may be involved in certain government consultation processes, our views
may not be reflected in the outcomes of these processes. I illustrate these
issues further in Chapter 3.

Without meaningful and effective consultation, we will continue to have
things done to us rather than in partnership with us. In such an environment, it
will be impossible for governments to ‘reset’ their relationship
with us. It will also be impossible to truly close the gap.

Respect for our rights to self-determination and to participate in
decision-making is not just a matter of symbolism or empty rhetoric.
Fundamentally, it makes common sense to respect our rights. As observed by the
Special Rapporteur:

[W]ithout the buy-in of indigenous peoples, through consultation, at the
earliest stages of the development of Government initiatives, the effectiveness
of Government programmes, even those that are intended to specifically benefit
indigenous peoples, can be crippled at the
outset.[56]

Aboriginal and Torres Strait Islander communities frequently live with the
consequences of poor policy coordination and consultation. We know our
communities, our challenges and our strengths. We should be equal partners in
the development and delivery of government services, policies and programs.

(b) Building a framework for engagement

As I highlight in the Social Justice Report 2010, I am committed to
working with governments and Aboriginal and Torres Strait Islander communities
to improve our relationships.

I consider that improving the quality of consultation in relation to proposed
reforms to native title law and policy is an integral part of this
relationship-building endeavour.

In my statement to the recent session of the Expert Mechanism on the Rights
of Indigenous Peoples (EMRIP), I recommended that EMRIP develop ‘a
consultation and negotiation framework that clearly outlines the practical steps
necessary to achieve effective participation in decision making by Indigenous
peoples’.[57]

It is important that we also progress such a framework in Australia.

In Chapter 3, I begin to outline the elements of a meaningful and effective
consultation process in relation to native title law and policy reform. A
summary of these elements is contained in Appendix 4. I will further refine
these elements during my term.

As Social Justice Commissioner, I will:

  • monitor and report on the adequacy of government consultation processes
    regarding reforms to laws and policies that affect our rights to our lands,
    territories and resources
  • seek to work with governments to improve the quality of consultation
    processes in relation to matters that would affect our lands, territories and
    resources
  • engage with international human rights mechanisms to develop a
    consultation framework that can guide the domestic application of international
    standards.

 

1.6 Enhancing our capacity to realise our social,
cultural and economic development aspirations

The social, cultural and economic aspirations of the Aboriginal and Torres
Strait Islander communities that engage with the native title system are as
diverse as the communities themselves. Some people may simply seek a
long-awaited recognition of their inherent rights. Others may seek to leverage
their native title rights to secure employment and other benefits for their
people, including through environmental management activities.

We need to be able to develop the capacity to articulate, obtain and enjoy
the benefits that we seek through our engagement with the native title system.

I believe that we need to consider ‘capacity’ in a broad,
holistic way. Janet Hunt and Diane Smith define ‘capacity’ as:

[T]he capabilities of people, groups, organisations and whole societies to
reach their own goals over time. ‘Capabilities’ may consist of
skills, abilities, knowledge, behaviours, values, motivations, institutions,
resources, powers and so on. But more than that, capabilities represent the real
opportunities people have to achieve the combination of functionings that are
necessary to their
well-being.[58]

A lack of capacity can affect our ability to engage effectively in native
title claims processes, negotiate beneficial agreements, respond to future act
processes, and manage our native title rights and interests post-determination.
Ultimately, it can impede our abilities to realise our social, cultural and
economic development aspirations.

We must build our capacity to prosper and to realise our rights and
aspirations. Governments must assist us to achieve this. I firmly believe that
governments need to empower us to be the agents of our own change.

Article 39 of the Declaration affirms our right to have access to financial
and technical assistance from States for the enjoyment of our rights. In
addition, governments need to work with us to remove the structural barriers to
the full realisation of our social, cultural and economic aspirations.

At the same time, we also have responsibilities to do what we can to ensure
that our own communities are strong and able to realise our aspirations.

(a) Developing our financial and technical
capacity

Our organisations need to be able to access adequate resources in order to
best represent our interests and advance the enjoyment of our rights. At the
most basic level, we need skilled members, organisational support, and strong
governance structures to ensure we can utilise our native title rights and
interests, and make informed choices about our development.

(i) NTRBs and NTSPs

I frequently receive information that the work of NTRBs and NTSPs is severely
constrained by their limited funds. As one NTRB recently put it:

The ongoing funding crisis has forced brutal prioritisation of our work,
causing legitimate dissatisfaction from claimants, courts and respondents about
the limited number of claims that are being
progressed.[59]

Capacity deficits are also evident in our access to human resources. NTRBs
and NTSPs report that they struggle to recruit and retain professional advisors,
including anthropologists and legal
representatives.[60] This affects
our ability as Traditional Owners to achieve beneficial outcomes from
negotiations.

(ii) PBCs

This resource deprivation cuts even more sharply at the post-determination
and post-agreement stages. Our ability to manage our native title rights and
interests and to make informed choices about how to realise our aspirations is
directly affected by a lack of capacity.

I have repeatedly heard that there is a dire need for increased government
investment in PBCs. As the Yamatji Marlpa Aboriginal Corporation informed
me:

Given the significant amount of time, resources and effort that goes into
recognising native title, an investment in post-native title services will
ensure that the opportunities and benefits brought about by these rights are
fully realised and not lost.

Governments should not assume that all native title groups will have
sufficient income to establish and maintain a PBC with the capacity to comply
with the myriad regulatory obligations and requirements under the
NTA.[61]

I am informed that their lack of resources, remoteness, and difficulties in
accessing governance training and services affects

the ability of the PBCs to take steps to build their capacities in the areas
they may wish to strengthen; whether in relation to governance, leadership,
partnerships, heritage protection, management or any other area of
interest.[62]

Many PBCs struggle to perform basic administrative tasks — let alone
engage strategically with economic development or other funding opportunities. I
have also frequently heard that PBCs require further support to develop
culturally appropriate and effective governance structures.

A common observation is that PBCs need direct and upfront establishment
funding. The Cape York Land Council observes that a ‘high level of
assistance and support at the front end is critical to allow PBCs to develop
effective governance, compliance and decision-making
frameworks’.[63]

I understand that many PBCs are supported by NTRBs and NTSPs, even though
these organisations are themselves stretched for resources. However, I question
whether the financial position of many PBCs provides the foundation for
long-term, sustainable development.

(iii) More needs to be done

In recent years, I have been pleased to witness the growth of programs and
projects to support capacity development in the native title system. These
include the Aurora Project[64] and
the training activities conducted by Office of the Registrar of Indigenous
Corporations (ORIC).[65]

I am also informed that the Department of Families, Housing, Community
Services and Indigenous Affairs (FaHCSIA) committed close to $3 million in
funding during the Reporting Period to support capacity-building projects for
NTRBs and NTSPs.[66] Further,
FaHCSIA provided just over $1 million for PBC Basic Support during the Reporting
Period.[67]

I discuss other initiatives, such as the Australian Government’s new
Native Title Anthropologists Grants Program and the activities of the
inter-governmental Joint Working Group on Indigenous Land Settlements, in
Chapter 2.

But much more needs to be done. I frequently hear from NTRBs, NTSPs and PBCs
that this level of government support barely scratches the surface. I agree with
the Special Rapporteur’s assessment that:

The Government should increase the availability and effectiveness of
technical and financial resources to support indigenous representation and
participation in the procedures to identify and protect indigenous
peoples’ native title.[68]

(b) Strengthening our communities

As Aboriginal and Torres Strait Islander peoples, we also need to strengthen
our communities in order to realise our aspirations. I am fully aware that the
native title structures and systems imposed by governments have often served to
divide us.

We have fought hard for our rights to our country to be recognised. However,
we know that in some places there is work to be done within our families and our
clan, language or kinship groups. Internal disputes, harassment and bullying can
affect our ability to function, let alone achieve our economic, social and
cultural aspirations. For instance, it disturbs me that recent research by ORIC
has found that disputes constitute the third most prevalent ‘class’
of Indigenous corporate
failure.[69]

I welcome the emergence of recent initiatives to support the resolution of
disputes within our communities. For instance, ORIC has initiated and led a
pilot program for the management of post-determination disputes. This
collaborative project involves representatives from ORIC, NNTT, FaHCSIA and the
Attorney-General’s Department. I am informed that the pilot will be
evaluated in 2010–11.[70]

I encourage the Australian Government to further support our efforts to
address disputes and violence within our communities.

Yet, sometimes there is only so much that a government program can do.
Governments cannot and should not intervene to fix our internal relationships.
We bear the ultimate responsibility for the quality of our relationships with
each other. But governments can work with us and our communities as enablers and
facilitators. They can also work to remove existing structural and systemic
impediments to healthy relationships within our communities.

(c) Improving our access to development
opportunities

When considering law and policy reform proposals, we must always remember
that there is no ‘one-size-fits-all’ model of development. Not every
community will wish to develop their own enterprises. Not every community will
seek to ‘develop’ their lands in strictly economic terms. As article
23 of the Declaration affirms, we have the right to determine and develop our
own priorities and strategies for exercising our right to development.

However, we must also have access to opportunities to enable us to realise
our social, cultural and economic aspirations. Governments need to work with us
to remove the barriers to our individual and collective prosperity.

This invites consideration of whether the current legal and policy framework
enables us to realise our aspirations. For example, are our communities able to
use our native title rights to leverage economic development if we choose to?
Are we able to access new and emerging markets, including carbon markets?

I believe it is important to ask these questions as we move, more and more,
towards post-determination and post-agreement environments.

As Social Justice Commissioner I will:

  • encourage further dialogue between Aboriginal and Torres Strait Islander
    peoples, governments and other stakeholders to identify solutions to the
    barriers to the full realisation of our social, cultural and economic
    development aspirations
  • encourage the Australian Government to provide adequate financial and
    technical assistance to Aboriginal and Torres Strait Islander peoples and
    organisations to help us develop our capacity.

 

1.7 Conclusion

The Native Title Act was ‘intended to further advance the process of
reconciliation among all
Australians’.[71] Accordingly,
native title needs to be an important part of any conversation about the future
of reconciliation in Australia.

We cannot achieve reconciliation in this country while:

  • there is limited understanding about our rights to our lands, territories
    and resources

  • injustices exist within native title law and policy

  • we are not fully able to participate in decision-making in matters that
    affect our rights

  • we lack the capacity and the opportunity to realise our social, cultural and
    economic aspirations.

My aim in this Chapter has been to outline
the key themes that will guide my work in relation to native title, and, in
doing so, to begin a conversation about our rights. In my recommendations,
below, I identify three key ways in which the Australian Government can respond
to my invitation to engage in dialogue with our peoples.

Over the next four years, I look forward to working with Aboriginal and
Torres Strait Islander peoples, governments, the corporate sector and other
native title stakeholders to achieve the full realisation of our human rights
‘in a spirit of partnership and mutual
respect’.[72]

Recommendations

1.1 That the Australian Government work in partnership with Aboriginal and
Torres Strait Islander peoples to develop a national strategy to ensure the full
implementation of the United Nations Declaration on the Rights of Indigenous
Peoples
.

1.2 That the Australian Government introduce legislation into Parliament to
require the Attorney-General to table the annual Native Title Report within a set timeframe.

1.3 That the Australian Government introduce legislation into Parliament to
require the Attorney-General to provide a formal response to the annual Native Title Report and the Social Justice Report within a set
timeframe.


[1] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[2] National
Native Title Tribunal, Annual Report 2009–10 (2010), p 26. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed 19 October 2010).
[3] National Native Title
Tribunal, Annual Report 2009–10 (2010), p 22. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20report%202009%20-%202010.pdf (viewed
19 October 2010).
[4] National Native Title Tribunal, ‘Native title reaches another
milestone’ (Media Release, 27 November 2009). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/Nativetitlereachesanothermilestone.aspx (viewed
29 September 2010).
[5] M
Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January–June 1994, Human Rights and Equal
Opportunity Commission (1995), p 7. At http://www.austlii.edu.au/au/other/IndigLRes/1995/3/index.html (viewed 19 October 2010).
[6] K Smith, “Our old
people are dying”; a cry for broader land settlement and social justice
not just native title claim disposition
(Speech delivered to the 2nd Annual
National Native Title Law Summit, Brisbane, 16 June 2010), p 1.
[7] United Nations Declaration
on the Rights of Indigenous Peoples
, GA Resolution 61/295 (Annex), UN Doc
A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
19 October 2010).
[8] GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[9] United Nations High
Commissioner for Human Rights, Report of the United Nations High Commissioner
for Human Rights on the rights of indigenous peoples
, Report to the Human
Rights Council, 15th session, UN Doc A/HRC/15/34 (2010), para 92. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[10] General Assembly, Official Records, 107th plenary meeting, 61st session,
UN Doc A/61/PV.107 (13 September 2007), p 19. At http://www.un.org/depts/dhl/resguide/r61.htm (viewed
19 October 2010).
[11] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed
19 October 2010).
[12] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 19 October 2010).
[13] C P Burgess et al,
‘Healthy country, healthy people: the relationship between Indigenous
health status and “caring for country”’ (2009) 190(10) Medical Journal of Australia 567, p
567.
[14] This includes the International Convention on the Elimination of All Forms of Racial
Discrimination
, 1965. At http://www2.ohchr.org/english/law/cerd.htm (viewed 19 October 2010); International Covenant on Civil and
Political Rights
, 1966. At http://www2.ohchr.org/english/law/ccpr.htm (viewed 19 October 2010); International Covenant on Economic,
Social and Cultural Rights
, 1966. At http://www2.ohchr.org/english/law/cescr.htm (viewed 19 October 2010).
[15] For a discussion of the
international obligations assumed by Australia in entering into human rights
treaties, see Australian Human Rights Commission, Submission to the National
Human Rights Consultation
(June 2009), pp 13–15. At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC.html (viewed
19 October 2010).
[16] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/61/L.67 (2007), art 43. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
19 October 2010).
[17] For commentary on the legal status of the Declaration, see P Joffe,
‘Canada’s Opposition to the UN Declaration: Legitimate Concerns or
Ideological Bias?’ in J Hartley, P Joffe and J Preston (eds), Realizing
the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and
Action
(2010) 70, pp 85–93; “Article 42 of the United Nations
Declaration on the Rights of Indigenous Peoples”
in United Nations
Permanent Forum on Indigenous Issues, Report on the eight session (1829 May 2009), UN Doc E/2009/43, E/C.19/2009/14
(2009) Annex, paras 6–13. At http://www.un.org/esa/socdev/unpfii/documents/E_C_19_2009_14_en.pdf (viewed
29 November 2010).
[18] For example, the Committee on the Elimination of Racial Discrimination has
recommended that the Declaration be used as a guide to interpret the obligations
of the United States of America under the International Convention on the
Elimination of All Forms of Racial Discrimination
relating to Indigenous
peoples: Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
United States of America
, UN Doc CERD/C/USA/CO/6 (2008), para 29. At http://www2.ohchr.org/english/bodies/cerd/cerds72.htm (viewed 19 October 2010).
[19] Native Title Act 1993 (Cth), s 209.
[20] United
Nations Declaration on the Rights of Indigenous Peoples
, GA Resolution
61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 24. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[21] J Anaya, Report by
the Special Rapporteur on the situation of human rights and fundamental freedoms
of indigenous people, James Anaya: Addendum: Situation of indigenous peoples in
Australia
, Report to the Human Rights Council, 15th session, UN Doc
A/HRC/15/37/Add.4 (2010), para 78. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[22] Australian Human Rights Commission Act 1986 (Cth), s
46M.
[23] Senate Legal and
Constitutional References Committee, Parliament of Australia, Reconciliation:
Off track
(2003), p xii (recommendation 9). At http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/reconciliation/report/report.pdf (viewed
19 October 2010).
[24] P Agius, CEO, South Australian Native Title Services, Correspondence to J
Hartley, Senior Policy Officer, Social Justice Unit, Australian Human Rights
Commission, 1 October 2010.
[25] United Nations
Declaration on the Rights of Indigenous Peoples,
GA Resolution 61/295
(Annex), UN Doc A/RES/61/295 (2007), art 42. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[26] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous
Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 19 October 2010).
[27] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous
Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 19 October 2010).
[28] See, for example, Senator
the Hon G Brandis, Shadow Attorney-General, ‘What right to develop their
land?’, The Australian, 12 January 2010, p 10. At http://www.theaustralian.com.au/news/opinion/what-right-to-develop-their-land/story-e6frg6zo-1225818205719 (viewed 18 August 2010); Commonwealth, Parliamentary Debates, House of Representatives, 8 February 2010, p 715 (The Hon T Abbott
MP, Leader of the Opposition). At http://www.aph.gov.au/hansard/reps/dailys/dr080210.pdf (viewed 19 October 2010).
[29] Carpentaria Land Council
Aboriginal Corporation, Submission in relation to proposed housing and
infrastructure amendments to the
Native Title Act 1993 (Cth) (4 September 2009), para 4.9. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
19 October 2010).
[30] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Constitutional and Legal Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), p
4. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 19 October 2010).
[31] See J Altman, Submission to the Senate Constitutional and Legal Affairs Legislation
Committee Inquiry into the Native Title Amendment Bill (No 2) 2009 (Cth)
(6 November 2009), p ii. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=4aefac4d-1178-4e95-962e-d3ab0d5a8119 (viewed 19 October 2010); Carpentaria Land Council Aboriginal
Corporation, Submission in relation to proposed housing and infrastructure
amendments to the
Native Title Act 1993 (Cth) (4 September 2009), paras 3.1–3.10. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed 19 October 2010).
[32] World Conference on Human
Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23
(1993), p 5 (para 5).
[33] J
Anaya, Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya,
Report to the Human
Rights Council, 15th session, UN Doc A/HRC/15/37 (2010), para 31. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[34] See Australian Human Rights Commission, Corporate Social Responsibility &
Human Rights (2008)
, http://www.humanrights.gov.au/human_rights/corporate_social_responsibility/corporate_social_responsibility.html (viewed
19 October 2010).
[35] See J Ruggie, Protect, Respect and Remedy: a Framework for Business and Human
Rights
, Report of the Special Representative of the Secretary-General on the
issue of human rights and transnational corporations and other business
enterprises to the Human Rights Council, 8th session, UN Doc A/HRC/8/5 (2008),
paras 51–81. At http://www2.ohchr.org/english/bodies/hrcouncil/8session/reports.htm (viewed
19 October 2010).
[36] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya,
Report to the
Human Rights Council, 15th session, UN Doc A/HRC/15/37 (2010), para 83. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[37] For a profile of this agreement, see T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2006, Human
Rights and Equal Opportunity Commission (2007), ch 5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed
19 October 2010).
[38] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 27. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[39] Native Title Act
1993
(Cth), preamble.
[40] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 19 October 2010).
[41] National Native Title
Council, Submission to the United Nations Committee on the Elimination of
Racial Discrimination
(undated), p 2. At http://www2.ohchr.org/english/bodies/cerd/docs/ngos/NNC_Australia77.doc (viewed
19 October 2010).
[42] See, for example, Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial
Discrimination: Australia
, UN Doc CERD/C/AUS/CO/14 (2005), para 16. At http://www2.ohchr.org/english/bodies/cerd/cerds66.htm (viewed 19 October 2010); Human Rights Committee, Concluding
observations of the Human Rights Committee: Australia
, UN Doc
CCPR/C/AUS/CO/5 (2009), para 16. At http://www2.ohchr.org/english/bodies/hrc/hrcs95.htm (viewed 19 October 2010); Committee on Economic, Social and Cultural
Rights, Concluding Observations of the Committee on Economic, Social and
Cultural Rights: Australia
, UN Doc E/C.12/AUS/CO/4 (2009), para 32. At http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm (viewed 19 October 2010); J Anaya, Report by the Special Rapporteur
on the situation of human rights and fundamental freedoms of indigenous people,
James Anaya: Addendum: Situation of indigenous peoples in Australia
, Report
to the Human Rights Council, 15th session, UN Doc A/HRC/15/37/Add.4 (2010),
paras 29, 84–87. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19 October 2010).
[43] Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia
, UN Doc
CERD/C/AUS/CO/15-17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 2 December 2010).
[44] National Native Title Council, Submission to the United Nations Committee on
the Elimination of Racial Discrimination
(undated), p 2. At http://www2.ohchr.org/english/bodies/cerd/docs/ngos/NNC_Australia77.doc (viewed
19 October 2010).
[45] P Agius, CEO, South Australian Native Title Services, Correspondence to J
Hartley, Senior Policy Officer, Social Justice Unit, Australian Human Rights
Commission,
1 October 2010.
[46] J
Anaya, Report by the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya: Addendum: Situation of
indigenous peoples in Australia
, Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), para 29. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[47] Chief Justice R S French, ‘Lifting the burden of native title: Some modest
proposals for improvement’ (2009) 93 Reform 10. At http://www.austlii.edu.au/au/other/alrc/publications/reform/reform93/ (viewed
7 October 2010).
[48] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
19 October 2010).
[49] J Anaya, Report by the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia
, Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), para 85. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
19 October 2010).
[50] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), arts 3, 18, 19, 32. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).
[51] National Board of Inquiry
into the Protection of Aboriginal Children from Sexual Abuse, Ampe
Akelyernemane Meke Mekarle “Little Children are Sacred”
(2007),
p 50. At http://www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf (viewed
19 October 2010).
[52] For a review of these amendments, see M Dodson, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report: July
1996–June 1997
, Human Rights and Equal Opportunity Commission (1997).
At http://humanrights.gov.au/social_justice/nt_report/index.html#1997 (viewed 19 October 2010); 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 19 October 2010); 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
19 October 2010).
[53] Committee on the Elimination of Racial Discrimination, Decision 2(54) on
Australia
, UN Doc A/54/18 (1999) 6, p 7 (para 9).
[54] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs, Budget 2010–11: Closing the Gap Between Indigenous and Non-Indigenous
Australians
(Statement, 11 May 2010). At http://www.fahcsia.gov.au/about/publicationsarticles/corp/BudgetPAES/budget10_11/Documents/indig_statement.htm (viewed
19 October 2010).
[55] Australian Government, Indigenous Economic Development Strategy: Draft for
Consultation
(2010), p 8. At http://resources.fahcsia.gov.au/IEDS/ieds_default.htm (viewed
19 October 2010).
[56] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 36 At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
19 October 2010).
[57] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Statement to the Expert Mechanism on the Rights of Indigenous Peoples,
3rd session, agenda item 3 (12–16 July 2010). At http://www.humanrights.gov.au/social_justice/international_docs/2010_EMRIP_Gooda.html (viewed
15 September 2010).
[58] J Hunt & D E Smith, Building Indigenous community governance in
Australia: Preliminary research findings,
Centre for Aboriginal Economic
Policy Research, Working Paper No 31/2006 (2006), p 50. At http://caepr.anu.edu.au/Publications/WP/2006WP31.php (viewed
19 October 2010).
[59] Goldfields Land and Sea Council Aboriginal Corporation, Annual Report
2008–2009
(2009), p 7. At http://www.glc.com.au/pu_xx/AR%2008-09.pdf (viewed
19 October 2010).
[60] See, for example, Cape York Land Council Aboriginal Corporation, Annual
Report 2008–2009
(2009), p 38. At http://www.cylc.org.au/index.php?option=com_docman&task=doc_download&gid=24&Itemid=53 (viewed
19 October 2010).
[61] S Hawkins, CEO, Yamatji Marlpa Aboriginal Corporation, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 9
August 2010.
[62] P Agius, CEO,
South Australian Native Title Services, Correspondence to J Hartley, Senior
Policy Officer, Social Justice Unit, Australian Human Rights Commission,
1 October 2010.
[63] Cape York Land Council, ‘Information requested for the Native Title
Report 2010
’ (10 October
2010).
[64] See The Aurora
Project
, http://www.auroraproject.com.au/About.htm (viewed
12 October 2010).
[65] During the Reporting Period, ORIC received 10 training requests from Registered
Native Title Bodies Corporate (RNTBCs). ORIC organised and funded 13 workshops,
which were attended by 16 PBCs and RNTBCs: A Beven, Registrar of Indigenous
Corporations, Correspondence to M Gooda, Aboriginal and Torres Strait Islander
Social Justice Commissioner, 16 August
2010.
[66] These include the
Aurora Project, the AIATSIS Native Title Research Unit, the University of
Western Australia’s Anthropology Subsidy, and training and workshops for
NTRB boards and staff: G Roche, Branch Manager, Indigenous Programs, Department
of Families, Housing, Community Services and Indigenous Affairs, Correspondence
to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
13 August 2010.
[67] G Roche,
Branch Manager Indigenous Programs, Department of Families, Housing, Community
Services and Indigenous Affairs, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner, 13 August 2010.
[68] J Anaya, Report by the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya: Addendum: Situation of indigenous peoples in
Australia
, Report to the Human Rights Council, 15th session, UN Doc
A/HRC/15/37/Add.4 (2010), para 87. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19 October 2010).
[69] Office of the Registrar of
Indigenous Corporations, Analysing key characteristics in Indigenous
corporate failure: research paper
(2010), p 46. At http://www.oric.gov.au/html/publications/other/Analysing-key-characteristics-in-Indigenous-corporate%20failure_v-2-2.pdf (viewed 19 October 2010).
[70] A Beven, Registrar, Office
of the Registrar of Indigenous Corporations, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, 16 August
2010; A Beven, Registrar of Indigenous Corporations, ‘Strengthening
governance in PBCs’ (Speech delivered at the 2010 Native Title Conference,
Canberra, 2 June 2010), p 6. At http://www.oric.gov.au/html/publications/speeches/2010_speech_Native-title-conference-paper_strengthening-PBCs.doc (viewed 19 October 2010).
[71] Native Title Act
1993
(Cth), preamble.
[72] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 24. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 19 October 2010).