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Submission - Interim Report for comment by Independent Review Committee

Submissions of Aboriginal
and Torres Strait Islander Social Justice Commissioner on Interim Report
for comment by Independent Review Committee

1.
OVERVIEW

1.1
Introduction

In
September 2001, the Western Australian ('WA') Government established
a review of the Project Development Approvals System ('Review')
to be undertaken by the Independent Review Committee ('Committee').
The Committee is chaired by a former Commonwealth public servant and comprises
five other members: three from resource/development companies, a member
of a WA environmental group and an officer from a Native Title Representative
Body ('NTRB'). The Committee published an Interim Report for
comment
in January 2002 [1] ('Report').

The
Aboriginal and Torres Strait Islander Social Justice Commissioner ('Commissioner')
has statutory functions to promote discussion and awareness of human rights
in relation to Aboriginal and Torres Strait Islander people, to report
to the Commonwealth Government on the enjoyment and exercise of human
rights by Indigenous Australians, and to recommend where necessary on
action that should be taken to ensure these rights are observed. [2]
These submissions are made pursuant to the Commissioner's functions. A
summary of the recommendations arising from these submissions is contained
in section 5.

1.2
Contents

These
submissions first outline the human rights principles relevant to the
Review, and then focus on the particular areas in the Report of concern
from a human rights perspective. The document is divided into the following
sections:

2
RELEVANT HUMAN RIGHTS PRINCIPLES

2.1 Relevance of human rights to State government
2.2 Equality and non-discrimination
2.3 Development and self-determination
2.4 Maintenance of Indigenous culture
3 ROLE OF INDIGENOUS PEOPLE IN THE REVIEW
3.1 Scope for Committee's addressing Indigenous
issues
3.2 Extent of Indigenous involvement
3.3 Use of case examples
3.4 Committee's disposition to Indigenous rights
4 ANALYSIS OF NATIVE TITLE SYSTEM and ABORIGINAL
HERITAGE
4.1 Native Title Act and procedures
4.2 Croker Island case
4.3 Interaction between native title and other development
approvals
4.4 Resourcing and negotiating outcomes
5 RECOMMENDATIONS
5.1 Report inaccuracies or misdescriptions
5.2 The way forward

2.
RELEVANT HUMAN RIGHTS PRINCIPLES

The
human rights principles set out below are drawn mainly from international
treaties including the International Convention on the Elimination
of All Forms of Racial Discrimination
[3] ('ICERD')
and the International Covenants on Economic, Social and Cultural Rights
[4] ('ICESCR') and on Civil and Political Rights
[5] ('ICCPR'). Australia voluntarily
assumed these treaty obligations and has participated in the development
of other international human rights standards, through the United Nations
('UN') processes and world conferences. Some of these standards
have since become norms of international law [6]. These
norms together with the various treaties [7] and other
international standards provide principles relevant to the formulation
of government policies and legislation which affects Indigenous people.

2.1
Relevance of human rights to State government

Government
officials and processes in WA are required, under international and domestic
law, to act in a manner consistent with human rights.

At
international law, pursuant to the Vienna Convention on the Law of Treaties,
Australia has agreed that its internal laws, such as laws enacted by State
Governments, cannot justify failure to perform a treaty.[8]
In addition, under ICERD, Australia has a positive obligation to ensure
all public authorities and institutions do not act in a racially discriminatory
manner.[9] The Universal Declaration of Human Rights
('UDHR') also applies human rights norms to 'every organ of society'.
[10]

Australian
domestic law supports the proposition that states and territories should
exercise their powers and functions consistently with international human
rights principles. There is a long-established legal presumption that
a statute should be interpreted and applied, as far as its language permits,
so that it is not inconsistent with the comity of nations and established
rules of international law. [11] Where the language
of a statute permits a construction of the statute that is consistent
with international human rights law, the WA Government should act in accordance
with Australia's human rights treaty obligations by adopting that construction.
[12]

The
Racial Discrimination Act 1975 (Clth) ('RDA') was enacted
pursuant to the Commonwealth's external affairs power and implements Australia's
international obligations under ICERD. This legislation prohibits States
from enacting legislation or exercising its powers in a racially discriminatory
manner. In addition, the Native Title Act 1993 (Clth) ('NTA') explicitly
confirms that the RDA applies to the performance of functions or exercise
of powers conferred by the NTA [13], including those
conferred to State governments.

2.2
Equality and non-discrimination

The
principle of non-discrimination, and more specifically the principle of
racial non-discrimination, is recognised in every major international
human rights treaty, convention and declaration. It is recognised and
protected in the following instruments of which Australia is a signatory.

  • UDHR, Article 2;
  • ICCPR, Article 2;
  • ICERD,
    Article 2;
  • Convention on the Rights of the Child, Article 2;
  • ICESCR, Article 2.

Under
these instruments Australia is required to protect the right to equality,
including equal protection of property interests, without distinction
as to race, colour or ethnic origin. [14] Native title
was recognised in 1992 in the High Court decision of Mabo [15]
and has its origins in the traditions and laws of the claimant group.
In order to achieve equal protection of native title rights, the government
must adopt measures that protect the unique nature of those rights. This
requires adopting measures that are different to those used to protect
non-Indigenous interests. [16] This is the principle
of 'relative' or 'substantive' equality, [17] which
is acknowledged by the Australian government as the international standard
required under ICERD. [18]

ICERD
also requires that racial groups be given equal participation in public
life. [19] The Committee on the Elimination of Racial
Discrimination, ('CERD Committee') which assists in monitoring
and implementing ICERD, has interpreted this to mean that Indigenous peoples
have equal rights to effective participation in public life and that no
decisions directly relating to their rights and interests should be taken
without their informed consent. [20] The CERD Committee
has criticised the process by which the amendments to the NTA were enacted,
noting the failure of the Australian government to obtain the informed
consent of Indigenous people to legislation which affects their rights.
Effective participation of Indigenous people is also required for the
formulation of policies which affects the human rights of Indigenous people.
[21]

2.3
Development and self-determination

The
UN General Assembly has repeatedly emphasised the need for development
issues to be addressed by governments.[22] It has confirmed
that all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development. The General Assembly
noted the 'right to development' implies the full realization of the right
of peoples to self-determination, including the exercise of their inalienable
right to full sovereignty over all their natural wealth and resources.
[23]

'Development'
in this context does not simply mean 'economic growth', but is better
understood as 'sustainable human development' [24],
which requires creating an environment in which people can develop their
full potential and lead productive, creative lives in accordance with
their needs and interests.[25] The UN General Assembly
recently emphasised the link between development and human rights, in
outlining a program towards sustainable development, noting the interdependence
of economic development, social development and environmental protection.
[26] It is necessary for governments to establish legal,
political, economic and social environments that enable the realization
of the right to development. [27]

Self-determination,
through article one of ICCPR and ICESCR, enshrines a peoples' right to
freely determine their political status and freely pursue economic, social
and cultural development.[28] The literal meaning of
self-determination is that a people determine issues for itself.
The Human Rights Committee, meeting in July 2000 to discuss Australia's
performance under ICCPR, made it clear that self-determination is a right
to which Indigenous people are entitled. Its observation on Australia
with respect to this right is of concern:

With respect to
article 1 of the Covenant, the Committee takes note of the explanation
given by the delegation that rather than the term 'self-determination'
the Government of the State party prefers terms such as 'self-management'
and 'self-empowerment' to express domestically the principle of indigenous
peoples exercising meaningful control over their affairs. The Committee
is concerned that sufficient action has not been taken in that regard.
[29]

2.4
Maintenance of Indigenous culture

Australia,
in ratifying the ICCPR, agreed that members of minority groups are entitled
to maintain and enjoy a distinct culture. [30] Where
land is important to the sustenance of a culture, as it is with Indigenous
culture, then the right to enjoyment of culture requires the protection
of territories upon which that culture is founded.[31]
If such territories are to be used for developments, then Indigenous peoples'
right to enjoy their culture requires that, in the absence of agreement,
the territories should not be subject to use in any way that has more
than a 'limited impact' on the Indigenous way of life.[32]
For Indigenous rights to be enjoyed, a government may need to ensure that
Indigenous people can effectively participate in decisions that affect
them. [33]

The
right to enjoyment of culture should not be interpreted as a 'frozen'
right limited to when the culture was supposedly 'pure' or 'traditional'.
Nor is it restricted only to the traditional means of livelihood but includes
a right to social and cultural evolution and economic development.[34]
This is particularly relevant to development issues, with ICERD requiring
that countries should 'provide Indigenous peoples with conditions allowing
for a sustainable economic and social development compatible with their
cultural characteristics'. [35]

The
lack of equal protection of Indigenous culture and Indigenous property
rights under the NTA has been criticised by three UN committees. [36]

3
ROLE OF INDIGENOUS PEOPLE IN THE REVIEW

The
central issue addressed in these submissions is the role of Indigenous
people in the Review as evidenced by the Report. Under this heading, I
firstly consider (in section 3.1) the Review's scope or potential to address
Indigenous issues as determined by its establishment and terms of reference.
Then I turn to consider the extent of Indigenous involvement in the Review,
which can be measured in three ways: the actual participation of Indigenous
parties (section 3.2), the Report's use of case examples (3.3) and the
Committee's disposition to Indigenous rights (3.4).

3.1
Scope for Committee to address Indigenous issues

The
WA Government set terms of reference specifying an outcome for the Committee:

A system of
government decision making
which is co-ordinated and integrated,
clear and unambiguous, which is balanced between community and developer
needs and which will lead to Western Australia being the global location
of choice for project development.
[37]

My
concern in relation to this outcome is that it gives insufficient weight
to the protection of fundamental human rights. While the phrase 'balanced
between community and developer needs' indicates that community concerns
will be taken into account in the final decision-making system, it does
not ensure that human rights, particularly those of Indigenous people,
will be protected in the final outcome. Australia's international obligation
under human rights treaties is not to balance the rights of Indigenous
people to have their culture and property rights protected against the
needs or interests of developers. Rather it is to ensure that Indigenous
culture is enjoyed and maintained and that Indigenous property rights
are protected to the same extent as non-Indigenous property rights. Where
Indigenous rights are extinguished or impaired in order to secure benefits
to non-Indigenous interests, this is racially discriminatory and breaches
ICERD, ICCPR and ICESCR.

A
further issue of concern in the review outcome is that, by stipulating
that the purpose of the decision-making system is to 'lead to Western
Australia being the global location of choice for project development'
a preference for development, even where this may be in conflict with
the human rights of those affected by such developments, is built into
the review process. Of course there is no inherent conflict between development
and human rights principles. Many businesses have developed human rights
policies [38] and incorporate human rights standards
in their choice of where to locate or how to manage projects. However,
where companies fail to adhere to these standards voluntarily, it is incumbent
on governments to ensure, through policy and legislation, that the country's
international human rights obligations are met. The Review offers an opportunity
for the Western Australian government to address these issues at the policy
level and introduce corporate responsibility benchmarks for companies
seeking to develop projects in Western Australia. In this way a true balance
between community and developer needs, one that is consistent with Australia's
human rights obligations, will be achieved.

The
Review's scope requires the Committee to 'consider all elements of government
decision-making' relevant to development projects, specifically including
government decisions on Aboriginal heritage, land tenure and native title
practices.[39] The Committee's chair characterises the
task: 'to review the processes operating in the Western Australian public
sector for approving proposals for development projects in the State'.
[40] Both these statements encompass a process broad
enough to address Indigenous human rights within the Committee's work
and final report. These submissions now review how Indigenous human rights
have featured in the Committee's progress.

3.2
Extent of Indigenous involvement

Although
the review was publicised, submissions invited and over 55 submissions
received, not one submission was from an Indigenous organisation. [41]

The
lack of Indigenous input is, of itself, a matter of concern. As explained
in section two of these submissions, various human rights standards indicate
that effective Indigenous participation is essential in decision making
that will affect their traditional lands and lifestyles. I recommend the
Committee ensure that its deliberations are well publicised to Indigenous
organisations and people who may be affected by those deliberations, and
that those parties have every opportunity to effectively participate in
the Committee's work. Within the scope of 'Indigenous organisations and
people', I particularly mention NTRBs, the Aboriginal Legal Service of
Western Australia, ATSIC, all registered native title claims and Aboriginal
corporations operating in WA.

It
is widely accepted that many of the above organisations are chronically
under-funded and thus unable to devote scarce resources to government
policy formulation. This is particularly the case with NTRBs whose statutory
functions are primarily service delivery and yet have a wealth of experience
in relation to the impact of developments on Indigenous people. In such
circumstances, and in order to achieve effective participation, the Review
Committee should arrange to meet with relevant people and take oral submissions
where necessary. Alternatively funding should be provided to ensure the
views of such groups and people are taken into account.

3.3
Use of case examples

The
Committee uses 15 case studies to demonstrate discussions in the Report.
Five case studies feature interaction of Indigenous people and the approval
process. Every one of these five case studies presents a negative outcome
as a result of the interaction. Not one case study is given of Indigenous
involvement leading to a positive outcome. There was also no case study
assessing the detrimental effect on Indigenous parties of particular development
approvals.[42] The selection of case studies is gives
an impression that the Committee has not taken sufficient account of an
Indigenous perspective relevant to its work

I
recommend the Committee examine further case studies, and re-assess the
studies already included in the Report, to incorporate in its work the
effect of WA's development approval processes on Indigenous people.

3.4
Committee disposition to Indigenous rights

The
Committee's 'brief' is wide enough to incorporate human rights and an
Indigenous perspective of the development approval process. In my view,
however, the Committee has adopted a development oriented perspective
and has not addressed human rights principles relevant to Indigenous people.
Even where the status and role of Indigenous people is centrally important,
for example in discussing the operation of the Native Title Act and Aboriginal
heritage, this is not reflected in the Report. The sections below outline
the areas of concern that have lead to this analysis of the Committee's
approach.

(a)
One of the more striking examples of the Committee's approach to Indigenous
rights is the Report's statement:

For an international
investor, used to be being able to easily obtain land titles on an unencumbered
basis, the present requirement on the proponent to negotiate with Aboriginal
groups that only have untested claims to hold native title is met with
a mixture of amazement and disbelief. …As land access is crucial
to project planning and funding, this lack of ability by the State to
provide unencumbered land is a major weakness in efforts to attract
investment …[I]t is not sensible to allow obstacles to be placed
before the owner of a resource, as that owner may have alternatives
elsewhere, where land is not an issue. [43]

This
statement does not accord with the principle that Indigenous people should
effectively participate in decisions affecting their traditional lands
and lifestyles. It also suggests the Committee has some difficulty or
reluctance in understanding that historical practices of land management
and development approval, which ignored any Indigenous interests, are
no longer appropriate.

The
legal fiction that the 'Crown' owns 'vacant' land, or terra nullius, was
officially discredited ten years ago. [44] A Joint Parliamentary
Committee recently heard of the change of mind-set this requires for land
use and planning:

[P]lanners need
to change their mind-set. They used to operate on the basis that greenfields
were vacant and available for chopping up for land development and that
nobody else had an interest in it, other than the Crown. That is now
no longer the case. Planners have to shift the paradigm away from that.
Land is no longer vacant. In fact, I do not use the term 'vacant crown
land' any more. I use the term 'unallocated', because that is what crowns
do. They allocate interest in land, and they do that on the basis of
radical title, not beneficial title, in most cases, which means that
native title may still exist. [45]

I
am particularly concerned by the Committee's view that '[I]t is not sensible
to allow obstacles to be placed before the owner of a resource, as that
owner may have alternatives elsewhere, where land is not an issue'.[46]
In the context of the Report, 'obstacles' refers to 'Aboriginal…claims
to hold native title'. [47] In many cases, 'claims to
native title' are an approximation or attempt by the Australian legal
system to recognise and accommodate Indigenous law and customs connected
with a particular area of land. [48] These laws and
customs usually have no 'alternative elsewhere' - the beliefs, practices
or sites are intrinsic to a specific piece of land. It is racially discriminatory
for the Committee to prefer a non-Indigenous interest (development) that
'may have other alternatives elsewhere' to the detriment of Indigenous
interests in a particular area of land. I cannot emphasise enough that
the Committee should re-assess its approach on such matters.

(b)
In my view, the Committee's emphasis on the need for 'unencumbered land'
has caused a failure to take Indigenous rights into account in the consideration
of compulsory acquisition / extinguishment of native title rights. Essentially,
the Committee proceeds on the basis that where land is needed for development,
relevant procedures should be followed leading to native title rights
being appropriated or extinguished. [49]

Compulsory acquisition processes carry with them the extinguishment of
native title rights.[50] This prevents any future recognition
of native title rights even where the non-Indigenous interest (which was
created through the compulsory acquisition process) subsequently ends.
Given that Australian law dictates that validly created non-Indigenous
interests prevail over native title rights,[51] there
is little justification for the permanent extinguishment of native title
rights. Such an approach is contrary to Australia's international human
rights obligations. An approach more in accordance with human rights principles
is for the non-extinguishment principle [52] to be used
in relation to all interests created in land that may be covered by a
native title claim. This will not affect the future interest that government
creates (because, provided it is created validly, the future interest
prevails over native title rights [53]). Non-extinguishment
simply allows Indigenous rights in that country to be recognised after
the non-Indigenous interest has expired.

(c)
As noted above, the Report states:

The native title
situation in Western Australia is seen as generally unsatisfactory by
Aboriginals, proponents and the State. The length of time and complexity
in obtaining title to, or over, land where native title exists is a
significant present weakness. [54]

I
have already noted the Committee received no Indigenous submissions, which
raises some question as to how the Committee formed its analysis of 'Aboriginals'
views on the native title situation in WA. An additional matter, however,
is the issue of what it is that 'Aboriginals' see as 'generally unsatisfactory'
about the native title system in WA.

The
Report indicates that the Aboriginal criticism is 'the length of time
and complexity in obtaining title…over land where native title exists
is a…weakness'. If the word 'title' included both Indigenous title
(a native title determination, either from agreement or litigation) and
non-Indigenous title (eg. mineral tenements), the Committee's statement
is probably correct - most parties involved in native title proceedings
would prefer a quicker resolution than currently occurs. However, the
Committee's consideration of 'title' here encompasses only non-Indigenous
title like mineral tenements [55], and it is wrong for
the Committee to suggest that Aboriginal people consider the native title
system suffers from weakness because of the complexity and delay in non-Indigenous
title being secured over native title land. The overwhelming view of Aboriginal
people is that Indigenous interests are poorly incorporated into the Government's
land management and dealings and that Indigenous rights are not protected
strongly enough. [56] The Committee may wish to reconsider
its analysis of Aboriginal views of the native title situation in WA.

4.
ANALYSIS OF NATIVE TITLE SYSTEM and ABORIGINAL HERITAGE

4.1
Native Title Act and procedures

The rationale for native title, which is not addressed in the Committee's
work, is that it is a recognition of Indigenous laws and customs that
pre-existed the acquisition of sovereignty in Australia. [57]
The first of the NTA's four main objects is 'to provide for the recognition
and protection of native title'. [58] The NTA was introduced
to protect Indigenous interests and establish a system for developing
their co-existence with non-Indigenous rights.

The Report's discussion of native title notes '[T]he then State Government
tried twice to bring down its own legislation. The first was seen by many
as a direct challenge to the Native Title Act and was tested in the High
Court…' [59]. The Committee's use of the phrase
'seen by many as' suggests some doubt over the succeeding statement (that
the State Government directly challenged the Native Title Act). There
need be no doubt. The WA Government sued the Commonwealth government seeking
court orders that 'the Native Title Act is outside the legislative powers
of the Commonwealth, and invalid'. [60] The WA Parliament
passed laws extinguishing all native title in WA [61]
(the WA laws were later ruled invalid). Unless the Committee is suggesting
there are alternative views on whether the WA Government directly challenged
the Native Title Act, views which if held at all are baseless, there is
little reason why the qualification 'seen by many as' should be included.

In various places the Report discusses the concepts and workings of the
NTA. Some of the Report's content suggests the Committee may have misunderstood
aspects of the NTA's operation, and I address each of these below to assist
the Committee in considering these points.

(a) The Report
states 'Before a grant, either conditional or unconditional, can be
made the application must be put into the NTA processes, either into
the expedited or the right to negotiate (RTN) processes' [62]
. This is wrong - a proposed grant need only comply with the NTA's future
act processes (including the expedited and RTN processes) where it may
affect native title. [63]

There are numerous
instances where non-Indigenous interests can be granted without following
the expedited or RTN processes. The most obvious example is where the
grant is to be made over land where native title cannot be recognised
(eg. freehold land, which includes the majority of land in south western
WA), but there are also numerous other types of interests that can be
granted without following the RTN or expedited processes.[64]
It is inaccurate to give the impression that before any grant is made
by Government, it must follow the RTN or expedited process under the
NTA. I suggest the Report be amended to reflect this.

(b) The Committee
presents native title as if it always involves intra-Indigenous disputes
and the main issue is to establish who are the appropriate Indigenous
people to 'speak' for an area of country. [65] This
is not the case: there are substantial areas of land in WA where there
is no dispute as to who are the relevant traditional owners of the land.
[66]

It appears, however,
that the Committee's emphasis on 'overlaps' leads it to conceive of
'native title issues' as mainly requiring resolution of who are the
recognised native title holders for an area before proceeding with proposed
developments. [67] Such an approach fails to appreciate
that Indigenous people have rights both as native title claimants (before
any Court decision has been made in relation to the land) [68]
and rights after native title has been determined (with the Court's
orders identifying the relevant land, group of people, and rights [69]).
Examples of native title determinations in WA include Mirriuwung
Gajerrong
[70], Spinifex People [71]
and Tjurabalan People [72]. In these cases,
the Court recognised the right of the Aboriginal party 'to make decisions
about the use and enjoyment of the land'. [73] On
land where the Court recognises these types of rights, future developments
will still need to follow the 'right to negotiate' and other relevant
NTA procedures.

(c) In several
places, the Report indicates that Indigenous people have, at best, a
right of notification or consultation in relation to proposed developments
offshore. [74]

This is not correct.
The NTA specifies that native title interests offshore have the same
procedural rights as they would have in relation to a proposed development
on the assumption that the claimants 'instead held any corresponding
rights and interests in relation to the offshore place that are not
native title rights and interests'. [75] Exactly what
this phrase requires is not clear [76]. In certain
circumstances, notification or consultation may be sufficient to satisfy
the procedural rights for offshore development. [77]
However the NTA also indicates that native title holders may have procedural
rights greater than mere notification and that these rights must be
observed. [78]

(d) The NTA's expedited
procedure has been mis-construed, by both the Committee and the Department
of Mineral and Petroleum Resrouces ('MPR'), in a manner that
favours development over non-Indigenous interests.

The NTA allows
government to use the expedited procedure only when it considers
[79] that the proposed activity is not likely
to (a) interfere directly with the community or social activities, (b)
interfere with significant areas or sites, and (c) involve major disturbance
of land.
[80] Contrary to this process, MPR uses
the expedited procedure in relation to any mineral tenement other than
mining leases. [81] Cases from the National Native
Title Tribunal ('Tribunal') show that MPR's policy is flawed
because numerous non-mining lease tenements have been adjudged inappropriate
for the expedited procedure. [82] What MPR should
be doing is following the NTA by considering tenement applications and
determining whether the expedited procedure is justified in each case
(and such justification is where the tenement only allows activities
[83] that are not likely to interfere with the relevant
community and sites and are not likely to be a major disturbance
to the particular land).

I recommend the
Committee carefully consider the proper operation of the expedited procedure
and re-examine its endorsement of the Technical Taskforce's approach.
[84] This would accord with the Committee's understanding
that 'the State Government has an explicit policy of working within
the Commonwealth statutory regime rather than to pursue its own native
title scheme'. [85]

(e) The Report
discusses the 'backlog' of mining tenements since the NTA commenced
in 1994. [86] What is not reflected in the Report,
however, is that most of the 'backlog' exists not because of the actions
or objections of Indigenous people, and not because of NTA procedures,
but because of MPR's actions. The Technical Taskforce study [87],
to which the Report refers, shows that over two thirds of the 'backlog'
comprise tenement applications that have not been submitted to the native
title process.
[88]

Neither the Report, nor the Technical Taskforce, explain why there is
such a large delay in submitting tenement applications to the native title
process. Certainly, the NTA's procedures established in 1994 (and amended
in 1998) require MPR to address extra matters before granting a tenement,
but the time periods for this processing are not prohibitive. [89]
The Technical Taskforce indicates the 'backlog' of applications withheld
from the native title process includes tenement applications over several
years. [90] Clearly, as has now happened, where a delay
in granting tenements builds up, this increases pressure to find some
way to enable those tenements to be granted, and in such a situation proposals
to limit Indigenous rights attract greater support. This is a matter the
Committee should carefully consider in finalising any recommendations
in relation to tenement processing or endorsing the Technical Taskforce's
recommendations.

4.2
Croker Island case

The
Report's analysis of the impact of the High Court's decision in Yarmirr
-v- Commonwealth
[91] ('Croker Island' case)
is inaccurate in several ways. The Committee's views are essentially repetitions
[92] of its description of the case on page 40 of the
Report:

Offshore, the recent
High Court decision in relation to the Croker Island Case has potentially
made things more complex for offshore mineral and petroleum exploration
and development as Aboriginal people may have the right to be consulted
as native title is a coexisting, rather than an exclusive title, but
the ramifications of the decision are yet to be fully revealed. Before
this decision it was generally believed that offshore activities fell
outside the NTA.

The
High Court decision in Croker Island has not changed the situation
'for offshore mineral and petroleum exploration and development'. From
January 1994, the NTA permitted native title claims to cover offshore
areas and specified that Indigenous people have procedural rights in relation
to these claims. [93] The initial decision in Croker
Island
was given in September 1998, legally recognising that Indigenous
people have native title rights in the sea. [94] The
High Court's decision in October 2001 simply confirmed the trial judge's
decision - there is no basis for the Committee's statement that before
the High Court's decision 'it was generally believed that offshore activities
fell outside the NTA'.

An
additional issue, however, is that the Committee followed the Technical
Taskforce [95] in adopting a limited analysis of the
Croker Island decision. The Committee states offshore native title
is a coexisting, rather than an exclusive title. This may not be correct
in all respects - the relevant part of the High Court's Croker Island
decision was that the particular claims made by the applicants (namely
they had a right to exclude all persons from the area) could not succeed
because of public rights to fish and navigate and the international right
of innocent passage.[96] I agree the High Court's reasoning
suggests native title rights to exclusive possession of the sea
cannot be recognised by Australian courts. However, the decision does
not mean the only native title rights that can be recognised in
the sea must be co-existing: exclusive aspects of native title sea rights
that are compatible with public rights (fishing, navigation or innocent
passage) were not ruled out by Croker Island. Take, for example,
the exclusive rights often included in native title claims to 'use and
enjoy resources of the area' or 'trade in resources of the area'. Provided
these rights do not impinge on public rights of fishing, navigation, or
innocent passage, there is no reason from Croker Island why these
native title rights cannot be recognised.[97] To further
illustrate the exclusive / non-exclusive distinction it may be useful
to consider a non-native title example: when a company gains an exploration
licence over land in WA, the company does not have exclusive possession
of that land, [98] but it does have various exclusive
rights in relation to that land .[99]

I recommend the Committee should re-consider its analysis of the Croker
Island
decision and native title rights offshore.

4.3
Interaction between native title and other development approvals

The
Committee encourages a 'whole of government' approach, [100]
with the benefits this brings in ensuring government decision-making across
all agencies is integrated and consistent. The Committee repeatedly emphasised
the importance of resolving native title issues by agreement, [101]
an approach which, when based on the free and informed consent of both
parties, is consistent with human rights principles. The problem is that
when the Report is read as a whole, there is a contradiction: the resolution
of native title issues by agreement (and the Committee's endorsement of
the Wand Report [102]) does not correspond with
the Committee's recommendations decreasing protection of native title
rights. [103] A whole of government approach should
be seeking to incorporate native title and effective Indigenous participation
into government decision making. This is in contrast to the Committee's
approach, which will encourage a development approval process operating
with little reference to, and in conflict with, separate government processes
dealing with 'native title issues'.

(a)
WA's Aboriginal heritage system

One of the issues
considered by the Committee is the role of the Aboriginal Heritage
Act 1972
(WA) ('AH Act') in development approvals. The Committee
is aware of anomalies in the AH Act's protection of Indigenous heritage
- the Report specifically acknowledges the racially discriminatory denial
of Indigenous rights under the AH Act. [104] In addition,
the Committee may wish to note the AH Act is based on a limited conception
of heritage and provides little enforcement of heritage protection.
[105] It is of concern, therefore, to find the Report:

(i) makes no specific
recommendation on improving Indigenous rights under the AH Act (by,
at least, granting them equal status to non-Indigenous rights); and

(ii) recommends
restricting Indigenous rights in other arenas [106]
leaving their 'protection' under the discriminatory AH Act.

If this outcome
(namely removal of Indigenous rights under various laws leaving reliance
only on heritage laws that discriminate against Indigenous people) arose
as a result of an oversight, [107] the Committee
may wish to alter its approach in any final report. However, if the
Committee intends such an outcome, this should be fully explained because
it is contrary to human rights principles.

The Committee's
recommendations in relation to Aboriginal heritage also addressed the
issue of heritage surveys. The Committee proposes that once a survey
is completed, this should be sufficient reference for all future activity
on that land.[108] There are practical and human
rights difficulties with such a suggestion. Often a mining tenement
covers a large area of land and so the company and relevant Indigenous
group agree to survey only the proposed work, resulting in that particular
proposal being cleared or modified depending on the location and importance
of sites. This enables the proposed work to commence with minimum time,
cost, and intrusion into Indigenous culture. To expect an entire tenement
or area of land to be 'audited' for Indigenous sites, regardless of
the proposed work at that time:

  • may be impossible because traditional owners are likely to have different
    concerns depending on what activity is being proposed on the land (aerial
    exploration or surveying may need no, or only few, areas to be avoided
    - whereas an intensive drilling program or construction of a mine will
    raise different heritage concerns); and
  • is
    inconsistent with developing human rights standards on Indigenous culture
    (which emphasise the right of Indigenous peoples to maintain and develop
    their own cultures and knowledge systems, and Indigenous peoples' ownership
    and custody of their heritage as collective, permanent and inalienable
    ).[109]

(b)
Environmental assessment

The
Committee notes the recent inclusion of Indigenous heritage in Government
environmental assessments as reinforcing the need for proponents to address
Indigenous heritage issues prior to commencing development.[110]
The Committee wants this situation changed by removing Indigenous heritage
as a matter considered in environmental assessments. [111]
As already noted, there are deficiencies in the AH Act, one of the main
ones being that a proponent can legally commence development without taking
any measures in relation to Indigenous heritage . [112]
Given the AH Act's shortcomings, Government procedures that reinforce
the need for proponents to address Indigenous heritage prior to commencing
development are to be encouraged. I urge the Committee against suggesting
changes to those procedures.

(c)
Processing of mineral tenements

The
Committee recommends that the Mining Act 1978 (WA) be amended so
the Mining Warden no longer has power to hear public interest objections
to the proposed grant of mineral tenements.[113] The
Committee does not recommend these public interest objections be entertained
in any alternative arena as a substitution for their removal from the
Warden's jurisdiction. [114] Public interest considerations
can include issues such as Indigenous rights and environmental concerns
(the latter are not a matter addressed in these submissions). I draw the
Committee's attention to its call for decisions adverse to development
needing to be addressed by 'some mechanism where the refusal…[to
allow development] can be tested in a fair and open manner' [115],
which contradicts the Committee's recommendation that Indigenous and environmental
matters be removed from being addressed by the Mining Warden.

The
Report considered the approval process in Queensland and New South Wales,
but made no mention of the Queensland's Statewide Model Indigenous
Land Use Agreement
[116] ('Model ILUA').
This document, representing a cooperative approach between the government
and Indigenous people in Queensland, acts as a basis for negotiations
over exploration on native title-claimed land. Where a company and claimant
group wish to use the terms of the Model ILUA to govern the relations
between them, they can agree to that, thereby saving time and money. However,
if the parties wish to conduct their own negotiations, they can do so
ignoring the Model ILUA. An approach similar to that of the Queensland
Model ILUA could be adopted to assist in relation to processing exploration
tenements in WA. That is, a generally agreed heritage arrangement (either
on a regional or Statewide basis) could exist as a baseline: where a claimant
group's concerns in relation to an expedited procedure tenement application
were satisfied by the regional agreement there would be no need to object,
but where a group's concerns were not met by the regional agreement, they
could still use the objection procedure.

4.4
Resourcing and negotiated outcomes

The
Committee acknowledges that NTRB's are inadequately resourced for the
functions required of them. [117] This has been noted
in various reports [118] and a Commonwealth parliamentary
inquiry[119] . Little, however, has been done. The
Committee states that the lack of funding has been acknowledged and refers
to additional funding, [120] but the Committee fails
to note this additional funding is not received by NTRB's to fulfil their
functions or that other main institutions in the native title system received
disproportionately greater funding increases. [121]

Quite
correctly, the issue of NTRB funding is not a main issue for the Committee.
However, it is of critical relevance to the Committee's work in the following
respect: if NTRB's are unable to properly perform their functions then
little progress can be expected on any matter dealing with native title
(including future act negotiations, resolving disputes between native
title claimants, required notifications to native title claimants, certifications
to permit arrangements to be registered with the Tribunal, or advice and
representation of claimants). [122] NTRB's, which assist
89% of all native title claims in Australia, [123]
are the primary institution to ensure effective input from native title
parties.

The
Committee commends an approach to resolve native title issues by agreement
rather than through litigation. [124] However the lack
of NTRB funding, together with disproportionately greater funding for
other institutions involved in the native title system, prohibits native
title parties from being able to effectively progress agreement with government
and developers over native title issues. [125] The
inability of NTRB's to progress agreed resolutions because of funding
shortages has been noted by developers [126] and the
Commonwealth Parliament, with their resultant calls for increased funding
to NTRB's. If the Committee genuinely embraces reaching agreed resolutions
of native title issues, it may wish to consider making a specific recommendation
on increased funding to NTRB's to allow them to perform their functions
under the NTA.

5. RECOMMENDATIONS

The
main thrust of these submissions is that the Committee must re-consider
its whole approach to Indigenous involvement in the approval system. The
Report states 'The proposals put forward seek to ensure that…native
title, planning and other checks and balances that serve the public interests
are not reduced'.[127] The Committee's statement here
does not correlate with the overall Report: these submissions have pointed
out various ways in which the Report's recommendations will reduce Indigenous
rights.

The
Committee may wish to consider the draft report recently released by the
Mining, Minerals and Sustainable Development Project in Australia. [128]
This report demonstrates the changing perception of how mining and minerals
development should occur in Australia:

Companies …
need to demonstrate that operations are established with the prior informed
consent of the local indigenous communities. This means fully informing
traditional owners on the implications of projects - and, where necessary,
enabling those owners to obtain independent advice - and resisting the
temptation to proceed by creeping, incremental concession. [129]

5.1
Report inaccuracies or misdescriptions

These
submissions have noted various parts of the Report that are wrong or inclined
to give an incorrect impression of native title rights. I summarise these
points below (references in brackets are to the relevant sections of these
submissions in which the point is discussed).

(a) The Committee
should amend its statement that all grants must be put into the NTA
processes to show that a proposed grant need only comply with the NTA's
future act processes where it may affect native title (section 4.1(a)).

(b) The Report's
discussion of offshore native title rights is inaccurate and should
be corrected (4.1(c)).

(c) The Committee,
if it is going to discuss the issue of a tenement 'backlog' following
the NTA's introduction, should explain why the backlog has occurred
(4.1(e)).

(d) The Report's
discussion of the Croker Island case is inaccurate and should
be re-assessed (4.2).

(e) The Committee
should not recommend removal of protections for Aboriginal heritage
(currently held under Commonwealth heritage laws, WA Mining Act objections,
and WA environmental assessment procedures) - recommendations that have
the effect of increasing dependency on the AH Act (4.3(a)-(c)).

5.2
The way forward

In
addition to suggesting particular changes to the Report, this submission
also suggests a number of principles that, if adopted, will change the
Committee's approach to Indigenous issues such as native title and Aboriginal
heritage. These areas can be summarised as follows.

(a) The Committee
should re-assess its approach to incorporate human rights and an Indigenous
perspective into the development approval process. Such an approach
would require the Committee to reassess its view of Indigenous participation
as an 'encumbrance' to the development process (3.4(a)&(b)). It
would also require the Committee to re- examine its case studies in
order to take account of the effect of WA's development approval processes
on Indigenous people (3.3).

(b) The Committee
should conceptualise native title as a pre-existing and unique interest
in land originating in the laws and traditions of Indigenous people
(4.1). Any land management system, including the development approval
system, needs to address the different cultural bases of native title
from that of non-Indigenous property interests, ensuring that both are
equally protected and enjoyed.

Because
native title is not conceptualised in this way, native title is not adequately
addressed in the Review. Rather than appreciating problems, such as overlapping
claims and identification of parties, as issues of cultural difference,
the Committee's approach appears to identify these and other native title
issues as encumbrances to development (3.4, 4.1). Consequently the Committee
prefers to direct native title out of the Review to other processes, such
as heritage processes or NTA processes. In so doing, the Committee ignores,
considers irrelevant or misconstrues the processes to which native title
has been relegated. In order to redress these consequences I suggest the
Committee re-assess the:

  • role
    and use of the NTA's expedited procedure (4.1(d));
  • consequence of limiting Indigenous heritage to the inadequate protection
    of the AH Act (4.3); and
  • reasons
    for mining tenement backlog in Western Australia (4.1(e)).

(c)
The Committee should consider recommending that 'corporate responsibility'
standards be incorporated into the development approval process (3.1).

(d)
The non-extinguishment principle should be adopted in relation to all
interests created in land that may be covered by a native title claim
(3.4(b)). Accordingly the Committee should recommend against the use of
compulsory acquisition of native title as a way of progressing developments.

(e)
The Committee should consider the approach of the Queensland Statewide
Model Indigenous Land Use Agreement
and consider its relevance for
WA (4.3(c)).

(f)
The Committee, if it wishes to endorse an approach to resolve native title
issues by agreement rather than litigation, should recommend increased
funding for NTRB's. (4.4).

(g)
The Committee should ensure effective participation in the Review process.
Where necessary this may require the Committee to approach relevant Indigenous
organisations for input, or fund these organisations to make a submission
(3.2).


1. Independent Review Committee, Review
of the Project Development Approvals System: Interim Report for comment,
Government of Western Australia, Perth, 2002 ('Report').

2.
s46C, Human Rights and Equal Opportunity Commission Act
1986 (Commonwealth) and s209, Native Title Act 1993 (Commonwealth) ('NTA').

3. Australia joined this treaty in September 1975.

4. Australia joined in December 1975.

5. Australia joined in August 1980.

6. Including the Universal Declaration of Human Rights
('UDHR') which was passed, by consensus, by the United Nations General
Assembly in 1948. The UDHR specifies basic human rights principles which
were, or have since become, recognised in international law.

7.
The NTA's preamble specifically confirms Australia's 'acceptance
of the Universal Declaration of Human Rights'. The Australian Government
has acknowledged the UDHR to be 'the foundation of the international human
rights system', Department of Foreign Affairs and Trade, Human Rights
Manual, Commonwealth of Australia, 1998 (2nd ed), p1.

8.
The human rights treaties identified in this paper are
implemented with the monitoring and assistance of treaty bodies, formed
from among the countries that have joined the relevant treaty. Guidance
on a treaty's interpretation and requirements can be taken from comments
and observations of the treaty bodies. These treaty bodies include the:
Committee on the Elimination of Racial Discrimination (CERD) which operates
under ICERD, the Committee on Economic, Social and Cultural Rights which
operates under ICESCR, and the Human Rights Committee which operates under
ICCPR.

9.
'A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty' Vienna Convention
on the Law of Treaties, to which Australia is a signatory, prohibits a
country from claiming that its internal law justifies failure to perform
a treaty', art 27 of Vienna Convention on the Law of Treaties (Vienna,
23 May 1969) AUSTRALIAN TREATY SERIES 1974 No 2.

10.
Under ICERD, Australia agreed to 'Undertakes to engage
in no act or practice of racial discrimination and to ensure that all
public authorities and public institutions, national and local, shall
act in conformity with this obligation. [Article 2.1(a)…and]…Shall
assure to everyone within their jurisdiction effective protection and
remedies, through the competent national tribunals and other State institutions,
against any acts of racial discrimination [Article 6].
The CERD Committee has further stated explained, 'Although the Commonwealth
government is responsible for ratifying international human rights instruments,
the implementation of their provisions requires the active participation
of the states and territories…', CERD Concluding Observations on
Australia, UN Doc: A/49/18, para 542.

11.
'[E]very individual and every organ of society …
shall strive to promote respect for these rights and freedoms and …
to secure their universal and effective recognition and observance', Preamble
to the UDHR which was passed by consensus by the UN General Assembly in
1948 (emphasis added).
The UDHR is binding on all members of the UN, through their acceptance
of the UN Charter, and is in any event part of customary international
law. '[T]he fact that there is no direct way to enforce in a tribunal
the exhortation in the Universal Declaration aimed at "organs of
society", does not by itself remove its potential binding effect.
The lack of a procedure to enforce a right should not be confused with
whether the substantive right or obligation exists', International Council
on Human Rights Policy, Beyond Voluntarism: Human rights and the developing
international legal obligations of companies, Geneva, 2002, p59.

12.
Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856)
Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian
Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth
(1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes
7th Ed, 1929, at 127.

13.
Parliament is intended to legislate in accordance with
its international obligations (Dietrich v The Queen (1992) 177 CLR 292
at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs
and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J). Where there
is ambiguity, statutes should be interpreted in ways that accord with
the obligations of Australia under an international treaty (Chu Kheng
Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992)
176 CLR 1 at 38 per Brennan, Deane and Dawson JJ). Note that in recent
cases the High Court has indicated that a narrow conception of ambiguity
is to be rejected: Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v
Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally
A Simpson and G Williams, "International Law and Constitutional Interpretation"
(2000) 11 Public Law Review 205 at 208; J Spigelman, "Access to Justice
and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

14.
s7(2), NTA.

15.Article
17 of the UDHR, states 'Everyone has the right to own property alone as
well as in association with others'. Article 5 of ICERD provides: '…States
Parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction
as to race, colour, or national or ethnic origin, to equality before the
law, notably in the enjoyment of the…right to own property alone
as well as in association with others'.

16.
Mabo v Queensland (1992) 166 CLR 186.

17.
The Human Rights Committee, in relation to minority and
Indigenous rights under ICCPR explained that countries joining ICCPR must
take steps to protect those rights: 'With regard to the exercise of the
cultural rights protected under article 27, the Committee observes that
culture manifests itself in many forms, including a particular way of
life associated with the use of land resources, especially in the case
of Indigenous peoples... The enjoyment of those rights may require positive
legal measures of protection', General Comment 23 The rights of minorities,
8 April 1994, para 7.
Judge Tanaka of the International Court of Justice stated, in the South
West Africa case, that 'The principle of equality before the law does
not mean the absolute equality, namely the equal treatment of men without
regard to the individual, concrete circumstances, but it means the relative
equality, namely the principles to treat equally what are equal and unequally
what are unequal... To treat unequal matters differently according to
their inequality is not only permitted but required', (1966) ICJ Rep 6,
pp303-305.

18.
The requirement of substantive equality in relation to
the protection of Indigenous peoples' property rights has been further
clarified by CERD, which explained that countries in ICERD must 'protect
the rights of Indigenous peoples to own, develop, control and use their
communal land, territories and resources' CERD General Recommendation
XXXIII The rights of indigenous Peoples, 18 August 1997, para 5. This
is contained in the UNGA document Report of the Committee on the Elimination
of Racial Discrimination (UN document A/52/18), 26 September 1997, annex
V.

19.
See Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2000 Human Rights and Equal Opportunity
Commission, Sydney, 2001, p171.

20.
ICERD article 5(c) emphasises the need for countries
to 'guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law, notably in the
enjoyment of...Political rights, in particular the right...to take part
in the Government as well as in the conduct of public affairs at any level
and to have equal access to public service'.

21.
CERD General Recommendation XXIII The rights of indigenous
Peoples, op.cit., para 4(d).

22.
'Concern is expressed at the [Australian government's]
unsatisfactory response to… [previous decisions] of the Committee
and at the continuing risk of further impairment of the rights of Australia's
indigenous communities. The Committee reaffirms all aspects of its decisions
2 (54) and 2 (55) and reiterates its recommendation that the State party
should ensure effective participation by indigenous communities in decisions
affecting their land rights, as required under article 5 (c) of the Convention
[ICERD] and General Recommendation XXIII of the Committee, which stresses
the importance of securing the "informed consent" of indigenous
peoples. The Committee recommends to the State party to provide full information
on this issue in the next periodic report', Concluding Observations by
the Committee on the Elimination of Racial Discrimination: Australia (UN
document CERD/C/304/Add.101), 9 April 2000, para 9.

23.
The UDHR states 'Everyone is entitled to a social…order
in which the rights and freedoms set forth in this declaration can be
fully realized' article 28. In 1986, the General Assembly passed the Declaration
on the Right to Development (UN document A/RES/41/128), 4 December 1986.
The United States of America was the only country who voted against the
declaration, but seven years later (at the 1993 World Conference on Human
Rights), the USA joined with all governments, including Australia, in
'reaffirm[ing] the right to development, as established in the Declaration
on the Right to Development, as a universal and inalienable right and
an integral part of fundamental human rights', Vienna Declaration and
Program of Action (UN document A/CONF.157/23), 12 July 1993, article 10.

24.
Article 1 of the Declaration on the Right to Development,
op.cit.

25.
Hamm, B., 'A Human Rights Approach to Development' (2001)
Human Rights Quarterly Vol 23, No 4 (November 2001), John Hopkins University
Press, p1005 at 1010.

26.
UN Development Programme, Human Development Report 2001:
Making new technologies work for human development Oxford University Press,
New York, 2001, p9.

27.
The UNGA resolution states 'Economic development, social
development and environmental protection are interdependent and mutually
reinforcing components of sustainable development ... [R]espect for all
human rights and fundamental freedoms, including the right to development,
transparent and accountable governance in all sectors of society, as well
as effective participation by civil society, are also an essential part
of the necessary foundation for the realization of social and people-centred
sustainable development' (UN document A/RES/s-19/2), 19 September 1997,
para 23.

28.
See also Rio Declaration on Environment and Development
(12 August 1992) UN document A/CONF.151/26 (Vol.I), principles 1 &
3; Declaration on the Right to Development (4 December 1986) UN document
A/RES/41/128, articles 1-3, 5, 6, 8; and Declaration on Social Progress
and Development (11 December 1969) UN General Assembly resolution 2542
(XXIV), principles 1, 2 and 5.

29.
These statements are drawn from the conclusions of the
most recent meeting of Open-Ended Working Group on the Right to Development
which reports to the UN Commission on Human Rights (UN document E/CN.4/2001/26),
20 March 2001, para's 179-180. The Chairperson, who drafted the conclusions,
noted the Australian government was not able to join the emerging consensus
on some elements of the text. The Australian Government, along with other
countries, provided submissions which are annexed to the Working Group's
report (op cit, Annex III, para's 27-41), noting its disagreement with
the Chairpersons' summary of the meeting.

30.
The first article of both covenants states '1. All 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. 2. All peoples may, for their own ends, freely
dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case
may a people be deprived of its own means of subsistence'.

31.
UN Doc CCPR/CO/69/AUS, para9.

32.
ICCPR's article 27 states 'In those States in which ethnic,
religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language'.

33.
'[C]ulture manifests itself in many forms, including
a particular way of life associated with the use of land resources, especially
in the case of Indigenous peoples', Human Rights Committee General Comment
23 The rights of minorities, op.cit., para 7. The report Indigenous people
and their relationship to land, accepted by the UN's Sub-Commission on
Human Rights, notes 'States must respect and protect the special relationships
that indigenous peoples have to lands, territories, and resources…',
(UN document E/CN.4/Sub.2/2001/21), 11 June 2001, para 144(g). The Sub-Commission
referred the report to the UN Commission on Human Rights for its consideration
in 2002: (UN document E/CN.4/SUB.2/DEC/2001/109), 15 August 2001.

34.
'A State may understandably wish to encourage development
or allow economic activity by enterprises. The scope of its freedom to
do so is not to be assessed by reference to a margin of appreciation,
but by reference to the obligations it has undertaken in article 27. Article
27 requires that a member of a minority shall not be denied his right
to enjoy his culture. Thus, measures whose impact amount to a denial of
the right will not be compatible with the obligations under article 27.
However, measures that have a certain limited impact on the way of life
of persons belonging to a minority will not necessarily amount to a denial
of the right under article 27', comments of Human Rights Committee in
Länsman v Finland (UN document CCPR/C/52/D/511/1992), 8 November
1994, para 9.4.

35.
In its General Comment on article 27 of the ICCPR, the
Human Rights Committee stated 'With regard to the exercise of the cultural
rights protected under article 27…The enjoyment of those rights may
require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions
which affect them', General Comment 23 The rights of minorities, 8 April
1994, para 7.

36.
'The right to enjoy one's culture...has to be placed
in context... [ICCPR] article 27 does not only protect traditional areas
of livelihood of national minorities. ...[Cultural practices] may have
adapted their methods...over the years and [now be] practiced...with the
help of modern technology [which] does not prevent them from invoking
article 27 of the Covenant', finding of the Human Rights Committee in
Länsman v Finland, op.cit., para 9.3.

37.
CERD General Recommendation XXXIII Indigenous Peoples,
op.cit., para 4(c).

38.
The 1998 amendments to the NTA (in particular the provisions
on validation, confirmation, primary production and right to negotiate)
have been criticised by three treaty bodies: Committee on the Elimination
of Racial Discrimination (see UN document CERD/C/304/Add.101, 24 March
2000), the Human Rights Committee (UN document CCPR/CO/69/AUS, 28 July
2000), and the Committee on Economic, Social and Cultural Rights (UN document
E/C.12/1/Add.50, 1 September 2000). See also International Review of Indigenous
issues in 2000: Australia available on Human Rights and Equal Opportunity
Commission web-site <www.humanrights.gov.au/social_justice/nt_issues/index.html&gt;
(accessed 16 December 2001).

39.
Report, p123 (emphasis added).

40.
'BHP Billiton endorses the principles set out in the
Universal Declaration of Human Rights and will support the fundamental
human rights of…communities in which we operate. BHP Billiton has
full responsibility for meeting human rights standards for those operations
over which it has control', BHP Billiton, Guide to Business Conduct, 2001,
p12.

41.
The Rio Tinto mining group 'have adopted a formal policy
on human rights based on our support for the United Nation's Universal
Declaration of Human Rights', Rio Tinto website <http://www.riotinto.com/community/humanRights/default.asp&gt;
accessed 1 November 2001.

42.Report,
pp123-124.

43.
Letter from Committee to Mr Clive Brown, Minister for
State Development, 11 January 2002 - copy in second page of Report.

44.
Appendix 3 of the Report (pp125-126) lists the submissions
made.

45.
Although I know little of the situation in Western Australia,
I note four possible 'case studies' the Committee may wish to research
to better understand the impact that development approval processes may
have on Indigenous people.

(a) Noonkanbah
is a pastoral station in the Kimberley region. The pastoral lease was
purchased for the local Aboriginal Yungngora community in 1976. After
its purchase, and as part of the resource development and exploration
in the Kimberley region in the late 1970's, various mineral tenements
were sought by companies over Noonkanbah station. One company wanted
to conduct oil exploration drilling in an area assessed by the WA Government's
Aboriginal Sites Department as containing significant Aboriginal sites.
The community did not want the exploration work to occur. The disagreement
attracted considerable attention and the Government sought to negotiate
a resolution, but the community remained opposed to the exploration
work. The Government then used police to forcibly remove Aboriginal
people seeking to protect their land from the drilling. The Government's
explanation of the main reasons for its involvement in Noonkanbah show
a preference for non-Indigenous rights over Indigenous rights:
Firstly, because the lawful right to explore on Noonkanbah was unlawfully
obstructed.
Secondly, because the search for petroleum was and is of national importance,
and the national interest demands that it must not be unreasonably obstructed.
Thirdly, because obstruction at Noonkanbah was clearly intended to become
a precedent for further obstruction over vast areas of the State that
would have gravely disrupted essential exploration, as well as denying
many people their lawful rights.
Fourthly, because the obstruction was carried out with the clear intention
of challenging, and even replacing, the lawful authority of elected
government.
Finally, because the community of Western Australia clearly wanted lawful
order maintained on an even-handed basis, without privilege for any
- on grounds of race, or for any other reason.
The drilling went ahead, but with unfavourable results, and no further
development occurred.
[Information from The Drilling at Noonkanbah: A Report to Parliament
by the Premier of Western Australia, incorporated into Hansard by leave
of the Legislative Assembly, Hansard, Assembly, Friday, 28 November
1980, 4282; Hawke, S & Gallagher, M, Noonkanbah: Whose land, Whose
law Fremantle Arts Centre Press, Perth, 1989; and Ritter, D, Charles
Court and the fulcrum of Noonkanbah, paper delivered at "Sir Charles
Court in Western Australian history: a conference on his life and politics",
Curtin University of Technology, 20 September 2001]
(b) In the late 1980's, the government was seeking to develop land on
the Swan River in Perth. Although some of the land had previously been
used by the Swan Brewery, half of the land on which the development
was to occur was unallocated Crown land: Bropho -v- Western Australia
(1990) 171 CLR 1 ('Bropho') at para 3 of decision of Mason CJ, Deane,
Dawson, Toohey, Gaudron and McHugh JJ ('Majority'). Indigenous sites
were located on this land, which had been registered under the Aboriginal
Heritage Act 1971 (WA). The Heritage Act had been passed by the Western
Australian parliament to protect and preserve Indigenous places and
objects and made it an offence for a person to disturb such a site.
The Government accepted its proposed work would disturb Aboriginal sites:
'It is common ground that that conduct [proposed development] would,
but for the claimed inapplicability to the Crown of the relevant statutory
provisions, have contravened the provisions of s.17 of the Act [making
it an offence to disturb Aboriginal sites]', Bropho, Majority paragraph
8. However the Government considered the Heritage Act didn't apply to
it and commenced the development. The High Court ruled against the Government,
stating that, just as the AH Act applied to businesses and individuals,
the Government also had to comply with it: Bropho, Majority paragraph
23.
(c) In the early 1990's the Government negotiated with the Karijini
Aboriginal Corporation over joint management of the Karijini National
Park, which is located near Tom Price. The Government agreed to Karijini
Aboriginal Corporation being involved in jointly managing the park and
both parties commenced work toward a new draft management plan. At the
same time, the Government was negotiating with Hamersley Iron over mining
on land in the park. In November 1990, the Government decided to excise
land from the middle of the park (effectively creating two parks) to
allow a mine and infrastructure corridor to be developed, with only
those parts not required for development to be liable to control under
park management. The Government decision subsequently formed the Reserves
and Land Revestment Act (No 2) 1990 (WA), s5. In February 1992, the
Parliament passed an Act stating that the mine and infrastructure area
would not need to comply with WA's Aboriginal heritage laws: 'The Aboriginal
Heritage Act 1972 does not apply to any place that is on land described
in Part 1 of Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule
3, or to any object situated on or under any of that land [land for
the mine and associated infrastructure]', Aboriginal Heritage (Marandoo)
Act 1992 (WA), s3.
[Information from Western Australia: The 'Award Winning Model' in Woenne-Green,
S and o'rs, Competing Interests Aboriginal Participation in National
Parks and Conservation Reserves in Australia: A Review, Australian Conservation
Foundation, Melbourne, 1992, pp172-232.]
(d) After the Mabo decision in 1992, the WA Government adopted a negative
attitude to native title and in 1993 introduced legislation extinguishing
all native title and substituting lesser rights that could be suspended
by the government. The High Court unanimously ruled that the WA statute
was invalid because it breached Commonwealth racial discrimination laws
in treating Indigenous rights differently from non-Indigenous rights.
The High Court also ruled against the WA government's challenge to the
constitutional validity of the NTA arguing it was outside of the Commonwealth's
power and exceeded the federal nature of the Constitution. Notwithstanding
its various unsuccessful attempts to avoid the NTA, the WA Government
granted various land interests contrary to the NTA procedures, which
had to be subsequently validated as part of the 1998 amendments. More
recently, the Government repeated history in granting mineral interests
contrary to the NTA procedures under its 'Ward Policy' where applicant
companies who satisfied government officials that the tenement is on
pastoral lease land that has been enclosed or improved.
[Information from Goot, M 'The Wild West? Yes, no and maybe' in Make
a Better Offer: The Politics of Mabo, Pluto Press, Sydney, 1994, p194-202;
Land (Titles and Traditional Usage) Act 1993 (WA); Western Australia
-v- Commonwealth (1995) 183 CLR 373; and Bartlett, R, Native Title in
Australia, Butterworths, Sydney, 2000, para's 5.6-5.8]

46.
Report, p59.

47.
Mabo (No 2).

48.
Evidence of Wensing, E (Australian Local Government Association)
to Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund, Official Committee Hansard, 9 November
2000, pp NT27-28.

49.
Report, p74.

50.
The quote is located in the following discussion 'The
length of time and complexity in obtaining title to, or over, land where
native title exists is a significant present weakness. For an international
investor, used to being able to easily obtain land titles on an unencumbered
basis, the present requirement on the proponent to negotiate with Aboriginal
groups that only have untested claims to hold native title is met with
a mixture of amazement and disbelief. … [T]his lack of ability by
the State to provide unemcumbered land is a major weakness in efforts
to attract investment that has location alternatives. … With globalisation
bringing concentration of resource ownership, it is not sensible to allow
obstacles to be placed before the owner of a resource, as that owner may
have alternatives elsewhere, where land is not an issue', Report, p59.

51.
'Native title rights and interests must be understood
as what has been called "a perception of socially constituted fact"
as well "comprising various assortments of artificially defined jural
right". And an important aspect of the socially constituted fact
of native title rights and interests that is recognised by the common
law is the spiritual, cultural and social connection with the land', Yanner
-v- Eaton (1999) 201 CLR 351 at 373 per Gleeson CJ, Gaudron, Kirby and
Hayne JJ.
'[I]n determining the existence of native title and in defining its content,
a flexible and broad approach should be taken to ensure that the native
title recognised truly reflects the claimant group's traditional connection
to its land. It would be erroneous to endeavour to give content to that
connection, and the rights and interests that flow from it, simply by
reference to some supposed or analogous common law counterpart to those
rights and interests', Rubibi Community & ano'or -v- Western Australia
& o'rs [2001] FCA 607, paragraph 32.

52.
'Where a mineral or petroleum processing activity…was
undertaken off the [mineral] lease or licence area, land title would have
to be obtained. …[Where this involves freehold land, native title
would not be involved, but in all other cases] the land would be obtained
from the Crown through the LAA [WA's Land Administration Act 1977] processes…the
right to negotiate processes would have to be completed before all the
interests in the land could be resumed under the LAA and the land made
available to the proponent', Report, p14
'The NTA provides for Aboriginal people to claim native title and sets
out a process for negotiation and compensation where the State proposes
to release land or issue a mining or petroleum title. The Department of
Land Administration (DOLA) carries out historical land searches to determine
whether native title may exists. If native may exist, DOLA undertakes
referrals and processes required by the NTA where land is to be resumed',
Report, p34.

53.
NTA, s24MD(2)(c). Note, however, that in the uncommon
case where compulsory acquisition does not acquire all non-Indigenous
interests, native title rights may be preserved: s24MD(3).

54.
Nowhere has it ever been the case in Australian law that
non-Indigenous interests, validly created by government, are extinguished
by native title rights. In Mabo, in the Native Title Act, in Wik and all
subsequent court decisions, the law is that validly created non-Indigenous
rights over-ride native title rights to the extent of any inconsistency:

  • In Mabo, a majority ruled 'A Crown grant which vests in the grantee
    an interest in land which is inconsistent with the continued right to
    enjoy a native title in respect of the same land necessarily extinguishes
    the native title', per Brennan J at p68. Mason CJ and McHugh J agreed
    (p15) and Dawson J's judgement, in denying native title rights existed
    to affect any crown grant (eg. p149), arrives at the same result.
  • The NTA validated 'past acts' (which include legislation, grants of
    interest in land, and any other actions that have legal effect before
    mid 1993: ss226-228) of the Commonwealth (s14) and allowed State and
    Territory governments to validate their past acts (s19). All States
    and Territories have done so - Western Australia in part 2 of the Titles
    (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
  • In Wik Peoples & o'rs -v- Queensland & o'rs (1996) 187 CLR 1,
    a majority of the High Court explained 'To say that the pastoral leases
    in question did not confer rights to exclusive possession on the grantees
    is in no way destructive of the title of the grantees', Toohey J (with
    whom Gaudron, Gummow and Kirby JJ concurred on this point - CLR p189-190).
  • Following Wik, the NTA was amended to validate various government acts
    that had created interests contrary to the original NTA provisions:
    ss23B and 23F. This had the effect of preferring non-Indigenous interests
    over native title rights.

55.
Where the government creates a future interest, by granting
mineral or land use rights in land under native title claim, if that future
interest has been validly created then native title rights do not impair
that interest. Indeed, the interest prevails over any inconsistent native
title rights: NTA, s44H.

56.
NTA, s238.

57.
NTA, s44H.

58.
Report, p59.

59.
The context of the quote indicates the Committee is considering
only 'non-Indigenous title': 'The length of time and complexity in obtaining
title to, or over, land where native title exists is a significant present
weakness. For an international investor, used to being able to easily
obtain land titles on an unencumbered basis, the present requirement on
the proponent to negotiate with Aboriginal groups that only have untested
claims to hold native title is met with a mixture of amazement and disbelief',
Report, p59 (emphasis added).

60.
'The State Government indicated its intention to release
mining tenements over areas in pastoral leases where it could be "satisfactorily
demonstrated that native title had been extinguished" … Regrettably,
the States application of this policy has been both secretive and haphazard.
As a result it appears clear that the State is granting tenements where
native title has not been extinguished, without having regard to the due
process of the native title act. This is likely to render the tenement
in question invalid and raises significant problems for the future of
the minerals industry in Western Australia', Yamatji Land and Sea Council,
Backgrounder, November 2000, p1.
'WA has…been at the forefront of a sustained political attack on
the Commonwealth Native Title Act, and has used valuable taxpayer dollars
to fight, unsuccessfully, native title. … [A 1997 WA Parliamentary
Committee recommended WA adopt an agreement-based approach to native title]
Despite this, legislative attempts to abolish or severely diminish native
continue to be made. The latest example of the Native Title (State Provisions)
Bill which severely limits Aboriginal people's native title rights in
relation to pastoral leasehold land - rights confirmed by the High Court
in the Wik case - by taking away out rights to negotiate and replacing
them with lesser consultation procedures. Another manifestation of the
current approach is the Titles (Validation) and Native Title (Effect of
Past Acts) Bill, which was recently passed by State Parliament. This Bill
unnecessarily extinguishes native title on many areas of land. These examples
explain will Aboriginal people reject the current approach, and always
will. Under all its legislative guises, this approach amounts to rejection
of our culture and way of life', WAANTWG, Reaching Agreement: A better
approach to native title in Western Australia, 1999, Perth, pp3-4.
'[O]utcomes from the Native Title Act have been slow and piecemeal. They
have also been expensive, time consuming and, in some respects, deeply
divisive for some Aboriginal communities. In large part, these difficulties
have been caused by State and Federal governments choosing to litigate
claims at every possible step in the process', ATSIC Commissioner Jenny
Pryor speech at the Native Title Representative Bodies Legal Conference,
Townsville, 28 August 2001.

61.
The phrase 'native title' is defined in the Act as 'the…rights
and interests of Aboriginal peoples or Torres Strait Islanders in relation
to land or waters… [which rights and interests] are possessed under…[Indigenous]
laws [and] customs': s223, with the additional requirements that the particular
native title claimants must have connection with the relevant land/waters,
and the rights must also be recognised by Australian common law.

62.
NTA, s3. The remaining three 'main objects' of the NTA
are about establishing procedures for dealing with native title issues.

63.
Report, p58.

64.
WA -v- Commonwealth (1995) 183 CLR 373 at 377-378.

65.
Section 3 of the Land (Titles and Traditional Usage)
Act 1993 (WA), now repealed.

66.
Report, p12.

67.
NTA, s24AA(1).

68.
The NTA allows various non-Indigenous interests to be
granted without complying with the RTN process: s24FA (future acts where
procedures indicate absence of native title); s24GB (acts permitting primary
production on non-exclusive agricultural or pastoral leases); s24GD (acts
permitting off-farm activities directly connected to primary production
activities); s24GE (granting rights to third parties etc. on non-exclusive
agricultural or pastoral leases); s24HA (management of water and airspace);
s24IA (acts involving renewals and extensions etc. of acts); s24JA (acts
involving reservations, leases etc.); s24KA (acts involving facilities
for services to the public); and s24LA (low impact future acts).

69.
'A common theme in the submissions to the Committee was
concern over the difficulties proponents encountered through the native
title processes. One area of particular difficulty was the uncertainty
over who held native title, which could result in a proponent having to
deal with multiple claimants under the NTA processes', Report, p44.
'[T]he Committee welcomes the Wand Report and anticipates that its outcome
and implementation of the government's response will do much to overcome
the uncertainty in relation to who holds native title over land. The removal
of this uncertainty can only be of benefit to the efficiency and effectiveness
of the approvals process operating in the State', Report, p44.
'Native title over land is seen by investors as an internal issue, to
be sorted out internally, and not something to be done by the proponent',
Report, p59.

70.
Although there are areas of exception, the majority of
overlapping native title claims are located in the south-western third
of WA's land with the remainder of the State's land covered by either
no claim or one claim: Wand, P & Athanasiou, C, Review of the Native
Title Claim Process in Western Australia, WA Government, 2001, appendix
7 (map).

71.
'The Native Title Act has been a further constraint on
the facilitation value of Agreements. Previously the State was able to
promise to issue all tenures following approval of proposals. The reality
now is that it can only promise to do this is native title issues are
resolved', Report, p42.
'[T]wo main issues dominate the approvals system: land tenure and the
environment. … Because of the importance of both access to land and
the ability to construct, other approvals would normally wait on the completion
of the requirements of the NTA and the EP Act. Also, in most circumstances,
the NTA processes would have to be completed before a proponent would
have the confidence to seek final environmental approval', Report, p8.

72.
Various rights of native title claimants are specified
in division 3 of the NTA.

73.
Required by NTA, s225.

74.
(2000) 170 ALR 159.

75.
[2000] FCA 1717.

76.
[2001] FCA 1140.

77.
eg. Mirriuwung Gajerrong, Court Order 5(b). In Tjurabalan
People, Court order 4(i)(d) recognised a right 'to control access to,
and activities conducted by others on, the land and waters of the Determination
Area'.

78.
'Native title is considered to be a co-existing title
in offshore areas and consultation only is required', Report, p13.
'[F]ollowing the recent native title determination in the Croker Island
Case, it is likely that Aboriginal people will have a right to notification
and this could affect offshore licence applications in future', Report,
p41.

79.
NTA, s24NA(8).

80.
'The application of these procedural rights in uncertain
because there are no 'corresponding rights and interests'. Offshore common
law native title rights and interests are unique and not necessarily subject
to the degree of reservation, restriction and limited duration attaching
to other offshore rights and interests', Bartlett, R, Native Title in
Australia, Butterworths, Sydney, 2000, paragraph 18.61.

81.
NTA, s24NA(9).

82.
NTA, s24NA(10).

83.
NTA, s29(7).

84.
NTA, s237.

85.
Technical Taskforce on Mineral Tenements and Land Title
Applications, Final Report, Western Australian Government, Perth, 2001
('Taskforce Report'), p157.

86.
Examples of recent cases include Freddie -v- Western
Australia & Povey (19 December 2001, Member Stuckey-Clarke), Velickovic
-v- Western Australia & o'rs (8 June 2001, Member Franklyn), and Young
on behalf of the Ngadju People -v- Western Australia & South Coast
Metals (7 June 2001, Member Sosso).
There are also many cases where, after the native title party has had
to prepare and lodge an objection to the expedited procedure, the tenement
application has been withdrawn or the expedition notice dropped. This
indicates either the government or applicant did not want, or was unable
to justify, that tenement's proceeding under the expedited procedure.
Recent cases of this type include Gulngarring & Luwanbi on behalf
of the Warai -v- Northern Territory of Australia & o'rs (19 December
2001, Member Sosso), Johnny & o'rs for the Kunapa/Kurtinja/Mangirriji
and Kunakiji/Lurrkunu Peoples -v- Northern Territory & Rio Tinto Exploration
(28 November 2001, Member Franklyn), and Lansen on behalf of the Mara,
Alawa,Yanyuwa and Gurdanji Peoples -v- Northern Territory & North
Mining Limited (22 October 2001, Member Sumner).

87.
The question of whether a tenement properly falls within
the expedited procedure focuses on the full range of rights permitted
under the tenement, and is not decided only by considering the applicant's
proposed activity on the tenement: Dann -v- Western Australia (1997) 74
FCR 391.

88.
'This Committee supports the approach taken in the recommendations
in the Technical Taskforce's Report. … The review endorses the Technical
Taskforce recommendations on the use of ILUAs and regional heritage agreements…as
effective means to assist in expediting the grants of permits and leases',
Report, pp 45 & 88.
The problem is that the Taskforce aligned itself to MPR's flawed policy
by characterising the expedited procedure as a process where the government
simply asserts expedition and then the onus is on Indigenous people 'who
believe the proposed…activities will have a significant impact on
native title rights and interests', Taskforce Report, p40.

89.
Report, p3.

90.
Report, pp39, 44, 45.

91.
Taskforce Report.

92.
7,428 from a total of 11,081 'pending tenements', or
67%, are 'awaiting submission to the NTA process' (figures compiled from
Taskforce Report appendices 8-14).

93.
The Taskforce notes that processing a tenement application
through the expedited procedure (where there has been objection) takes
around six months (Taskforce Report, p40). National Native Title Tribunal
('Tribunal') statistics indicate that, nationally, nearly 70% of expedited
procedure applications are not objected to, allowing the relevant tenements
to be granted within six months (Neate, G, Native Title and Mining Industries
In Australia: Meeting The Challenges And Pursuing The Possibilities, Paper
delivered at Australian Mining Seminar Australia House London, 7 February
2001, pp23-24).
Where a tenement goes through the longer negotiation procedure there is
a six month period for 'good faith' negotiation and, if no agreement is
reached and the Tribunal is asked to arbitrate, a decision is required
within a further six months (Taskforce Report, p43).

94.
MPR currently has over 7,400 tenement applications which
are awaiting submission to the native title system (Taskforce Report,
appendices 8-14). The Taskforce explained about 3,500 tenement applications
are received by MPR each year, with around 100 applications entering the
'backlog' each month (Taskforce Report, p39). Arithmetic shows that if
only 3,500 applications are made each year, a figure of 7,428 could not
be reached until several years' applications have been withheld from the
native title process.

95.
[2001] HCA 56 (11 October 2001) ('Croker Island Case').

96.
Report, pages 41, 61 and 96.

97.
The following sections are from the NTA prior to the
amendments in 1998: s223(1) explained that native title rights and interests
means Indigenous interests 'in relation to land or waters' (emphasis added);
s61 provides that Indigenous people may lodge a claim in relation to their
native title rights and interests; and s23(6) specifies procedural rights
in relation to offshore native title. The procedure under the NTA after
the 1998 amendments are addressed in section 4.1(c) of these submissions.

98.
Mary Yarmirr & o'rs -v- Northern Territory and o'rs
[1998] FCA 1185.

99.
The Taskforce stated, in relation to the Croker Island
Case: 'The decision confirmed that while native title can exist off-shore
it can only be non-exclusive. The decision means that whilst the right
to negotiate does not apply there may be procedural rights to be complied
with', Taskforce Report, p64.

100.
'[T]here is a fundamental inconsistency between the
asserted native title rights and interests and the common law public rights
of navigation and fishing, as well as the right of innocent passage' and
'[The Commonwealth's] sovereignty...is not consistent with the continuation
of a right in the holders of a native title to the area for those holders
to say who may enter the area', joint judgment of Gleeson CJ, Gaudron,
Gummow and Hayne JJ, Croker Island, para's 98-99 (emphasis added).

101.
Accordingly, an exclusive right to control the use of
resources under the sea-bed doesn't contravene the Yarmirr reasoning.
The High Court indicated that infrastructure, which would be needed to
exploit under-sea resources, is not inconsistent with public rights of
fishing, navigation and innocent passage: '[N]either the public right
to navigate, nor the right of innocent passage, require free access to
each and every part of the territorial sea', joint judgment of Gleeson
CJ, Gaudron, Gummow and Hayne JJ, Croker Island, para 96.

102.
Mining Act 1978 (WA), s66(a).

103.
see, eg., Mining Act 1978 (WA), s155 combined with ss18,
66, 67, 76, and 117.

104.
Report, pp43-45. The Committee's terms of reference
also specify the Review's outcome to be for 'a system of government decision
making which is co-ordinated and integrated [and] balanced between community
and developer needs', Report, p123.

105.
'A move away from the adversarial approach when dealing
with native title towards an approach based on conciliation and negotiation
can be expected to contribute significantly to a more timely processing
of project approvals where these have native title implications', Report,
p87.
'The State should encourage and promote the use of agreements - protocols,
regional heritage agreements, memoranda of understanding and Indigenous
Land Use Agreements - as part of moving towards greater use of agreement
to resolve native title issues', Report, p89.

106.
'[T]he Committee welcomes the Wand Report and anticipates
that its outcomes and implementation of the government's response will
do much to overcome that uncertainty in relation to who holds native title
over land', p44.

107.
'[I]t is not sensible to allow obstacles to be placed
before the owner of a resource, as that owner may have alternatives elsewhere,
where land is not an issue', Report, p59.
'The Mining Act should be amended to ensure that environmental objections
[arising through the provisions for 'public interest' objections, which
also permit Indigenous objections in the court] are not heard by the Warden's
Court', Report, p85.
'The EP Act should not be used to duplicate, and should be amended if
necessary to remove the duplication of any functions of the Aboriginal
Heritage Act and protection of sites should be entirely through that Act',
Report, p86.
'The Mining Warden should only deal with matters and objections that relate
to the provisions of the Mining Act, and the Mining Act should be amended
to make this explicit', Report, p96.
'The State should open negotiations with the Commonwealth to mesh the
State Aboriginal Heritage Act with the Commonwealth Aboriginal and Torres
Strait Islander Heritage Protection Act such that a Section 18 clearance
under the State Act entirely satisfies the protection requirements of
the Federal legislation in relation to the land which is the subject of
the clearance', Report, p89.

108.
Section 18 of the AH Act allows a person to destroy
an Indigenous site if the Minister has approved that occurring. The Committee
notes that 'Under the AH Act, an owner of land can appeal [to the Supreme
Court] the Minister's decision regarding a Section 18 application, however,
the legislation provides Aboriginal people with no such recourse', Report,
p36. This represents a clear discrimination on racial grounds because
'owner of land' is defined to exclude an owner of Indigenous interests
in the land: AH Act, ss18(1) and (1a).

109.
In contrast to the model of Indigenous heritage enacted
in the AH Act, the UN Sub-Commission on the Promotion and Protection of
Human Rights is elaborating human rights-based principles and guidelines
for the protection of the heritage of indigenous people: Draft principles
and guidelines for the protection of the heritage of indigenous people,
(Annex I to UN document E/CN.4/Sub.2/2000/26, dated 19 June 2000). The
principles include the following matters.

  • The
    effective protection of the heritage of the indigenous people of the
    world benefits all humanity. Its diversity is essential to the adaptability,
    sustainability and creativity of the human species as a whole (paragraph
    1).
  • The discovery, use and teaching of indigenous peoples' heritage are
    inextricably connected with the traditional lands and territories of
    each people. Control over traditional territories and resources is essential
    to the continued transmission of indigenous peoples' heritage to future
    generations, and its full protection (paragraph 5).
  • To
    be effective, the protection of indigenous peoples' heritage should
    be based broadly on the principle of self-determination, which includes
    the right of indigenous peoples to maintain and develop their own cultures
    and knowledge systems, and forms of social organisation (paragraph 2).
  • Indigenous
    peoples should be the source, the guardians and the interpreters of
    their heritage, whether created in the past, or developed by them in
    the future (paragraph 3).
  • Indigenous peoples' ownership and custody of their heritage should be
    collective, permanent and inalienable, or as prescribed by the customs,
    rules and practices of each people (paragraph 4).

110.
'The Mining Act should be amended to ensure that environmental
objections [arising through the provisions for 'public interest' objections,
which also permit Indigenous objections in the court] are not heard by
the Warden's Court', Report, p85. 'The EP Act should not be used to duplicate,
and should be amended if necessary to remove the duplication of any functions
of the Aboriginal Heritage Act and protection of sites should be entirely
through that Act', Report, p86. 'The Mining Warden should only deal with
matters and objections that relate to the provisions of the Mining Act,
and the Mining Act should be amended to make this explicit', p96. 'The
State should open negotiations with the Commonwealth to mesh the State
Aboriginal Heritage Act with the Commonwealth Aboriginal and Torres Strait
Islander Heritage Protection Act such that a Section 18 clearance under
the State Act entirely satisfies the protection requirements of the Federal
legislation [note 'Federal legislation' rather than 'Act', perhaps indicating
the Committee advocates a s18 should override the NTA] in relation to
the land which is the subject of the clearance', Report, p89.

111.
Which would be consistent with the Report's statements
that 'No submission sought to demonstrate that existing regulatory efforts
serve no useful purpose and should be removed' (p83), and 'The proposals
put forward seek to ensure that environmental, native title, planning
and other checks and balances that serve the public interest are note
reduced' (p118).

112.
'The State should encourage industry and Aboriginal
representatives to join with it in developing heritage guidance and protocols
… accepting that a full [heritage] survey would identify all sites
on a particular piece of land and would be the point of reference for
all further activity on the land', Report p89.

113.
See, eg. paragraph 2 and 5 of draft principles and guidelines
for the protection of the heritage of indigenous people, (UN document
E/CN.4/Sub.2/2000/26, 19 June 2000).

114.
The Committee notes 'The EPA is now giving consideration
to Aboriginal heritage and cultural matters where they may be affected
by impacts of a proposal on physical or biological surroundings…
[and] As a result, the EPA reinforces the requirement on the proponent
to give attention to the Aboriginal Heritage Act', Report, p29.

115.
'The more appealing solution to the EP Act dealing with
Aboriginal heritage and cultural issues would be to have the AH Act able
to deal with these issues', Report, p29. The Committee justifies this
recommendation in part because would 'protect a proponent from people
using the overlap to their advantage in negotiating with the proponent
on project issues', Report p29.

116.
The AH Act simply creates a scheme whereby, if a person
disturbs a site, they commit an offence. The Department of Indigenous
Affairs encourages proponents to conduct a heritage survey, and this will
be relevant if any damage is alleged in the future, but it is not a legal
requirement: 'It is recommended that proponents consider Aboriginal heritage
issues at an early stage in development planning. This may involve informal
discussions with staff of DIA (Aboriginal Heritage & Culture Branch)
and/or engaging specialist consultants to provide advice and analysis
of development concepts in terms of their potential impact on places of
Aboriginal heritage value', section 2.2 of (WA) Department of Housing
and Works - Heritage Services, Aboriginal Heritage Procedures Manual (2002),
on Department of Indigenous Affairs website < http://www.dia.wa.gov.au/
>, accessed 27 February 2002.

117.
Report, pp 85 & 95. The Mining Act allows objections
to tenements on the basis of 'public interest considerations': Re: Warden
Calder: Ex Parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

118.
The Report does contain, in sections 5.8-5.11, two 'options
for coordinated systems' that involve substantial changes to the development
approval process and these 'coordinated systems' provide greater scope
for Indigenous interests to be addressed at an earlier point in proposed
development. However, the Committee's recommendations for limiting Wardens
Court objections are proposed without having to adopt the coordinated
system: Report, pp 83 & 100.

119.
'Government should consider ways of providing greater
access for exploration on private land in the State without affecting
the economic use of that land. This will require attention to the rights
of the owner, and consideration should be given to setting up…some
mechanism where the refusal by an owner can be tested in a fair and open
manner', Report, p95.

120.
See Queensland government statement, Statewide Model
Indigenous Land Use Agreement, <www.nrm.qld.gov.au/resourcenet/mines/nativetitle/ilua.html&gt;,
accessed 15 January 2002.

121.
'The Wand Report notes that "NTRBs are not adequatey
resourced to carry out their functions in relatioin to the resolution
of native title applications in anything like the time frames targeted
by the Federal Court". This situation has also been acknowledged
at the national level', Report, p35.

122.
eg. in addition to the Wand Report, also Senator Brennan
Rashid, Review of Native Title Representative Bodies, 1999 (commissioned
by ATSIC); the Taskforce Report (p104 noting the lack of funding to enable
NTRB's to fully assist with the tenement application process); and Parker,
G & o'rs, Review of Native Title Representative Bodies, ATSIC, Canberra,
1995..

123.
'There is overwhelming evidence that representative
bodies are not receiving adequate funding to enable them to assist with
the negotiation of ILUAs within the timeframes proponents require or prefer',
Commonwealth Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, Second Interim Report for the s206(d)
Inquiry: Indigenous Land Use Agreements, Parliament of the Commonwealth
of Australia, Canberra, 2001, p99.

124.
'This situation [level of NTRB funding] has been acknowledged
at the national level and has resulted in the Commonwealth committing
additional funding to ATSIC [Aboriginal and Torres Strait Islander Commission]
over four years', Report, p35.

125.
Only 20% ($17,400,000 of $85,919,000 over four years)
of the 'additional funding' goes to ATSIC, with the remaining 80% being
divided between the Commonwealth Attorney General's Department (18%),
the Tribunal (42%) and the Federal Court (20%). All of funding for ATSIC
is held and managed by ATSIC not NTRBs and 57% is to be used for 'capacity
building'.

126.
NTRB functions are specified in s203B of the NTA.

127.
NTRB's assist (by direct representation or funding assistance to private
lawyers) 89% of native title claims in Australia: information provided
to the Human Rights & Equal Opportunity Commission by the Federal
Court of Australia and the Aboriginal and Torres Strait Islander Commission.

128.
Report, pp35 & 44.

129.
NTA s203B(4) specifies that NTRB's 'may allocate resources…so
as to be able to perform its functions efficiently but must give priority
to the protection of the interests of native title holders' (emphasis
added). This means that where a government (with its greater funding)
is endeavouring to use the expedited procedure to progress development,
or the Tribunal (with its greater funding) wishes to proceed with a future
act hearing, or the Federal Court (with its greater funding) wants to
progress a native title claim to a resolution, an NTRB must give these
matters priority over trying to reach agreements.

'The
representative bodies seem to be suffering from a lack of resources to
facilitate ILUAs, causing delays in negotiations, certification and registration',
section 1.2(b) of submission by Rio Tinto Limited to Inquiry into Indigenous
Land Use Agreements by Commonwealth Parliamentary Joint Committee on Native
Title and the Aboriginal and Torres Strait Islander Land Fund, document
available at <ww.aph.gov.au/senate/committee/ntlf_ctte/indig/Submission%2023.doc>,
accessed 3 March 2002.

Report,
p118. The statement accords with the Committee's explanation that it received
no submission that 'sought to demonstrate that existing regulatory efforts
serve no useful purpose and should be removed', Report, p83.

For
further information, see <www.ameef.com.au/mmsd/index.htm&gt;.

MMSD
Draft Report, p36. Available at < www.ameef.com.au/mmsd/index.htm&gt;,
accessed 27 February 2002.

Last updated 12 June 2002.