Native Title Report 2002: Implications of Miriuwung Gajerrong & Wilson v Anderson

Chapter 4: Implications of Miriuwung Gajerrong and Wilson v Anderson

Miriuwung Gajerrong

• Extinguishment – Native Title in Nature Reserves ong>Effect of the Racial Discrimination Act 1975

• Nature Reserves in Western Australia Martu Gibson Desert native title applicants

• Gibson Desert native title applicants

• A Human Rights Appraisal The exercise and enjoyment of culture Self determination Effective participation

• Self determination

• Effective participation

• Sustainable Development Sustainability in Western Australia Extinguishment and sustainability

• Extinguishment and sustainability

• The Western Australian Conservation Estate – a Human Rights Framework Approach ong> Recognition and protection of traditional interests in conservation areas Conditional terms Traditional interest and relationship to country /em>Management agreement /em>Protection of rights and interests

• Conditional terms Traditional interest and relationship to country Management agreement

• Management agreement

• Protection of rights and interests

Wilson v Anderson

• The Western Lands Act The effect of land administration in western New South Wales

• Extinguishment of Native Title in the Western Division

• The Human Rights Implications of Extinguishment in the Western Division Native title Enjoyment of culture Self determination and effective participation

• Enjoyment of culture

• Self determination and effective participation

• Response to a Human Rights Approach

The reasoning of the High Court in Wilson v Anderson [1] and Miriuwung Gajerrong [2] provides a comprehensive analysis of the operation of the Native Title Act 1993 (Cwlth) (‘NTA’). It is detailed and legally complex. In discussing NSW crown land legislation, Justice Kirby made the following observation about the NTA and the native title system:

The impenetrable jungle of legislation remains. But now it is overgrown by even denser foliage in the form of the Native Title Act...and companion State legislation… The legal advance that commenced with Mabo v Queensland [No 2] /em>, or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s indigenous peoples in relation to native title to land and waters are being channeled into costs of administration and litigation that leave everyone dissatisfied and many disappo [3]

An analysis of international human rights standards to which Australia is a signatory reveal that recent findings of the High Court are likely to impede, if not wholly disrupt, the rights of Indigenous Australians to enjoy and practice their culture and exercise their right of self determination and effective participation. This chapter discusses mechanisms that, in accordance with human rights standards, may provide a level of recognition and protection to the rights and interests of Indigenous Australians, notwithstanding the failure of the native title system to do so. In doing so, this chapter discusses broadly the finding of extinguishment in Wilson v Anderson and more specifically an aspect of extinguishment within the Miriuwung Gajerrong decision that is expected to affect a significant area of land within Western Australia.

The Wilson v Anderson decision applies to leases throughout the Western Division and in those areas is likely to extinguish native title. In addition, other leases within the Western Division are specified in the NTA and will also extinguish native title. It is expected that these two mechanisms of extinguishment will affect most of the Western Division, covering 42 per cent of New South Wales.

In Western Australia, the Miriuwung Gajerrong decision addressed extinguishment and partial extinguishment over a range of different tenures. The wholesale extinguishment of native title on nature reserves, as in other findings of extinguishment, has important human rights implications. However, extinguishment on nature reserves is also at odds with contemporary conservation approaches, sustainability and even principles within the NTA.

As Justice Kirby stated, the native title system which followed the legal advance that began with Mabo [4] has disappointed many. Yet, the Commonwealth continues to defend the 1998 amendments and disregards calls for legislative change. Other strategies must be sought to address the failure of the NTA to provide adequate acknowledgement and application of the human rights of Indigenous Australians.

Miriuwung Gajerrong

The Miriuwung Gajerrong decision addressed significant native title issues relating to the recognition of rights and the process for determining extinguishment under the NTA. These issues have been comprehensively addressed in other chapters of this report and will not be re-examined here. The purpose of this section is to discuss the human rights implications of particular findings of extinguishment and some of the emerging implications for the administration of native title by agencies and governments following Miriuwung Gajerrong decision addressed significant native title issues relating to the recognition of rights and the process for determining extinguishment under the NTA. These issues have been comprehensively addressed in other chapters of this report and will not be re-examined here. The purpose of this section is to discuss the human rights implications of particular findings of extinguishment and some of the emerging implications for the administration of native title by agencies and governments following

The long awaited Miriuwung Gajerrong decision has provided clear guidance as to the operation of the amended NTA and principles of extinguishment. The decision examined different tenures, a range of rights including fishing rights, the protection of culture and spiritual knowledge, and also provided guidance for the determination of partial extinguishment. The Miriuwung Gajerrong decision makes clear the operation of the native title system and in many respects is disappointing from a human rights perspective.

Human rights concerns regarding the amended NTA have been the focus of previous Native Title Reports and have also been the focus of criticism from international human rights committees. These concerns and criticisms have not led to any amendments to the NTA. Yet, despite the shortcomings of the NTA and the recurring failure of the native title system to recognise and protect Indigenous interests, Aboriginal and Torres Strait Islanders maintain their relationship to and identity with their traditional country. This is particularly true of nature reserves and national parks, where development of the land has been limited. It is within this context that I present a human rights framework, not directed to the Commonwealth seeking amendments to the NTA, but to the Western Australian Government seeking a policy response that is in accordance with human rights standards.

The finding of extinguishment on reserves in the Miriuwung Gajerrong decision, and in particular within those reserves created for the purpose of nature conservation, was unexpected. This finding is contrary to the principle of non-extinguishment in conservation areas within the NTA; contrary to human rights standards of cultural protection and self determination; and contrary to contemporary international conservation approaches and sustainability principles supported by the Western Australian Government. Yet the High Court found, in Miriuwung Gajerrong , that the operation of the NTA results in the extinguishment of native title in nature reserves.

Notwithstanding the incongruity of this finding, I believe it offers an opportunity to re-appraise and respond to the native title system in a way which provides for the genuine recognition and protection of Indigenous interests in Western Australia.

Extinguishment – Native Title in Nature Reserves

In Miriuwung Gajerrong the Court examined the effect of extinguishment arising from the creation of reserved areas. Under the Land Act 1933 (WA) (‘Land Act’), a reserve could be created for the conservation of indigenous flora and fauna. Un Wildlife Conservation Act 1950 (WA) ‘nature reserve’ means land reserved under the Land Act. Within the claim area a number of reserves had been gazetted for different purposes, including, public purposes, conservation, recreation, parkland, agricultural research, gravel, quarry and drainage purposes. Within the claim area nature reserves include:

• Wildlife sanctuary – Reserve 29541
• Conservation of flora and fauna – Reserve 31967, 34585 and 42155
• Mirima National Park – Reserve 37883

Each of the nature reserves is currently vested in the National Parks and Nature Conservation Authority. [5] The Court found that native title was extinguished on these areas.

The extinguishment reasoning focused on the legal mechanisms for creating and vesting a reserve. Much of the land within the claim area was or has been subject to a reserve under either the Western Australian Land Regulations 1882 , Land Act 1898 or Land Act. The High Court found that the making of a reserve did not wholly extinguish [6] all native title rights and interests. However:

… the exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used… this step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation. [7]

That is, the making of a reserve did not extinguish all native title rights and interests but it was inconsistent with the right of native title holders to decide how the land could or could not be used.

While the creation of a reserve did not wholly extinguish native title rights and interests, the Court did find that the vesting of a reserve would wholly extinguish native title:

…because the vesting under s33 of the Land Act 1933 of a reserve in a body or person vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, rights are vested in that body or person which are inconsistent with the continued existence of any native title rights or interests to the land on [8]

That is, native title was extinguished on any reserved land that was vested in a body or person.

Effect of the Racial Discrimination Act 1975

The Racial Discrimination Act 1975 (Cwlth) (‘RDA’) performs an important function in relation to the operation of the NTA. If, after the commencement of the RDA in 1975, the Crown has enacted or amended legislation, granted or varied licences, created or extinguished any interest in relation to land or waters or created a contract or trust in relation to land or [9] and this act discriminates against native title rights and interests under the RDA, these acts would be invalid. However, under the validation and confirmation provisions of the NTA, those acts that were invalid because of the operation of the RDA are validated. In some instances, this validation process allows for non-extinguishment of native title.

If a reserve were vested before the RDA came into operation, the vesting would be valid and native title extinguished. If the vesting occurred after the operation of the RDA, questions arise as to whether the act was invalid under the RDA and would be validated under the NTA. [10]

The Court found that on its face the vesting of reserves under s 33 of the Land Act did not single out native title rights and interests in a discriminatory manner. However, the Land Act did provide for compensation for loss of rights and interests of resumed land and so compensation for the loss of rights and interests under the Land Act is conferred on native title rights and interests.

The Court reasoned that ‘at the time of vesting a reserve, the only interests in the land which could be affected by the vesting and the holder of which would not be entitled to compensation would be native title rights and interests’. [11] [11] However, under the analysis of discrimina Gerhardy r [12] [12] by Mason J, the vesting of a reserve after 1975
valid lid but the RDA would supply to native title holders a right of compensation for that which is lost upon [13]

Despite the High Court’s finding that the extinguishment of native title by the vesting of reserves was valid and extinguished native title apart from the NTA, the Court gave consideration to the operation of the NTA. Section 23B of the NTA provides the mechanism for the confirmation of extinguishment. [14] Under this section a ‘previous exclusive possession act’ which wholly extinguishes native title covers a range of acts. Subsection 3 provides the definition for the extinguishment of native title by the vesting of a reserve:

(3) If:

(a) by or under legislation of a State or Territory, particular land or waters are vested in any person; and

(b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation; the vesting is taken… to be the vesting of a freehold estate over the land or waters.

This analysis confirms the extinguishment of native title rights and interests over reserves. However the Court made some additional observations about the operation of the NTA, stating that in considering the operation of s23B attention must also be given to sub-sections 9A and 9C.

Sub-section 9A of NTA s23B allows that if a previous exclusive possession act is the grant or vesting for the establishment of a national, state or territory park for the purpose of preserving the natural environment of the area, then the vesting would not be a previous exclusive possession act. Yet following this analysis the Court concludes:

Nevertheless, the vesting of a right of exclusive possession being valid, the vesting extinguished all native title rights and interests in the land.

Similarly, sub-section 9C of NTA s23B provides that if a vesting in relation to land or waters is to or in the Crown in any capacity or statutory authority, that act is not a previous exclusive possession act, unless apart from the NTA, it extinguishes native title. In relation to nature reserves, these areas were vested in the National Parks and Conservation Authority and it is likely that the Court would find that this Authority was an emanation of the crown and hence Sub-section 9C would apply. However, the Court found that because the vesting of a nature reserve was valid and extinguished native title apart from the NTA, vesting was valid and effective to extinguish native title.

The Court’s finding that extinguishment arising from vesting of reserves was valid, in relation to nature reserves, ensures that two provisions within the NTA that would have protected native title from extinguishment could not be applied.

Nature Reserves in Western Australia

Within the Miriuwung Gajerrong claim area, vested reserves cover just over 30 per cent of the claim area. [15] Native title is now wholly extinguished in these areas. However, findings of extinguishment in Miriuwung Gajerrong are likely to apply to other reserve areas in Western Australia. This has significant implications for native title in conservation areas throughout Western Australia. Currently the conservation estate in Western Australia covers 22 million hectares, approximately 8 per cent of the State, [16] with most of the conservation estate being created by the reservation and vesting of land. Hence the extinguishment of native title over large areas within the conservation estate will result from the Court’s decision.

In a recent analysis by the Ngaanyatjarra Council [17] two areas were identified as being affected by the findings of Miriuwung Gajerrong in relation to nature reserves, those of the Martu and Gibson Desert native title claimants.

Martu

The Martu native title claimants lodged a claim over an extensive area of land in the Eastern Pilbara. The claim covers an area of 250,000 square kilometers and within this area the Rudall River National Park covers an area of 25,000 sq kilometers. The National Park was created in 1977 and is of particular ecological, cultural, physical, ethnographic and practical significance to the Martu. Within the National Park are also two of the main communities for that area – Pangurr and Punmu. On Ngaanyatjarra’s analysis, the affect of the Miriuwung Gajerrong decision will be the wholesale extinguishment of native title in the area covered by the National Park.

On 27 September 2002, the native title of the Martu people was recognised by consent determination. However, just prior to the determination being made by the Federal Court, the Rudall River National Park was excluded from the determination to take account of the Miriuwung Gajerrong decision. The Rudall River National Park is an area of special significance to the Martu. Prior to the Miriuwung Gajerrong decision it was included in the consent determination negotiated with the Western Australian government. Following its exclusion from the determination the parties intend to negotiate a mutually acceptable joint management arrangement for the national park outside of the native title process. [18]

Gibson Desert native title applicants

It is likely that the Gibson Desert native title claimants will be similarly affected by the findings of the Miriuwung Gajerrong decision. Their claim is for an area of land to the south-west of Kiwirrkurra and west of the Central Reserves, close to the middle of WA. Unlike the Martu, the nature reserve comprises 65 per cent of the claim area of the Gibson Desert native title claimants and is likely to be extinguished following the decision in Miriuwung Gajerrong . This nature reserve was gazetted in 1977 without any consultation with the traditional owners for the area.

The Gibson Desert Nature Reserve: Traditional Owners and Cultural Landscape [19]

However, although people were few on the ground and widely scattered, groups were never isolated. Kin (and affines) were found in neighbouring and more distant groups. In fact, people were surrounded by kin, and interacted with one another first and foremost as kinspersons. Beyond this, groups periodically came together to stage rituals, such as those to replenish species and initiate youths into manhood, believed to have been first performed, and then passed on to humans, by the great creative ancestors of the Dreaming.

At the same time, a number of traditional owners and their ancestors continued residing in and around the Nature Reserve well into the 1960s; a few continued a traditional subsistence existence in the area into the 1970s. These were some of the people who in the mid-1960s were met by Western Australian Native Welfare Officers and Native Patrol Officers working with the Woomera Weapons Research Establishment, recorded by the anthropologists Professor Robert Tonkinson and Professor Richard Gould, and filmed by the Commonwealth Film Unit for the People of the Australian Western Desert series. Indeed, these traditional owners, specifically some of the Campbells, Carnegies, Morgans and Wards, came to be held out as archetypical hunter-gatherers, widely depicted, described and discussed.

At a general level, most of the younger traditional owners are multi-lingual, speaking both English and the Western Desert language. At the same time, many of the older traditional owners have limited English, generally conversing in the Western Desert language. Young and old alike remain deeply embedded in what still is a largely kin-based society. They continue relating with and to one another as kinspeople, and marrying according to prescriptive rules. And while years of mission experience has imbued traditional owners with elements of Christian belief and practice, most traditional owners also hold the Dreaming, and its accompanying ritual system, as fundamental, both to their lives and the wellbeing of the ongoing socio-cultural order of which they are part. More than this, senior generation traditional owners are of the view that it is imperative their and their ancestors’ beliefs and practices, particularly as these relate to ‘public’ and to gender based, i.e. men’s and women’s, knowledges of sites and Dreamings, be maintained and passed on to members of the younger generation.

The effects of this aspect of the Miriuwung Gajerrong will not be confined to the Martu and Gibson Desert people. Reserves are scattered throughout Western Australia and the implications of this aspect of the Miriuwung Gajerrong will not be confined to the Martu and Gibson Desert people. Reserves are scattered throughout Western Australia and the implications of this aspect of the

A Human Rights Appraisal

The exercise and enjoyment of culture

The findings of extinguishment in Miriuwung Gajerrong have serious implications for the enjoyment by Aboriginal people in Western Australia of rights under article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’) and Article 1 of ICCPR International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).

Article 27 of ICCPR requires:

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 practice their own religion or, to use their own language.

Where land is of central significance to the culture of a group, then the right to enjoy and maintain a distinct culture includes the protection of Indigenous rights and interests in land. The protection of these interests also reflects the special value of an Indigenous culture to the broader society of which it is an important part. Such value is an intrinsic part of the conservation estate as many of these areas are protected not only for their environmental features but also for their cultural significance. [20]

Native title recognition provides an important mechanism for the exercise and enjoyment of culture. That is, the cultural characteristics of a native title holder group are imbedded within native title recognition, as the traditional law and custom define the nature and extent of native title rights. Hence, the recognition and protection afforded by the NTA while constrained in many ways, provides an important legal measure for the protection and enjoyment of culture.

However, the extinguishment of native title withdraws the recognition and protection of cultural interests, which define the nature and extent of native title rights. The extinguishment of native title rights and interests has significant implications for the exercise and enjoyment of culture. Generally, the recognition of native title rights and interests ensures that native title holders are able to maintain and enjoy their cultural interests. That is, native title enables people to be on country, to conduct cultural activities including hunting, collecting bush tucker and ceremonies. It also provides mechanisms for the protection of these rights and interests from future development. Extinguishment of native title rights deprives native title holders of these rights of exercise and protection and consequently fails to satisfy the requirement under article 27 that Indigenous peoples have the right to enjoy their culture and all its elements, particularly those that relate to land. Such deprivation will not result in the ‘extinguishment’ of Indigenous cultures – Aboriginal people in Western Australia will continue to practice their law and custom, to the extent they are able without the recognition and protection of their cultural interests under the NTA.

However, article 27 also requires that States take positive measures to ensure people are able to exercise rights under this provision. The NTA was drafted in consideration of international human rights, [21] including the ICCPR, but in some instances has failed to uphold key provisions required by these standards. Yet the responsibility remains, despite the failings of the NTA, for states [22] in recognising the unique value and importance of Aboriginal people to implement positive legal measures of protection [23] to the extent that:

… a State party is under an obligation to ensure that the existence and the exercise of this right is [sic] protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. [24]

Self determination

The right of self determination is required under Article 1 of the ICCPR and ICESCR, and the principle of effective participation emanating from this right is significant, particularly in relation to nature reserves. Article 1 states:

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

The right of self determination supports and promotes the development of Indigenous communities. The recognition of native title rights and interests within nature reserves may have provided native title holders the opportunity to pursue their economic, social and cultural development. Conservation areas in particular, if appropriately managed, can be especially well suited to development that allows Indigenous peoples to build a stronger social and economic base through land and resource management, further develop communities through employment, training and education and enable the ongoing practice and exercise of cultural interests.

In the Northern Territory a number of examples exist of conservation areas that are currently administered through a joint management relationship. Broadly, this relationship is designed to enable Indigenous land holders to: participate in the management of the park; continue traditional activities and; provide for training and employment. While the shortcomings of this approach are increasingly becoming apparent [25] they are an important first model of the management relationship between Indigenous land holders and a conservation agency. Importantly, an analysis of existing joint management relationships can provide a useful guide to developing better and more equitable management arrangements between Indigenous land holders and conservation agencies.

Effective participation

An important feature of the right to self determination, which is also drawn from article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination [26] (‘ICERD’) and article 27 of ICCPR, is the principle of ‘effective participation’. This requires that Aboriginal people have the right to determine their own status and to effectively participate in decisions relating to their traditional country. The Committee on the Elimination of Racial Discrimination (‘CERD’) issued a General Recommendation on Indigenous Peoples, which recommends that States:

…ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent. [27]

This principle has two important implications for states. A human rights approach requires that policy and government decisions relating to the interests of Indigenous people be made only with their effective participation. And decisions directly affecting the traditional country and interests in that country of Indigenous people should be made only with their informed consent. Such an approach is not only appropriate from a human rights perspective but also assists in building a relationship of trust between Indigenous peoples and the state.

More specifically the Human Rights Committee has stated:

With regard to cultural rights protected under [ICCPR] 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. That right may include such traditional activities as fishing or hunting… 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. [28]

The NTA may be described as a ‘positive legal measure of protection,’ but failure to obtain this protection through either extinguishment or non-recognition, leaves the rights of many Indigenous peoples unprotected and without the opportunity to effectively participate in decisions relating to these interests. This is true of the rights and interests of Aboriginal people in Western Australia, to the extent that their land is covered by a vested reserve.

An opportunity exists for the Western Australian Government to respond to the findings of extinguishment in relation to nature reserves in a manner informed by a human rights approach. Such an approach is consistent with and required by principles of sustainable development.

Sustainable Development

In 1972 the Declaration of the United Nations Conference on the Human Environment presented principles for the preservation and improvement of the human environment. These principles promoted respect for fundamental rights of freedom, equality and adequate conditions of life, and improvement and preservation of the earth’s natural resources. The 1972 Declaration initiated an ongoing assessment of international environmental and social issues, revealing worsening circumstances of environmental degradation and social instability throughout the 1970s and 1980s. In 1987, identifying the ongoing destruction of eco-systems and acknowledging the implicit threat to world security arising out of an impending resource shortage and environmental degradation, the World Commission on Environment and Developm [29] first phrased the term ‘sustainable development’. Sustainable development was described as development which ‘meets the needs of the present without compromising the ability of future generations to meet the [30]

In 1992 the United Nations Conference on Environment & Development was held in Rio de Janeiro. The Rio Conference, was driven by the ‘sustainable development’ principle and Agenda 21 was drafted to provide practical guidance for the implementation of sustainable development. Key Agenda 21 principles acknowledged:

Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. [31]

And that:

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. [32]

Also declared was the importance of Indigenous peoples in the process of sustainable development and the requirement that the cultural interests and effective participation of Indigenous peoples be recognised:

Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. [33]

The Rio Conference significantly acknowledged the paramount role of social and economic development in efforts to protect the environment. In its earlier form, sustainable development focused largely on conservation and environmental protection. Following Rio, there has been growing recognition that sustainable development relies on three interdependent and reinforcing ‘pillars’ – economic development, social development and environmental protection. [34]

Since the Rio Earth Summit in 1992, sustainable development has emerged as a new paradigm of development, integrating economic growth, social development and environmental protection as interdependent and mutually supportive elements of long-term development. Sustainable development also emphasises a participatory, multi-stakeholder approach to policy making and implementation, mobilizing public and private resources for development and making use of the knowledge, skills and energy of all social groups concerned with the future of the planet and its people. [35]

In 2002, the World Summit on Sustainable Development was held in Johannesburg. The conference began with sobering statistics:

… today, 80 countries have lower per capita incomes than they did at the time of the Rio conference. Threats are higher than ever to natural resources such as forests, fish, and clean water and air. The richest one-fifth of the population, including wealthy minorities in poor countries consume energy and resources at a rate that providing a comparable lifestyle to the rest of the world’s population would require the resources of four planets the size of Earth. [36]

Secretary General of the United Nations, Kofi Annan also acknowledged that the results since the Rio Conference have been disappointing – ‘in some respects conditions are worse than they were 10 years ago’. It was recognised that the approach to development had been piecemeal, with ongoing threats to the environment through unsustainable consumption and production. [37]

The Johannesburg Declaration on Sustainable Development [38] (‘Johannesburg Declaration’) declared that:

… we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at local, national, regional and global levels. [39]

And further:

Recognising that humankind is at a crossroad, we have united in a common resolve to make a determined effort to respond positively to the need to produce a practical and visible plan that should bring about poverty eradication and human development. [40]

Clearly a key feature of the Johannesburg Declaration, and contemporary international analysis of sustainable development, is the eradication of poverty and the development of communities in conjunction with environmental protection. This is reinforced in the Johannesburg Declaration and identified as one of the key challenges to the implementation of sustainable development. [41]

The Sustainable Development Conference also focused on the growing economic disparity between the rich and the poor. While its focus was largely directed towards developed and developing States, within Australia similar disparities exist. Indigenous Australians, living within a ‘rich country’, continue to suffer life chances equivalent to those living in ‘poor countries’. At an international level, sustainable development is considered an approach that may address such disparities. It may also usefully inform strategies to address poverty eradication within Indigenous communities within Australia.

Sustainable development approaches rely also on respect for fundamental human rights [42] and recognise the vital role of Indigenous people in sustainable development. [43] Hence, a sustainable development approach within Australia requires respect for Indigenous rights as afforded under international law. The operation of the NTA in many ways fails to uphold international law principles and functions in a way which deprives native title holders of the enjoyment of their rights under international law.

Had native title holders rights not been extinguished in nature reserves in WA, these areas may have provided native title holders and conservation agencies an opportunity for the sustainable use of these areas and for the development of local communities. Rather, extinguishment of native title within these areas deprives native title holders of the protection and enjoyment of their cultural rights and the opportunity for meaningful participation in the sustainable development of their traditional lands and resources.

Sustainability [44] in Western Australia

In Western Australia, the current Government has pledged to embrace sustainability. In ‘Focus on the Future: Opportunities for Sustainability in Western Australia’, the consultation paper launching the State Sustainability Strategy, Premier Gallop stated:

For many years we pursued economic, environmental and social goals in isolation from each other. We have come to recognise that our long-term well-being depends as much on the promotion of a strong, vibrant society and the ongoing repair of our environment as it does on the pursuit of economic development. Indeed, it is becoming obvious that these issues cannot be separated.

The challenge is to find new approaches to development that contribute to our environment and society now without degrading them over the longer term… sustainability offers a process whereby these goals can be achieved simultaneously without trade-offs or compromise. [45]

As part of the sustainability strategy, a Sustainability Policy Unit was created within the Department of Premier and Cabinet. The Policy Unit is responsible for coordinating the development of the State Sustainability Strategy, increasing awareness of sustainability issues, and researching international sustainability strategies that may have relevance in Western Australia. [46] An important feature of the State Sustainability Strategy is the commitment to an integrative or holistic approach. [47] To facilitate a ‘holistic approach’, the Policy Unit has sought information on ‘priority issues’, ranging from sustainable building and construction methods to carbon emissions and ecotourism. Importantly, Indigenous Sustainability issues are [48]

The key strategy set out in the Indigenous Sustainability paper emphasises the development of regional governance strategies. [49] While regional governance structures are fundamental to sustainability so too are inherent Indigenous rights, as expressed in international law and articulated within a human rights approach. It is therefore essential that Indigenous rights, particularly those associated with Indigenous peoples’ relationship to land, be included within any strategy for sustainability in Aboriginal communities in WA. The paper acknowledges this importance:

Central to any consideration of sustainability for Indigenous Western Australians is the recognition and determination of inherent native title rights, alongside negotiated capacity building programs, negotiated delivery of services, the building of infrastructure, and access to economic opportunities via universally recognised citizenship rights enjoyed by all Western Australians. [50]

Importantly, the Gallop Government has made a strong commitment to ‘a new approach involving a partnership between governments and communities that will facilitate the development of self reliance for Indigenous Australians’. [51] [51] The commitment of the Western Australian Government to sustainability in WA is an important first step. The findings of extinguishment of native t Miriuwung Gajerrong present a significant challenge to this commitment.

Extinguishment and sustainability

The ongoing relationship of Aboriginal people in Western Australia to their traditional country is an important consideration for sustainability strategies within Indigenous communities. In fact, land has been the single most important feature of Aboriginal sustainability for tens of thousands of years.

It is now thought that Aborigines have occupied Australia for at least 50,000 years.

Yet, it is not widely acknowledged that they developed, adapted and refined their resource use and management skills over this time. Residence patterns, foraging practices and technology were key aspects of Aboriginal use and management of the landscape. The population density and distribution of Aboriginal groups continually changed, partially in response to ecological variations. Through these shifting settlement and mobility patterns, Aboriginal people managed the impact of their populations, therefore avoiding the over-exploitation of localised areas of the environment. [52]

Clearly, the sustainable use of land has been a concept familiar to Aboriginal communities for generations. Land provides Aboriginal people in Western Australia with the physical, religious, cultural, social and economic building blocks of their communities. To embark on a contemporary strategy of sustainability without this key component of Indigenous culture is unlikely to be successful. The extinguishment of native title rights and interests in Miriuwung Gajerrong is in many ways incongruous with strategies of sustainability within Aboriginal communities in Western Australia. Extinguishment of native title within the conservation estate of Western Australia, in particular, deprives Aboriginal people of a meaningful opportunity for the sustainable development of their communities through the use of their traditional lands.

Land and resource management provide an important opportunity for the development of Aboriginal communities in Western Australia. While not a panacea for Aboriginal disadvantage, these opportunities arising from traditional country present a legitimate and meaningful source of development for Aboriginal communities.

The opportunity exists for the Western Australian Government to respond to the extinguishment findings in Miriuwung Gajerrong in a way which accords with human rights standards and principles of sustainability. Given the existing commitment of the Western Australian Government to sustainability and a realisation of the relationship between sustainability and human rights, I am hopeful that a fair and just outcome may be achieved within the conservation estate of Western Australia.

The Western Australian Conservation Estate – a Human Rights Framework Approach

Human rights standards, principles of sustainability, and contemporary conservation approaches require a response to findings of extinguishment over conservation areas. Outlined below is a framework for negotiations between the Western Australian Government and Aboriginal stakeholder groups. The framework incorporates key human rights standards and may provide a basis for negotiated outcomes. Further development of this framework is dependent upon its appropriateness and utility in an Indigenous context in Western Australia and the active participation of Indigenous stakeholder groups.

Recognition and protection of traditional interests in conservation areas

In accordance with article 27 of ICCPR which requires the protection and recognition of Indigenous interests in land and with the effective participation and informed consent of Aboriginal traditional owners, a human rights approach supports:

The principles of effective participation and informed consent emanate from a number of international human rights standards. These standards require that Indigenous participation within decision-making processes occur at two levels. First, the Minorities Declaration [53] provides that:

Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. [54]

And the Vienna Declaration [55] calls on states to ‘ensure the full and free participation of Indigenous people in all aspects of society, in particular in matters of concern to them [56] These standards require that Indigenous peoples ‘effectively participate’ generally in public life and particularly in ‘matters of concern’ to them. Second, international standards require that Indigenous people are able to effectively participate and provide their informed consent to decisions which affect them. In particular, States should ensure that:

…no decisions directly relating to the rights and interests of Indigenous people are taken without their informed consent. [57]

And that:

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 and measures to ensure the effective participation of members of minority communities in decisions which affect them. [58]

In accordance with international human rights standards, it is vital that negotiations relating to the rights and interests of Aboriginal people in Western Australia occur only with their effective participation and that negotiated outcomes are only determined with their informed consent. Of note, international human rights bodies have been particularly concerned with the Commonwealth Government’s failure to ensure the effective participation and informed consent of Indigenous people in the 1998 amendments to the NTA. [59]

Conditional terms

The grant of freehold should be on terms negotiated between the Western Australian Government and key Aboriginal stakeholder groups. However, in consideration of key human rights principles, contemporary Indigenous land management approaches and current international conservation strategies, conditional terms may include:

• the establishment of Aboriginal traditional interest and relationship to country and;
• the negotiation of a management agreement between conservation agencies and traditional owners or their appropriate corporate body.

Traditional interest and relationship to country

In particular instances, the native title recognition process fails to recognise and protect Indigenous cultural relationships with land in accordance with article 27 of the ICCPR. A new mechanism should be developed to determine traditional interest and relationship to country. This relationship should not be narrowly confined to heritage values and sites of cultural significance but should incorporate the full meaning of relationship to country.

In accordance with principles of effective participation and informed consent, this mechanism must be developed with the active participation of Aboriginal people whose interests will be affected by the new mechanism. It may be that this process of negotiation could usefully begin from the basis of the procedures used for the registration of native title applications, as administered by the National Native Title Tribunal. That is, the registration test may provide a useful starting point for the development of a more appropriate mechanism to determine traditional interest in country.

Management agreement

A management agreement would establish the ongoing conservation interest in the land and establish an appropriate management structure. Key human rights standards and sustainability principles can provide an important guide for the development of management agreements. These include:

• Protection and recognition of culture ; the grant of freehold in acknowledgement of cultural interests should not be unnecessarily confined by mechanisms that act to reinstate the conservation management structure. [60]

• Cultural appropriateness ; management structures need to function in a way which supports and effectively interacts with the culture of traditional owner groups.

• Effective participation and informed consent ; decision making and management structures must be determined only with the informed consent of traditional owners.

• Enjoyment of culture ; the balance between traditional use and conservation must be negotiated to ensure provisions for traditional land use practices, e.g., hunting and collecting bush food and medicine.

• Self determination ; the establishment of an equitable relationship and one that promotes and assists in the increased participation of Aboriginal traditional owners in all levels of management. In negotiation with the traditional owners this may lead to full management responsibilities over freehold areas.

• Funding ; adequate funding to ensure Aboriginal traditional owners can make informed decisions and management structures are culturally appropriate.

A number of management models exist, for example, the commonly used joint management model or the Indigenous Protected Area approach. A human rights approach supports a model that ensures: the protection of Indigenous rights and interests in land; the effective participation and informed consent of Aboriginal traditional owners; the implementation of culturally appropriate management structures; and opportunities for self determination and social, economic and cultural development within traditional owner communities. Within these parameters it is likely that a range of different management models will be required to satisfy the distinct social and cultural identities of Western Australia’s Aboriginal traditional owner groups.

Protection of rights and interests

Prior to the Miriuwung Gajerrong decision, the rights and interests of native title claimants within nature reserves were protected by the future act provisions of the NTA. As a result of findings of extinguishment, right and interests under the future act regime are at risk. To ensure the protection of rights and interests and the opportunity of traditional owners to effectively participate in decisions relating to their land, a human rights approach requires that the Western Australian Government act to protect Indigenous rights and interests in land until the resolution of traditional owner interests in conservation areas and appropriate negotiations can commence.

Wilson v Anderson

The Wilson v Anderson case was heard by the High Court on appeal from the Full Federal Court. The central argument of the case was whether native title was extinguished by the grant of a lease in perpetuity for grazing purposes under the Western Lands Act 1901 (NSW) (‘WLA’). For the purpose of the case, it was assumed that native title rights and interests existed in the area.

The High Court’s reasoning in Wilson v Anderson included a detailed analysis of the legislative history of the WLA. This analysis mapped the amendments to the 1901 WLA that resulted in the form of land ownership current on the claim area. It revealed the historic context of the amendments and to some extent the impetus for these amendments. Of significant influence in the ongoing amendments to the WLA were the difficulties encountered by pastoralists in the Western Division, difficulties which were not unlike those affecting pastoralists in the Western Division today. That is, key amendments to the WLA occurred as a result of difficulties affecting pastoralists in western New South Wales, including drought conditions and economic downturn. Also of significant influence were the policy and ideology of land settlement in Australia.

Following this analysis, the High Court found that the amendments to the WLA resulted in a type of land ownership that wholly extinguished native title – the perpetual grazing lease. [61]

What is also made apparent by the Court’s reasoning in Wilson v Anderson is the absence of an Aboriginal history or experience. This is partly as a result of the structure of the appeal, in that it was assumed that native title rights and interests existed and did not need to be identified. For the most part, the absence of Aboriginal history or experience within the Court’s description of land settlement in the Western Division is a result of the terra nullius rationale that justified the process of colonization in Australia. This rationale declared an empty land and justified the exclusion and incremental dispossession of Aboriginal traditional land in western New South Wales.

The Preamble to the NTA acknowledges that Aboriginal and Torres Strait Islanders:

… have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

It was hoped that the spirit and purpose of native title recognition in Mabo and the enactment of the NTA would stem the dispossession of Indigenous rights and interests in land and provide a lasting agreement concerning the use of those lands. The finding of extinguishment in Wilson v Anderson ends these expectations and renews the dispossession of Aboriginal people in western New South Wales. In this instance, the NTA does not offer a ‘lasting and equitable agreement’ with the Aboriginal people in this region.

However, an opportunity exists at this time for the NSW government to consider Aboriginal interests in land in the Western Division and provide a ‘lasting and equitable agreement’. Importantly, findings of extinguishment under the native title legal regime do not mean the ‘extinction’ or end of Aboriginal people’s relationship to and ownership of their traditional country. These things continue.

The Western Lands Act

The High Court decision provides a detailed history of the WLA and the nature of the interests created as part of its inquiry into whether the perpetual leases confers a right of exclusive possession. It is useful to highlight the key features of this history to understand the context and affects of land administration in the Western Division.

In 1884, New South Wales was divided into three areas of land administration under the Crown Lands Act 1884 (NSW) – the Eastern, Central and Western Divisions. The Western Division, covering nearly 80 million acres, or more than one third of New South Wales, is often described as the ‘dry-western f [62] 62">[62] and is largely a semi-arid to arid landscape. The environmental conditions in the Western Division made the area seem best suited to pastoral rather than agricultura [63]

Figure 1: New South Wales – Western Division shaded

In the years following the establishment of the Western Division, the pastoral industry in the region became unprofitable due to frequent periods of drought, sandstorms, rabbit plagues and the destruction of vegetation caused by over grazing. This led to the widespread abandonment of pastoral properties in the region. [64] In 1900, a Royal Commission was appointed by the NSW parliament to report on the difficulties facing pastoralists in the Western Division. The Royal Commission revealed ‘that there is hardly a solvent man in the western divisio [65] [65] and made recommendations to allow for increased acreage and longer terms for leases and the establishment of a government management board to oversee the pastoralists’ use o [66]

The NSW legislature’s response to the recommendations was the enactment of the WLA. The WLA was intended to provide greater security of tenure to enable pastoralists to obtain loans against the leases. During the Second Reading Speech in the Legislative Assembly on the Bill for WLA, the Secretary for Lands said:

… to bring the western division into a state to carry stock, there must be money expended upon it whether in water conservation, clearing, or scrubbing, and if these men [the present settlers] have no money, they must borrow to enable them to carry on. When a man lends money he naturally asks upon what security he is making the loan, and if the applicant can say, ‘Here I have an absolute lease for forty-two years…,’ then the man who contemplates lending the money can calculate his security. That is an absolute security, and the man who has money to lend knows what he is lending upon. [67]

Despite the enactment of the WLA, financial difficulties continued for pastoralists in the Western Division. In response, amendments were made to banking legislation in 1920 and the WLA in 1930 to address the difficulties. With regard to banking legislation, the Government Savings Bank (Rural Bank) Act 1920 (NSW) was passed, which enabled Commissioners of the Bank to conduct the work of a Rural Bank and to offer loans against leases granted under the WLA and other Crown lands legislation. Amendments to the WLA involved the extension of term leases granted under the WLA. Those terms due to expire in 1943 were extended to 30 June 1968. [68]

However, these efforts were not enough: ongoing drought and the onset of the Great Depression in the 1930s caused greater hardship. In 1934 the WLA was amended to allow for holders of existing leases and leases subsequently granted to be made in perpetuity. The grant of a lease in perpetuity was intended:

... to enabl[e] holders to obtain the necessary finances to carry them on. At present, as these are merely leases, it is impossible obtain advances on them, but if they are converted into perpetual leases, advances will be made upon the security of the holding. [69]

Initially, leases in perpetuity were only granted over ‘home maintenance areas’. These were areas ‘which when reasonably improved will carry in average seasons and conditions a sufficient number of stock to enable the holder to reasonably maintain an average family’. [70] ="#f70">[70] This was intended to prevent lessees of large pastoral holdings obtaining leases in perpetuity, particularly as large lease holdings covered 57 per cent of the Western Divisi [71] However problems in the Western Division remained, particularly for pastoralists on small leaseholdings.

The legislature then sought to reduce larger leaseholdings areas to supplement smaller areas in the hope that small leaseholders ‘may be placed in a position to increase their flocks, and consequently their incomes’. [72] [72] This approach was consistent with the strategy that had commenced with WLA – to withdraw land from large pastoral leaseholdings and make it available for smaller lease areas and, later, to satisfy the Government’s commitment to ret [73]

Following the Second World War, the NSW government enacted the War Service Land Settlement Act 1941 , which enabled land to be granted under a number of statutes, including the WLA, to discharged members of the forces. The High Court noted that the perpetual lease considered in Wilson v Anderson was granted under the War Service Land Settlement Act , to Ross Patrick Smith in 1953. [74]

The effect of land administration in western New South Wales

The High Court’s examination of the WLA is a legal history in which significance is given to changes in legislation and the effect of these changes of legal interests. Very little is said about the way in which this history affected Aboriginal people living on their traditional country.

In the 1820s and 1830s, squatters began following the routes of explorers such as Mitchell, Sturt and Oxley into western New South Wales. Driven by the expanding colony’s growing demand for beef and a developing economy of wool, squatters began illegally grazing new lands outside the ‘limits of location’. The ‘limits of location’ were defined by the colonial government in 1826 and only included settled districts around major centres such as Sydney. [75] href="#f75">[75] The purpose of the order was to contain the spread of settlement. Under this policy, land outside the limits of location could not be sold or leased and pastoral occupat [76]

This prohibition was ineffectual – squatters continued to push the boundaries of settlement. Unable to prevent the illegal occupation of these lands the colonial government introduced a system of annual occupation licences, allowing squatters to legally graze stock on land outside the limits of location. The incursion of early squatters into the areas outside the limits of location and unsettled by colonists resulted in violent clashes with Aboriginal traditional owners. The period between the 1840s and 1860s saw significant resistance by Aboriginal people and it appears during the 1840s that Aboriginal resistance around the Barwon River near Warrego temporarily prevented the intrusion of squatters and stock. [77]

The gold boom of the 1850s ushered in a new relationship between Aboriginal people and the squatters. Many of the European workers employed by squatters left the area to try their luck on the gold fields. As a result, Aboriginal people were able to successfully resist the further incursion of squatters into unestablished areas. Also, a new relationship emerged between Aboriginal people and squatters as established grazing areas required a new source of labour. This labour shortage resulted in the ‘dual occupation’ [78] [78] of large ho [79] Aboriginal people began to fill the labour shortage caused by the gold boom. This relationship provided squatters with labour and enabled Aboriginal people to continue to live on their traditional country and continue to engage in cultural activities. The dual occupation of land continued, with the establishment of large scale pastoralism in western New South Wales.

Further consequences of the gold boom were the increased levels of immigration to Australia and migration to remote areas. These areas had previously been dominated by squatters and large pastoral holdings. As a result, demand increased in remote areas for smaller holdings and the ‘unlocking of land’ held by pastoralists. This demand was consistent with the popular ‘closer settlement’ ideology:

What we want to do is to put people upon the land to make it productive …. I have patriotism enough in me to desire a better state of things for my country, and I think the time has come when steps should be taken to prevent the wholesale alienation of the land, and when every acre sold should represent population and productiveness. That is the way to make a nation. Do you think we shall ever make a nation with sheep-walks? I admit that sheep-walks are all very well; but they ought to give way to population, and those who occupy them must recede and give way when the land is required for bona fide occupation. I am not the only one who says that. That statesmen of England have said the same, for it is laid down in the old orders-in-council that the pastoral tenants or the squatters of those days – for squatters they really were then – might occupy the lands and make the best use they could of them; but that they must give way before the advancing tide of population. [80]

However, such an approach was inconsistent with the interests of squatter-pastoralists who were a wealthy and influential political force; and inconsistent with land use requirements in the Western Division, which determined that large scale pastoral leases were more able to sustainably support stock to operate a viable property.

Despite these issues, the Colonial Government began to legislate for the creation of smaller lease holding areas. However, it was not until the 1930s, under the WLA that the government began to succeed in reducing the majority of large pastoral holdings to small lease holding areas in western New South Wales.

In 1934, 57 per cent of the Western Division was held in large holdings; by 1941 only 37 per cent was covered by large holdings. [81] This approach continued throughout the 1940s and in 1949 an act was passed specifically to create home maintenance areas for returned soldiers settlement. By 1956, 83 per cent of the Western Division was held under the smaller perpetual lease. [82]

The widespread establishment of smaller lease holding areas in the Western Division had a significant impact on Aboriginal communities. Previously, the dual occupation relationship had allowed Aboriginal people to live on or near their traditional country. Following the establishment of the smaller lease holding area, Aboriginal people for the most part were unable to remain living on their traditional country and began to live on the fringes of townships. [83]

Consequently, the grant of perpetual leases created greater difficulties for the exercise and enjoyment of culture by Aboriginal people in the Western Division. However, these difficulties did not result in the end of Aboriginal culture and identity in these areas. Rather, Aboriginal cultural tradition and identity has adapted and evolved but continued [84] despite profound challenges. Within such survival are stories of resilience and strength that were not heard in the Wilson v Anderson decision and are unlikely to be heard in any of the other native title claims outstanding in the Western Division.

However, the non-recognition of Indigenous connection to country in the Western Division is not a result of a version of history that favours dispossession over resilience but as a result of the legal operation and effect of creating non-Indigenous interests on traditional land.

Extinguishment of Native Title in the Western Division

Following its analysis of the history of land administration in the Western Division, the High Court found that perpetual grazing leases could be classified as ‘freehold estate’ under s23B(2)(c)(ii) of the NTA and that they wholly extinguished native title. [85] [85] The Court reasoned that the lease in perpetuity as developed within NSW land law was similar in most instances to freehold, ‘with all the advantages and essence of [86] ="#f86">[86] – except for the performance of tenurial requirements im [87]

Native title in the Western Division had been considered prior to the Court’s examination of perpetual leases in Wilson v Anderson . The WLA was included in the amendments to the NTA. In those amendments, specific leases granted under s23 of the WLA and granted for the purpose of ‘agriculture, or any similar purpose; agriculture (or any similar purpose) and grazing combined; mixed farming or any similar purpose other than grazing’ were scheduled as a previous exclusive possession act under NTA s23B(2)(c)(i) with the effect that native title was extinguished in these areas. Significantly, the Commonwealth did not include perpetual grazing leases for extinguishment as a Scheduled interest. The Court noted this exclusion but found that the perpetual grazing lease was an exclusive lease and thus a previous exclusive possession act under NTA s23B(2)(c)(iv) or (viii) which also extinguished native title.

In a previous report by the Aboriginal and Torres Strait Islander Social Justice Commissioner the Schedule provisions of the NTA were described as the ‘blanket extinguishment’ of native title. [88] [88] It would now appear that this was a compelling forecast of the find Wilson v Anderson , which not only acknowledged extinguishment under the NTA, but added leases not included in the Schedule to the breadth of extinguishment.

The Western Division covers approximately 43 per cent of New South Wales and of this area over 96 per cent is held under Western lands leases. [89] The remaining 6 per cent is freehold, national parks, reserves, vacant crown land and other types of leases. [90] This is expected to have significant implications for native title in the area.

Figure 2: Western Division of NSW – Current Native Title Applications shaded

Figure 2 shows the location of the, currently, 20 native title applications in the Western Division filed in the Federal Court. The National Native Title Tribunal expects that 15 of these applications will be affected by the findings in Wilson v Anderson . [91] In addition to these findings, Western lands leases included as Scheduled interests under the NTA extinguish native title. As a result it is likely that native title will be extinguished over a significant area of the Western Division.

The Human Rights Implications of Extinguishment in the Western Division

The findings of extinguishment in Wilson v Anderson , the likely extent of these findings, and the effects of the NTA Schedule, have profound implications for the recognition and exercise of the human rights of Aboriginal people in the Western Division. Broadly, the extinguishment of native title in the Western Division impedes the right of Aboriginal people to enjoy their culture and exercise interests arising from the right of self determination, in particular the principle of effective participation in decision making as it relates to their traditional country. While successive New South Wales Governments have legislated to protect Indigenous interests, these measures do not comprehensively address the particular interests of Aboriginal people in western New South Wales.

Native title

Native title is defined by the traditional law and custom of a particular native title group – it is given specificity by the culture of the group. Wilson v Anderson /em> was decided in the absence of evidence presenting native title rights and interests. That is, it was contended that the existence of the lease provided a complete answer to the native title claim and the court agreed to decide this preliminary point on the assumption that native title rights and interests exist [92] Accordingly, evidence to establish native title was not required. The absence of evidence detailing connection and the content of native title rights and interests is reflected in the High Court’s judgment which is silent on the presence of Aboriginal people in the Western Division or the Euahlay-I Dixon people of the area under claim.

The absence of specified native title rights and interests in Wilson v Anderson limits the extent to which a discussion of the implications of the Court’s decision on the exercise of culture can be made. That is, without the specific rights and interests of the Euahlayi native title claimant group being known, it is difficult to discuss specifically how extinguishment will diminish the exercise and enjoyment of the claimants’ culture. However, by relying on generalised common law expressions of native title rights and interests, it is possible to identify significant implications for the exercise and enjoyment of culture arising from the extinguishment of native title rights.

Rights and interests recognised within native title processes and based on a particular claimant group’s traditional law and customs commonly include the right to:

• possess, occupy use and enjoy the area claimed;
• be acknowledged as the traditional owners for the application area;

• speak for and make decisions about the use and enjoyment of the application area; [93]

• reside upon and otherwise have access to and within the application area;
• use and enjoy the resources of the application area;
• maintain and protect areas of importance under traditional law and customs; and
• determine and regulate membership of, and recruitment to, the landholding group.

Broadly, these rights enable native title holders to be on the land under claim for the purpose of conducting activities on the land including; hunting, collecting bush foods and medicine and caring for places of importance. And the orders also allow for the recognition of native title holders as the traditional owners of the land with rights to make decisions about the use of the land.

Enjoyment of culture

The extinguishment of native title in western New South Wales and the subsequent failure to recognise and protect traditional rights and interests as provided by the mechanisms of the NTA impair the rights of Aboriginal people to enjoy their culture as required by article 27 of the ICCPR. This article 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 practice their own religion or, to use their own language.

Within international jurisprudence, this right also applies to Indigenous minorities. [94]

The NTA was intended to provide for the recognition and protection of the unique rights and interests of a native title holding group in relation to land and the use of land, and in doing so be guided by the standard of protection conferred by international covenants of ICERD, ICCPR and ICESCR. [95] However, there has been much commentary by Indigenous leaders and academics on the failure of the native title process to adequately recognise and protect traditional law and custom. Yet the recognition of native title rights and interests continues to be important in the exercise, recognition and protection of culture. In principle, the NTA is in accord with article 27 in that it provides for the recognition and protection of native title rights and interests and thereby supports the exercise and enjoyment of culture. However, the limitations of recognition and the extinguishment or non-recognition arising under the NTA or the common law are powerful blows to such enjoyment.

Following Wilson v Anderson many Aboriginal people in western New South Wales do not have rights under the NTA to go on to country and collect food, look after areas of importance, or just be on country. They are not acknowledged as the native title holders of country, based on their traditional law and custom and do not have rights to talk about the future of their country or to participate in caring for country.

However these findings of extinguishment or non-recognition under the NTA will not, in practice, result in the extinguishment or non-recognition of Indigenous laws and customs, within an Indigenous framework.

Indigenous law… continue[s] to operate regardless of the intrusions of Australian law. It continues to allocate rights and interests in country, dictate the nature of social interactions and acts as the basis of Indigenous social, cultural and political identity. [96]

That is not to say that extinguishment or non-recognition arising from the NTA does not impact or impair the enjoyment of culture. On the contrary, it can significantly disrupt, prevent and undermine cultural interests particularly as they relate to the practice of culture in relation to land – the core feature of the native title system. Yet Indigenous cultural traditions will continue with or without statutory recognition and protection under the NTA. This is consistent with the history and experience of Indigenous Australians prior to Mabo /em> and is likely to be consistent with the experience of Aboriginal people in western New South Wales follow Wilson v Anderson .

Since the early 1990s there has been greater acknowledgement of the unique status and special value of Indigenous culture to Australia’s national identity. The decision in Mabo , the enactment of the NTA, the establishment of ATSIC, and the Reconciliation movement, have provided a greater acknowledgement and respect for the special value of Indigenous culture. Accompanying this recognition has also been a growing awareness of the need to redress Indigenous disadvantage.

The recognition of the special value of Indigenous culture within the Australian national identity accords with human rights standards which observe the special contribution of minority cultures to the cultural identity of the state, advising that: [ICCPR] Article 27 is directed to ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. [97]

It requires that:

States should recognise and duly support the identity, culture and interests of Indigenous people and their communities. [98]

These standards also require that the enjoyment of culture, religion and use of language as required by article 27 may require positive legal measures of protection [99] to the extent that:

… a State party is under an obligation to ensure that the existence and the exercise of this right is [sic] protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. [100]

The failure of the native title system to recognise and protect Indigenous rights and interests in western New South Wales and secure the protection of cultural interests requires a response. From a human rights perspective, an appropriate response may be one that seeks to ameliorate and negotiate findings of extinguishment and provide a level of protection to Indigenous interests in the Western Division.

Self determination and effective participation

The recognition of native title rights and interests not only affords native title holders the protection and recognition of traditional rights and interests but also provides for the opportunity to participate in decision making in relation to their land and negotiate in relation to future acts on their country. [101] Broadly, the future act provisions and rights of decision making allow for the opportunity of native title holders to exercise rights of self determination and effective participation.

The right of self determination and principle of effective participation are founded in article 1 of ICCPR and ICESCR. These conventions state:

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

The principle of effective participation is also drawn from article 27 of ICCPR and article 5 of ICERD. Article 5 of ICERD requires that all peoples have the right to equal treatment before the law [102] and the right to participate in the conduct of public affairs. 103 CERD’s General Recommendation on Indigenous Peoples recommends that States:

Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent. [104]

In an Australian context, the right of self determination is controversial. The Commonwealth Government maintains that a right of self determination for Aboriginal peoples is symbolic and distracts from the need to overcome Indigenous disadvantage. [105] It appears the Commonwealth also views a right of self determination as a possible basis on which Indigenous Australians could seek to establish a separate state. [106] However, this approach disregards international discussion on the right of self determination, specifically as it applies to the rights of Indigenous peoples in colonized states.

There is a strong presumption against secession or independence flowing from the right of self determination in the colonial setting. The United Nations is strenuously opposed to any attempt to disrupt territorial integrity. The principle of uti possedetis (the respect for colonial boundaries) is stated in the General Assembly Resolution on the Granting of Independence to Colonial Countries and Peoples. [107]

Importantly, the right of self determination is broad in its application and meaning. Contemporary analysis of the right supports the recognition of external and internal self determination but also emphasises that it is an ongoing process of participation rather than a one time choice. [108] There are two types of self determination that are often described, internal and external. External self determination refers to the right to determine the political status of a people and its place in the international community, including the right to establish a separate State. Internal self determination is broadly described as ‘participatory democracy [109] 109] For minority groups within States, including Indigenous groups, it can refer to cultural, linguistic, religious or political autonomy. Hence internal self determination, in particular, is focused on participation as opposed to outcome focus – enabling peoples to participate and determine their political, social, cultural and economic status, with the focus of this participation being the opportunity to  [110]

The role and purpose of self determination in Australia should, therefore, be directed to the full participation of Indigenous Australians in determining their political, economic, cultural and social status:

The right of self determination of Indigenous peoples should ordinarily be interpreted as their right to negotiate freely their status and representation in the State in which they live. This might best be described as a kind of ‘belated State-building’, through which Indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed and just terms, after many years of isolation and exclusion. This does not mean the assimilation of Indigenous individuals as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms. [111]

However, in relation to the rights of Aboriginal people in the Western Division to effectively participate in decisions affecting their traditional lands, the native title system has failed in two respects. First, the 1998 amendments to the NTA were drafted with little participation of Indigenous peoples. Rather the Commonwealth’s approach was that of ‘balancing interests’ which in effect has balanced the interest in land against Indigenous peoples. The second failure arises from the amendments to the NTA which result in the wholesale extinguishment of rights and interests as occurred in Wilson v Anderson . The extinguishment of native title ensures that Aboriginal people in western New South Wales are denied the opportunity to effectively participate in decisions relating to their traditional country. The deprivation of these rights has important implications for the opportunity of Aboriginal people in the Western Division to determine their economic, social and cultural future.

The extinguishment of native title has a twofold effect in relation to a right of self determination and the principle of effective participation. First, findings of extinguishment or non-recognition are applied to Aboriginal traditional owner communities, essentially without their participation. This was clearly demonstrated in Wilson v Anderson . The findings of extinguishment were determined by the legal implications of the land administration process. Indigenous rights and interests as recognised under the NTA are determined not by Indigenous people but by the operation of the NTA.

In some instances, Indigenous rights and interests are not recognised under the NTA because their culture and community identity fail to satisfy the definitions of traditional law and custom determined by the NTA. Such a process fails to instill Aboriginal communities with a sense of empowerment and self determination but can easily disempower and further dispossess. Conversely, recognition of Indigenous rights and interests, under the NTA, lays an important foundation for the exercise of self determination by Indigenous communities.

Secondly, extinguishment deprives Indigenous people the opportunity to effectively participate in decisions affecting their traditional country. Recognised native title rights and interests commonly include a right which enables native title holders to ‘care for country’. This right clearly has a cultural foundation and from a human rights perspective allows for the effective participation of native title holders in ‘caring’ for traditional land. Within ‘caring for country’ and effective participation, the future act provisions within the NTA also ensure that native title holders have important procedural rights in relation to acts that may affect their rights and interests in land. Procedural rights under the future act regime have provided native title holders in a number of Aboriginal communities throughout Australia with the opportunity to benefit culturally, socially and economically through the negotiation of agreements between native title holders and developers. However, extinguishment under the Wilson v Anderson decision deprives Aboriginal people in the Western Division of access to the future act provisions of the NTA and of the right to ‘care for their country’.

Response to a Human Rights Approach

The findings of Wilson v Anderson deny Aboriginal people in western New South Wales the recognition and protection of rights and interests under the NTA. This denial has implications for the human rights of Aboriginal people in western New South Wales to practice their cultural traditions and exercise self-determination. The opportunity to exercise a right of self determination is undermined by the extinguishment of rights determined by traditional law and custom and the opportunity to negotiate meaningful agreements based on those rights. In consideration of human rights standards, and in acknowledgement of the ongoing relationship of Aboriginal people in the Western Division to their traditional country, it is incumbent upon the New South Wales government to offer a meaningful response to the extinguishment of native title in the Western Division.

Outstanding issues remain following the findings of extinguishment in Wilson v Anderson . While some of these may be addressed by other state-based legislative structures, they may be more appropriately and effectively addressed within a comprehensive framework. Some of these issues include: land access for traditional purposes, site and heritage protection, land and water management arrangements, governance structures and service delivery, and economic development opportunities that may have arisen from rights arising from native title recognition.

This range of issues can equitably and effectively be addressed through the negotiation of regional agreements. Endorsed by ATSIC, regional agreements are defined as:

… a way to organize policies, politics, administration and/or public services for or by an Indigenous people in a defined territory of land or land and sea. [112]

Based on, but not limited to the legal requirements of the NTA and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cwlth), agreements may be negotiated on a broad range of issues, including:

• Land access
• Exploitation of land resources
• Co-management of land/marine resources
• Service delivery agreements
• Self government or local government

However, it is anticipated that regional agreements will not only deal with specific issues but will adopt a holistic approach and address broader issues that may affect a community or region, including land, the economic base and the social and political infrastructure.

Regional agreements and regional governance have been identified as a way in which Indigenous disadvantage may be addressed through the recognition of Indigenous rights and the capacity building of communities. [113]

The development of governance structures and regional autonomy provides the potential for a successful meeting place to integrate the various strands of reconciliation. In particular, it is able to tie together the aims of promoting recognition of Indigenous rights, with the related aims of overcoming disadvantage and achieving economic independence. [114]

The Commonwealth Government has also supported the role of regional agreements and capacity building in addressing Indigenous disadvantage. [115] However, there are growing concerns that the type of regional agreements and governance structures endorsed particularly by the Commonwealth Government will fail to deliver meaningful recognition of Indigenous rights, effective community capacity building and meaningful governance structures.

The Harvard Project on American Indian Development in North America [116] is recognised as providing an important analysis of strategies to overcome Indigenous disadvantage. The project concludes that good governance structures and genuine self rule for Indigenous communities are fundamental in overcoming Indigenous disadvantage. The Project identifies five main features of good governance: real self determination or sovereignty; the building of effective governing institutions; an effective cultural match between these institutions and Indigenous traditions; long-term strategic thinking; and leadership from individuals or groups, in the community’s interest.

While the findings of the Harvard Project are frequently referred to by Government as an effective model for overcoming disadvantage, such references are made in a way which re-defines a key feature of good governance – self determination. Based on the findings of the Harvard Project it is unlikely that agreements and governance structures that fail to support genuine self determination and governance will be successful in overcoming disadvantage.

The negotiation of regional agreements within the Western Division could provide an opportunity for the New South Wales Government to respond to findings of extinguishment in a spirit of reconciliation. Meaningful regional agreements are capable of addressing many of the outstanding land issues following the decision and provide a foundation for the economic and social development of Aboriginal communities in western New South Wales.

1 Wilson v Anderson and or’s /em> [2002] 29 (8 August 2002) Wilson v Anderson ’).

2 Western Australia v Ward and or’s /em> [2002] 28 (8 August 2002) Miriuwung Gajerrong ’).

3 Wilson v Anderson , op.cit., at [126].

4 Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1.

5 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [231].

6 ibid., at [221].

7 ibid., at [219].

8 ibid., at [249] (emphasis added).

9 Summary of s226 of the NTA – definition of an ‘act’.

10 The summary of the effect of the RDA on the vesting of reserves, see Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [249]-[253].

11 ibid., at [252].

12 Gerhardy v Brown (1985) 159 CLR 70.

13 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [253] (emphasis added).

14 For the Court’s summary of the operation of s23B of the NTA, see ibid., at [254]-[261].

15 Statistical information provided by the National Native Title Tribunal (‘NNTT’): letter from NNTT to Human Rights and Equal Opportunity Commission, 8 November 2002.

16 Department of Conservation and Land Management (WA), Background to a draft policy statement on ‘Aboriginal involvement in Nature Conservation and Land Management’, August 2000.

17 D O’Dea, ‘Post Determination Negotiations’ Native Title Conference 2002: Outcomes and Possibilities , Geraldton, 3-5 September 2002.

18 NNTT, WA’s Martu people achieve native title recognition in Western Desert , media release 27 Sept 2002

19 The Gibson Desert Nature Reserve: Traditional Owners and Cultural Landscape , prepared by Dr Lee Sackett. Courtesy of Ngaanyatjarra Council.

20 I note the WA Government has previously included land within a national park ‘to protect Aboriginal heritage values’, from www.calm.wa.gov.au/forest_facts/rfafs_indigenous_new.html>, accessed 23 September 2002.

21 Preamble, NTA

22 Australia has agreed that the international treaties it joins, including human rights treaties, should be implemented throughout the nation and that the existence of different levels of government provides no reason for Australia’s international obligations to be neglected in any part of the country (art 27 of Vienna Convention on the Law of Treaties /em>, 1155 UNTS 331, Australia ratified 1974). Even though the primary responsibility for implementing treaties falls on the national government, every organisation within the nation must refrain from breaching the provisions of the two main human rights treaties (art 5(1) of ICESCR and ICCPR both state ‘Nothing in the present Covenant may be interpreted as implying for any..group or person any right to .. perform any act aimed at the destruction of any of the rights and freedoms recognised herein’). Other international standards imply obligations directly on individuals or organisations (‘Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in...promoting human rights and fundamental freedoms’ Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms , UN General Assembly resolution 8 March 1999, UN doc A/RES/53/144).

23 Human Rights Committee, General Comment 23 , Article 27 (1994) para 7, in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies UN doc HR/GEN/1/Rev.1, p147 (‘HRC General Comment 婪).

24 ibid. at para 6.1.

25 D Smyth, ‘Joint Management of National Parks’ in J Baker, J Davies, & E Young (e Working on Country – Contemporary Indigenous Management of Australia’s Lands and Coastal Regions , Oxford University Press, South Melbourne, 2001.

26 660 UNTS 195 (‘ICERD’) (Australia joined in 1975).

27 Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous people , UN doc CERD/C/51/Misc.13/Rev.4 (1997) (‘CERD General Recommendation 婪) at para 4(d).

28 HRC General Comment 23, op.cit., para 7.

29 The World Commission on Environment and Development was established in 1983 by the United Nations. The purpose of the Commission was to re-examine critical environment and development problems and develop strategies to ensure future development would be at sustainable levels.

30 The World Commission on Environment and Development, Our Common Future , Oxford University Press, 1987.

31 Rio Declaration on Environment and Development , UN document A/CONF.151/26 (12 August 1992), endorsed by UNGA on 22 December 1992 (UN doc A/RES/47/190, para 2) (‘Rio Declaration’), Principle 1.

32 ibid., Principle 4.

33 ibid., Principle 22.

34 World Summit on Sustainable Development, The Johannesburg Declaration on Sustainable Development , 26 August – 4 Sept 2002, UN A/Conf.199/L.6/Rev.2, Johannesburg Declaration ’), para 5.

35 UN Department of Economic and Social Affairs, Global Challenge, Global Opportunity, Trends in Sustainable Development , World Summit on Sustainable Development, Johannesburg, 26 Aug – 4 Sept 2002.

36 B Jones quoted in TW Kheel, ‘Sustainability: Rio to Johannesburg, A Very Long Journey In Pursuit of A Still Elusive Goal’ in The Earth Times, posted August 11, 2002 at www.earthtimes.org/aug/sustainabilityriotoaug11_02.htm> accessed 10 December 2002.

37 ibid.

38 op.cit.

39 Johannesburg Declaration, op.cit., para 5.

40 Johannesburg Declaration, op.cit., para 7.

41 ibid., para 11 and 12.

42 ibid., para 32.

43 ibid., para 25.

44 The Western Australian Government uses the term ‘sustainability’ in preference to ‘sustainable development’. From the P Newman paper (infra.), sustainable development has been appropriated by some mining companies who use the term ‘sustainable development’ to advocate profits and energy growth with little regard for its true meaning.

45 Government of Western Australia, Focus on the Future: Opportunities for Sustainability in Western Australia , December 2001.

46 ibid.

47 P Newman, Sustainability and Planning: A Whole of Government Approach, Institute for Sustainability and Technology Policy , Murdoch University and Department of the Premier and Cabinet, Western Australia.

48 See S Kinnane, Beyond the Boundaries: Exploring Indigenous Sustainability Issues , August 2002.

49 S Kinnane, Beyond the Boundaries, Exploring Indigenous Sustainability Issues , Prepared for the Sustainability Policy Unit, WA Department of Premier and Cabinet, April 2002.

50 ibid., page 6.

51 WA Labour Party, Indigenous Affairs Policy Statement , page 1.

52 FJ Walsh, ‘The relevance of some aspects of Aboriginal subsistence activities to the management of national parks: with reference to the Martu People of the Western Desert’, in J Birckhead, T De Lacy & L Smith, L (e Aboriginal Involvement in Parks and Protected Areas , Australian Institute for Aboriginal and Torres Strait Islander Studies Report Series, Aboriginal Studies Press, Canberra, 1992.

53 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities , adopted by the UN General Assembly in 1992, UN doc A/RES/47/135, 18 December 1992.

54 ibid., art 2(2).

55 Vienna Declaration and Programme of Action , UN document A/CONF.157/23, 25 June 1993: endorsed by United Nations General Assembly on 20 December 1993 (UN doc A/RES/48/121, para 2).

56 ibid., part I para 20 (also part II para 31).

57 CERD General Recommendation 23, op.cit., para 4(d).

58 HRC General Comment 23, op.cit., para 7.

59 CERD, Concluding observations by CERD: Australia , UN doc CERD/C/304/Add.101, 19 April 2000, para CERD, Decision 2(54) on Australia , UN doc A54/18 para 21(2), 18 March 1999, para 9.

60 Earlier grants of freehold to Aboriginal traditional owners on conservation areas have been made on the condition of a leaseback arrangement. Such a practice is unnecessary to ensure the ongoing conservation interest in the area. Indigenous Protected Areas or other management mechanisms, can be employed to maintain the ongoing conservation role without undermining the grant of freehold. For example, the Gurig National Park in the Northern Territory.

61 Wilson v Anderson , op.cit., at [92].

62 CJ King, An outline of closer settlement in New South Wales , Sydney, New South Wales Department of Agriculture, 1957, at 164.

63 New South Wales, Parliamentary Debates , Legislative Assembly, First Series, Session 1883-1884, at 351-52.

64 Anderson v Wilson [2000] FCA 394 (5 April 2000), per Beaumont J at [169].

65 Wilson v Anderson , op.cit., per Gaudron, Gummow and Hayne JJ, at [71].

66 Anderson v Wilson , op.cit., per Beaumont J at [176].

67 Wilson v Anderson , op.cit., per Gaudron, Gummow and Hayne JJ, at [71].

68 ibid., at [72].

69 ibid., at [73].

70 Western Lands (Amendment) Act 1932 , s 3 quoted in Anderson v Wilson , op.cit., per Beaumont J at [177].

71 Anderson v Wilson , op.cit., per Beaumont J at [179].

72 Minister for Lands (New South Wales, Parliamentary Debates, Legislative Assembly 17 May 1934 at 401) quoted in Anderson v Wilson op.cit., per Beaumont J at [180].

73 See generally, Parliament of New South Wales. First Report of the Joint Select Committee of the Legislative Council and Assembly to Enquire into the Western Division of New South Wales , Parliamentary Paper No 151, Government Printer 1983, at 297-301.

74 Wilson v Anderson , op.cit. per Gaudron, Gummow and Hayne JJ at [75].

75 L Godden, ‘Wik: Feudalism, Capitalism and the State. A Revision of Land Law in Australia?&# Australian Property Law Journal , 5 (2&3), 1997, page 176.

76 CJ King, An Outline of Closer Settlement in New South Wales: Part 1, The Sequence of the Land Laws 1788-1956, Division of Marketing and Agricultural Economics , Department of Agriculture, NSW, 1957, pp 39-40.

77 RL Heathcote, Back of Bourke , Melbourne University Press, 1965.

78 H Goodall, A History of Aboriginal Communities in New South Wales, 1909-1939 , Phd Thesis, University of Sydney, 1982.

79 H Allen, Where the Crow Flies Backwards: Man and Land in the Darling Basin , Phd Thesis, Australian National University, 1972.

80 Secretary for Lands, Mr Farnell, Legislative Assembly Debate 7 November, 1884, New South Wales Parliamentary Debates , First Series, Session 1883-84, pp.331-332.

81 CJ King, An Outline of Closer settlement in New South Wales , op.cit.

82 First Report of the Joint Select Committee of the Legislative Council and Legislative Assembly to Enquire into the Western Division of New South Wales , Parliament of New South Wales, 1983.

83 JR Beckett, ‘Kinship, mobility and community in rural New South Wales’, in I Kee Being Black, Aboriginal Cultures in ‘settled’ Australia , Aboriginal Studies Press, Canberra, 1988, page 122.

84 ibid.

85 Wilson v Anderson , op.cit., per Gaudron, Gummow and Hayne JJ at [92].

86 ibid., at [116].

87 Tenurial requirements ensured that retention of title was dependent on the lessee satisfying certain requirements. In relation to the WLA leases these requirements included; requirement of residence on the lease area, that the lease be used for the purpose of grazing stock and that the lease not be transferred, conveyed, assigned or sub-let without the consent of the Minister: ibid., at [112]-[113].

88 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996-97 , Human Rights and Equal Opportunity Commission, Sydney, 1997, p78.

89 Anderson v Wilson , op.cit. per Beaumont J at [159].

90 NNTT, ‘Native Title and the Western Division of New South Wales’, 16 August 2002.

91 NNTT, Talking Native Title in NSW , September 2002.

92 Anderson v Wilson , op.cit. per Black CJ, Beaumont and Sackville J, Explanatory Statement.

93 The right to make decisions about the use of the land has been recognised in a number of native title determinations, including Mualgal People v State of Queensland and Ors [1999] FCA 157, Hayes v Northern Territory [2000] FCA 671 and Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory of Australia 00] FCA 923. However, the reasoning in Miriuwung Gajerrong stions the appropriateness of a right to make decisions about the use of the land in a non-exclusive context. See Miriuwung Gajerrong questions the appropriateness of a right to make decisions about the use of the land in a non-exclusive context. See

94 HRC General Comment 23, op.cit., para 3.2.

95 Preamble, NTA.

96 K Muir, ‘This Earth Has an Aboriginal Culture Inside’, in AI Land, Rights, Laws: Issues of Native Title , Issues Paper No. 23, July 1998.

97 HRC General Comment 23, op.cit. at para 9.

98 Rio Declaration, op.cit., principle 22.

99 HRC General Comment 23, op.cit., at para 7.

100 HRC General Comment 23, op.cit., at para 6.1.

101 NTA, Preamble and Part 2, Division 3 of which sets out the procedures for the administration of future acts under the NTA.

102 ICERD, op.cit., art 5(a).

103 ibid., art 5(c).

104 CERD, General Recommendation 23, op.cit. at para 4(d).

105 The Hon. J Herron, Minister for Aboriginal and Torres Strait Islander Affairs, Statement on behalf of the Australian Government at the 17th session of the United Nations Working Group on Indigenous Populations , Canberra, 29 July 1999, p7.

106 A Crabb, ‘Stand-off on indigenous rights&# The Age , 26 December 2002.

107 J Debeljak, ‘Barriers to the recognition of Indigenous peoples’ human rights at the United Nations’ Monash University Law Review 159, p171.

108 M Praag, C Van Walt, ‘Report to the International Conference of Experts held in Barcelona from 21-27 November 1? The Implementation of the Right to Self-Determination, as a contribution to conflict prevention , UNESCO, Division of Human Rights, Democracy and Peace, UNESCO, Centre of Catalonia.

109 ibid., p26.

110 For further discussion on self determination as the opportunity to ‘live well’ see Aboriginal and Torres Strait Islander Social Justice Commiss Social Justice Report 2002 , chapter 2.

111 E Daes, Discrimination against Indigenous people – Explanatory note concerning the draft declaration on the rights of Indigenous peoples , UN doc E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, para 21.

112 Quoted in Aboriginal and Torres Strait Islander Comission (‘ATSIC&# Regional Agreements Manual , 2001.

113 See Commonwealth Grants Commission, Report on Indigenous Funding 2001 , Canberra, ߑ ATSIC, Resourcing Indigenous development and self-determination – a scoping paper , ATSIC, Canberra 2000.

114 Aboriginal and Torres Strait Social Justice Commissioner, Social Justice Report 2000 , Human Rights and Equal Opportunity Commission, Sydney, 2000, p107.

115 The Hon. P Ruddock, Minister for Immigration and Multicutural and Indigenous Affairs, Agreement making and sharing common ground , speech at ATSIC National Treaty Conference, 29 August 2002, www.minister.immi.gov.au/atsia/media/transcripts02/treaty_conf_ 0802.htm>.

116 For a detailed discussion on the findings of the Harvard Project and the Commonwealth Government’s interpretation of these findings Social Justice Report 2002 , op.cit., pp 41-44.

19 March 2003.