Native Title Report 2002: Native title: the way forward

Chapter 5: Native title: the way forward

Levels of Reform

• Mechanisms of Change Tier one: amending Commonwealth legislation The criteria for determining the relationship between Indigenous and non-Indigenous interests on the same land at common law fail to provide for the co-existence of these interests The NTA prescribes the extinguishment of native title in respect of an extensive range of tenures The NTA fails to adequately provide for compensation for the extinguishment of native title in the majority of cases Tier two: amending State and Territory legislation Tier three: agreements

• The NTA prescribes the extinguishment of native title in respect of an extensive range of tenures

• The NTA fails to adequately provide for compensation for the extinguishment of native title in the majority of cases

• Tier two: amending State and Territory legislation

• Tier three: agreements

Beyond Native Title

In the past 12 months the High Court has handed down several significant decisions which clarified the principles upon which the recognition and extinguishment of native title are determined. These principles are set out and discussed in the first three chapters of this report. In clarifying these principles, some of the Judges of the High Court have been mindful of their effect on Indigenous people.

Justice Callinan expressed the view in Miriuwung Gajerrong [1] that the law of native title fails to resolve, and thus continues to be flawed by, the incommensurability between Indigenous relationships to land and the common law concepts of property to which it is compared and subjected. The resolution of this paradox in the current law of native title means native title gives way to non-Indigenous interests every time.

I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance. I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols. It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law. [2]

Justice McHugh also commented in that decision upon the injustice of a system in which the comparison of competing legal rights inevitably results in the further dispossession of Indigenous interests.

The dispossession of the Aboriginal peoples from their lands was a great wrong. Many people believe that those of us who are the beneficiaries of that wrong have a moral responsibility to redress it to the extent that it can be redressed. But it is becoming increasingly clear – to me, at all events – that redress can not be achieved by a system that depends on evaluating the competing legal rights of landholders and native title holders. The deck is stacked against the native title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. And it is a system that is costly and time-consuming. At present the chief beneficiaries of the system are the legal representatives of the parties. It may be that the time has come to think of abandoning the present system, a system that seeks to declare and enforce the legal rights of the parties, irrespective of their merits. A better system may be an arbitral system that declares what the rights of the parties ought to be according to the justice and circumstances of the individual case. Implementing such a system in the federal sphere may have constitutional difficulties but may not be impossible. At all events, it is worth considering. [3]

These calls from the bench for legal reform occur within a decision which marks the end of the development phase of native title law. The way in which the legislation and the common law apply to extinguish native title is clearly explained and the consequences for Indigenous people are starkly apparent. It is thus appropriate that in such a decision, and at such a juncture in the development of the law, members of the bench express their considered views on the system and evaluate it against a broader notion of justice.

It is also appropriate, now that the law has been crystallised, that a similar process of evaluation take place at the political level. This is particularly pressing in view of the Court finding in Miriuwung Gajerrong that the Native Title Act 1993 (Cwlth) (‘NTA’) rather than the common law directs the native title processes of extinguishment and recognition, confirming the primary role of the Commonwealth in the protection of native title. Thus the decision brings to a close a period of ten years, in which the responsibility for the protection of native title was conveniently shifted between the legislature and the comm [4] The Commonwealth must now accept responsibility for the law as it stands and, equally importantly, re-evaluate the means by which the law can be changed to make it consistent with Australia’s international law obligations.

From a human rights perspective there are two factors which must direct the reform of the native title system. First, all decisions affecting native title must be taken with the free and informed consent of Indigenous people. This requires the establishment of a process for the effective participation of Indigenous people as part of the broader reform process. Negotiation with Indigenous people must occur at all levels. Where the capacity of Indigenous people to participate is hampered, either through limited resources or limited decision-making structures, provision must be made to address these deficiencies to enable genuine negotiation to take place.

Second, the benchmarks for reform must be the human rights of Indigenous people. A non-discriminatory approach to protecting Indigenous people’s inherent right to land is one guided by the principles set out on pages 74-78, above. General Recommendation 23 of the Committee on the Elimination of Racial Discrimination (discussed at pages 85-86, above) provides a useful guide for a human rights approach to policy or legislative initiatives concerning Indigenous people.

A non-discriminatory approach to the protection of native title measures the extent to which the law permits Indigenous property rights to be enjoyed against the extent to which the law permits the enjoyment of other property rights. Thus the law must provide native title with the protection necessary to ensure it can be enjoyed, according to its tenor, to the same extent as non-Indigenous interests in land. Constructed in this way, native title law should be a vehicle for the continued enjoyment and protection of Indigenous law and culture.

The High Court decisions that this Report considers squarely raise the effect on native title of past legislative and executive acts that took place before the NTA. Clearly these acts continue to have an effect on the present and future enjoyment and protection of Indigenous rights. The effect of these past acts, and the means by which law reform can redress this effect, is the focus of this chapter. In addition, the enjoyment of native title rights are affected by future dealings on traditional land. The NTA establishes the framework by which native title is afforded protection from these dealings. While the procedural rights of native title holders in respect of future dealings on native title land was dealt with extensively in my 2001 report [5] it is not the focus of the reform process posited in this section.

Levels of Reform

There are various levels at which reform of the native title system can take place. The most obvious level is the legislative one, given that the NTA controls the level of protection afforded native title. Clearly changes would have to occur at this level although the recognition and protection of native title may not ultimately depend on legislation. For instance, the recognition and protection of Indigenous rights to land may be enshrined in a treaty or agreement which supersedes statutory rights. [6] Alternatively, rights might be protected on a number of levels with ultimate protection residing in the constitution.

Whatever the final outcome, a human rights approach to the reform process must consider whether, and in what way, the present native title system could be changed to make it consistent with Australia’s international human rights obligations. In considering reform at this level I do not seek to map out every possible or preferred legislative amendment to the NTA. Rather I seek to identify the broad areas in which reform is required and the underlying mechanisms by which injustices can be redressed. Against this approach of reforming the present system must be weighed the benefits of enshrining Indigenous rights to land in a completely different protective system to that which presently exists, such as an arbitral system suggested by Justice McHugh. [7] While consideration of such alternative systems is beyond the scope of this Report, they must be seriously considered in view of the legal tests established to gain recognition of native title and the difficulty of changing the fundamental assumptions of these tests within the current system as it is governed by the NTA.

Mechanisms of Change

The High Court has made it clear that the NTA now directs the native title processes of extinguishment and recognition through s10 and s11 of the NTA.

The chief mechanism by which the NTA effects both the protection of native title and its extinguishment is through prescribing what State and Territory laws are valid and the conditions and effect of their validity. State and Territory Governments are then authorised to enact legislation which extinguishes native title in accordance with the NTA. Thus there are two tiers by which the extinguishment of native title takes place: first at the level of Commonwealth legislation and the nature of the authority that this legislation gives to State and Territory governments; and second at the level of State and Territory legislation and the enactment of legislation that extinguishes native title. There is a third tier by which the extinguishment of native title may take place; through agreements between stakeholders. These three tiers need to be addressed in any reform process.

Tier one: amending Commonwealth legislation

The process of amending the NTA to make it consistent with human rights principles must utilise the mechanisms of ‘validity’ and ‘invalidity’ to redress the balance between protection and extinguishment controlled by the NTA. These mechanisms determine the nature and extent of the laws that can have an extinguishing effect on native title. As the High Court said in Western Australia v The Commonwealth om [8] a law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate.

The way in which the NTA addresses legislative and executive acts that took place before the NTA’s enactment, is to either confirm their validity and extinguishing effect under the confirmation provisions, or validate their extinguishing effect (for acts otherwise invalid because of the Racial Discrimination Act 1975 (Cwlth) (‘RDA’)) under the validation provisions. The common law continues to operate without legislative interference, through the application of the inconsistency of incidents test, to extinguish, either completely or partially, native title interests. NTA section 47B then operates to exclude from this umbrella of validation and extinguishment an exception where connection can be shown on vacant crown land currently occupied by members of the claimant group.

The decisions in Miriuwung Gajerrong and Wilson v Anderson [9] have established the common law tests for extinguishment and the ease with which native title rights and interests can be permanently extinguished by the creation of other interests on traditional land. It is now necessary that the mechanisms available under the NTA be utilised to redress the wholesale extinguishment of native title. In chapter 2, I set out my concerns with the limited extent to which the mechanisms available for the protection of native title are utilised in the NTA. These can be summarised as follows.

The criteria for determining the relationship between Indigenous and non-Indigenous interests on the same land at common law fail to provide for the co-existence of these interests

The mechanism available to provide for co-existence of native title and non-Indigenous interests, and already utilised in relation to future acts in the NTA, is the non-extinguishment principle. The elements of the definition of the principle of non-extinguishment are identified in s238 of the NTA as: native title is not extinguished; where other interests are inconsistent with the continued existence and enjoyment of native title rights and interests, the native title rights and interests have no effect in relation to the other interests, and; where the other interest or its effects cease to operate, native title rights and interests have full effect.

Thus the non-extinguishment principle may be seen to represent a compromise between two competing interests, allowing non-Indigenous interests to be given full enjoyment and Indigenous interests to be suspended where their enjoyment is inconsistent with the creation or enjoyment of non-Indigenous interests and then to resume on their cessation. While the non-extinguishment principle still prioritises non-Indigenous interests over Indigenous ones, it is nevertheless far preferable to the permanent extinguishment of native title. It is a principle that, in my view, should replace the finality and permanency of extinguishment for the majority of tenures. [10]

The High Court in Miriuwung Gajerrong said that the non-extinguishment principle had no place in the common law of extinguishment. [11] Thus the possibility, extant in the NTA, that the grant of a non-exclusive pastoral lease would not extinguish native title but that ‘the native title rights and interests are suspended while the lease … is in [12] 12">[12] was given limited application. The Court thought it might apply to ‘a post-1975 grant which, by operation of the RDA, was ineffective to extinguish native title rights a [13] but did not see the non-extinguishment principle in the NTA as mandating a similar approach in the common law.

The effect of the finding that the non-extinguishment principle has no operation in the common law is that many tenures, in addition to those specified in the NTA, extinguish native title rights and interests permanently, and that this extinguishment has a cumulative effect as new tenures are created over the same land. Thus, as discussed in chapter 2, [14] the enjoyment of native title is impaired by layers of extinguishment over the entire history of colonisation, each tenure permanently affecting the title and diminishing its content progressively.

The non-extinguishment principle, on the other hand, allows the enjoyment of native title rights to be completely restored once a non-Indigenous tenure ceases to exist. It is within the power of the Commonwealth to inscribe this more equitable principle into native title law.

In order to do this the NTA would need to stipulate that the extinguishment principle, as applied by the common law to past tenures, no longer applies and is replaced by the non-extinguishment principle. This could be done through stipulation in the NTA that the non-extinguishment principle applies, either by a general provision to this effect with particular exceptions identified, or by identifying tenures the creation of which would have a non-extinguishing effect. In relation to non-exclusive leases for instance, the NTA would need to stipulate that the non-extinguishment principle applied rather than leaving this to the common law. Another tenure that would require identification in this way is a mining lease, which in the Miriuwung Gajerrong decision was found to extinguish some native title rights and interests, even though, in the validation provisions of the NTA, the non-extinguishment principle applies. This disjuncture could be resolved through legislative amendment in the way suggested.

The example of nature reserves in Western Australia, which, at common law, are found to extinguish native title completely raises the concern that for some tenures, stipulating the non-extinguishment principle would not be sufficient to allow the full potential of co-existence to be realised. As discussed in chapters 2 and 4 both these interests can be fully enjoyed without impairment of the Indigenous interest. Consequently the non-extinguishment principle, which allows non-Indigenous interests to prevail over native title, may not be appropriate to promote the full enjoyment of native title rights. Interests that complement each other in this way must be identified and specifically addressed to ensure full enjoyment of the traditional connection that Indigenous people have with the land. In chapter 4, I suggest a particular way in which this might be achieved, [15] although other options could also be consistent with human rights principles and negotiated with the traditional owners concerned.

The NTA prescribes the extinguishment of native title in respect of an extensive range of tenures

In addition to the extinguishment principle applying through the common law, it is also given operation in the confirmation and validation provisions of the NTA, which stipulate this as the effect of creating specified tenures and classes of tenures. [16] Again, the non-extinguishment principle should replace the extinguishment principle for the majority of these tenures. [17]

The NTA fails to adequately provide for compensation for the extinguishment of native title in the majority of cases

Even on the basis that the non-extinguishment principle applies to ensure recognition of the ongoing relationship between Indigenous people and the land, impairment of native title rights will occur where a non-Indigenous interest is created on traditional land. As discussed in chapter 2, the present provisions of the NTA limit compensation for the extinguishment and impairment of native title rights to those situations where statutory extinguishment or impairment exceeds that which would have occurred either at common law or where compensation would have been available by virtue of the RDA. It makes no provisions for compensation for extinguishment or impairment by the common law or under the confirmation provisions. The Commonwealth Government has the legislative capacity to redress this injustice. Protection against the arbitrary deprivation of property is a fundamental tenet of our legal system and should be available to Indigenous as well as non-Indigenous titleholders.

Before leaving the sphere of Commonwealth legislation, and the possibilities for change within it, it is necessary to include one specific amendment to the NTA that requires immediate attention. In Chapter 1, I note the comments of the High Court in relation to section 82 of the NTA and the effect of the amendment to this section which gave greater emphasis to the rules of evidence in native title cases. [18] The Court noted:

It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act. ... It may be that, under [the original NTA]... a rather broader base could be built for drawing inferences about past practices than can be built since the 1998 [NTA] Amendment Act came into operation. By that Act a new s 82 was enacted [stating]...that the Court is bound by the rules of evidence “except to the extent that the Court otherwise orders”. [19]

In view of the almost insurmountable barrier that this provision erects to Indigenous claimants seeking to prove the content of laws and customs based on an oral tradition, section 82 should be amended and the original provision reinstated.

Tier two: amending State and Territory legislation

The NTA, through the validation and confirmation provisions, stipulates that the effect of creating specified tenures or classes of tenures is to extinguish native title either completely or partially. Under this authority, State and Territory Governments are left to enact legislation which extinguishes native title in respect of these tenures. Without this authority, State and territory legislation extinguishing only native title interests would be discriminatory and invalid under the RDA.

While States and Territories are given immunity from the operation of the RDA by the NTA, they are not required by the NTA to enact discriminatory legislation extinguishing native title in respect of the tenures specified therein. Thus they have capacity to control whether, or the extent to which, native title is extinguished or impaired by the creation of these specified tenures. For example, the complementary Western Australian legislation authorized by the confirmation provisions of the NTA, the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 , rather than fully implementing the regime permitted by the NTA, limited the extinguishing effect of creating leases and scheduled interests identified in the confirmation provisions (excluding freehold) to those tenures still in force on 23 December 1996.

There is an enormous capacity for State and Territory Governments to redirect native title law towards a non-discriminatory goal. A framework for negotiations between the Western Australian Government and Aboriginal stakeholders in relation to conservation estates, including nature reserves, is proposed in chapter 4. Importantly any such negotiation process, whether it involves amending State and Territory legislation or reaching an agreement, requires the effective participation of Indigenous stakeholders and, through this process, their informed consent.

Tier three: agreements

A concept which appears to be given general support from government, industry and Indigenous parties alike, is the benefit of negotiating native title, its recognition and its relationship to other interests on the land, through agreement rather than litigation. This process can include the making of a native title determination by the Federal Court with the consent of the parties. My Native Title Report 2001 discusses the need to ensure agreements are framed by human rights principles rather than discriminatory principles contained in the NTA. [20] Thus framed, regional agreements are seen as an important tool for providing a stable and enduring basis for a dynamic and long term relationship between Indigenous and non-Indigenous people over land.

In chapter 4, I discuss the utility of a regional agreement in the Western Division of NSW where traditional interests in land have been found, by the High Court in Wilson v Anderson , to be extinguished.

Agreements are also a useful tool, either at a regional level or between specific claimant groups and other stakeholders, in overcoming the almost insurmountable difficulties of proving the elements of a native title claim to a court. Agreements can proceed from a less technical and onerous test than that established by the courts in the Yorta Yorta [21] and De Rose [22] decisions as discussed in chapter 1. A looming difficulty with this alternative approach to recognition is the monitoring role that the Commonwealth Government is increasingly assuming in consent determination proceedings with a view to ensuring that the orders made by a court are not inconsistent with the legal standards proposed in the NTA as interpreted by the High Court. [23] It would be unfortunate if, through such interference, technical and discriminatory standards were injected into a process aimed at avoiding lengthy and costly litigation.

Beyond Native Title

The recognition of native title came from an acknowledgement of important truths about our past and the need to reconcile these truths with contemporary notions of justice. But it also brought to the fore a fundamental conflict arising at the time of the establishment of Australia as a colony; that is the conflict between the assertion on the one hand that the settlement of Australia gave rise to exclusive territorial jurisdiction by the colonial power and, on the other hand, the illegality and immorality of asserting this right without an agreement from those who previously occupied that land and who continue to maintain their deep spiritual economic and social connection to the land. Miriuwung Gajerrong confirms that native title, while valuable in first giving recognition to inherent rights, is not able to resolve this conflict.

The Yorta Yorta decision demonstrates how the High Court’s construction of sovereignty continues to limit the recognition that native title is able to give to the profound relationships between Indigenous people and their land. This is not a just resolution of our nation’s fundamental conflict. Rather, it must be resolved through a process which emphasises co-existence and mutual benefit. Negotiation based on consent and equality can transform what was a contradiction at the foundation of our nation between the conflicting claims of Indigenous and non-Indigenous people to the jurisdiction of traditional lands, into an agreement as to the basis of our coexisting sovereignty. Within the framework of such an agreement native title can break out of the shackles that continue to restrain its evolution.

1 Western Australia & o’rs v Ward & o’rs [2002] HCA 28 (8 August 2002) (&# Miriuwung Gajerrong ’).

2 ibid., per Callinan J at [970].

3 ibid., per McHugh J at [561].

4 See, e.g. Commonwealth of Australia, Additional Information pursuant to Committee Decision: Australia , UN doc CERD/C/347, 22 January ߏ and Commonwealth Attorney-General’s Departme Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund Inquiry: Consistency of the Native Title Amendment Act 1998 with Australia’s obligations under [ICERD] , 29 February 2000.

5 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001 , Human Rights and Equal Opportunity Commission, Sydney, 2002. The Native Title Report 2001 commented on procedures adopted by the National Native Title Tribunal (‘Tribunal’) (pp16-24). During 2001, the Aboriginal and Torres Strait Islander Social Justice Commissioner had written to the Tribunal regarding its procedures. The Tribunal responded to the Commissioner but the Tribunal’s letter was not received in time to be incorpor Native Title Report 2001 commented on procedures adopted by the National Native Title Tribunal (‘Tribunal’) (pp16-24). During 2001, the Aboriginal and Torres Strait Islander Social Justice Commissioner had written to the Tribunal regarding its procedures. The Tribunal responded to the Commissioner but the Tribunal’s letter was not received in time to be incorporated in the

6 For discussion of a treaty, see various documents produced by the Aboriginal and Torres Strait Islander Social Justice Commissioner: - Native Title Report 2000 , Human Rights and Equal Opportunity Commission, Sydney, 2001, pp29-. - Native Title Report 2001 , op.cit., pp1- and - Recognising Aboriginal sovereignty – implications for the treaty process , speech at presented at ATSIC National Treaty Conference, Tuesday 27 August 2002.

7 In Miriuwung Gajerrong , op.cit., at [561].

8 (1995) 183 CLR 373.

9 Wilson v Anderson and or’s [2002] HCA 29 (8 August 2002).

10 Tenures would need to be considered on a case by case basis. An example of a tenure where extinguishment rather than non-extinguishment might apply is the grant of freehold title.

11 Per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].

12 s23G(1)(b)(ii).

13 Miriuwung Gajerrong , op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].

14 See particularly pages 67-69.

15 See particularly pages 108-112.

16 Also see Summary of the Validation and Confirmation of Extinguishment Provisions in the Native Title Act 1993 , annexure 3.

17 A grant of freehold is an obvious exception.

18 Pages 30-31.

19 Members of the Yorta Yorta Aboriginal Community v Victoria & o’rs [2002] HCA 58 (12 December 2002) (&# Yorta Yorta ’), per Gleeson CJ, Gummow & Hayne JJ at [80]-[81]

20 Native Title Report 2001 , op.cit., pp87-105.

21 op.cit.

22 De Rose v State of South Australia [2002] FCA 1342 (1 November 2002).

23 The Hon. D Williams, Attorney-General, ‘Native title: the next 10 years’, Add Native Title Conference 2002: Outcomes and Possibilities , Geraldton, 4 September 2002, para’s 38-40.

19 March 2003.