Native Title Report 2010: Executive Summary

Native Title Report 2011

Executive Summary

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• Executive Summary

• Chapter 1: Reviewing key developments in the Reporting Period

• Chapter 2: Lateral violence in native title: our relationships over lands, territories and resources

• Chapter 3: Giving effect to the Declaration

• Chapter 4: Options for addressing lateral violence in native title

• Conclusion

Executive Summary

It is with great pleasure that I present my second Native Title Report as the Aboriginal and Torres Strait Islander Social Justice Commissioner. I launched my first Report, the Native Title Report 2010 in February 2011. These reports are produced each year in accordance with the requirement under the Native Title Act 1993 (Cth) (Native Title Act) for me to report annually on the impact of the Native Title Act on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples. [1]

In last year's Native Title Report and Social Justice Report I identified the priorities to guide me in my work as Social Justice Commissioner. [2] These priorities include ensuring the principles of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are given full effect in Australia and also promoting the development of stronger and deeper relationships:

• between Aboriginal and Torres Strait Islander peoples and the broader Australian community
• between Aboriginal and Torres Strait Islander peoples and governments
• within Aboriginal and Torres Strait Islander communities.

In the Native Title Report 2010, I built on this framework in the context of our rights to our lands, territories and resources and outlined four broad themes in native title and land rights that I will focus on during my term. In the Native Title Report 2011, I concentrate on two of these themes:

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

• enhancing our capacity to realise our social, cultural and economic development aspirations, including through strengthening our communities. [3]

Chapter 1: Reviewing key developments in the Reporting Period

In this Chapter, I review key developments within the native title system that occurred throughout the Reporting Period (1 July 2010 to 30 June 2011) and consider the impact of these events on the exercise and enjoyment of Aboriginal and Torres Strait Islander peoples' human rights.

Guided by the Declaration I review a number of legislative changes and consultation papers in light of whether they contribute to the creation of a fair and equitable system to recognise and adjudicate our rights to our lands, territories and resources. I also review some significant moments which mark the ongoing operation of the Native Title Act and consider developments at the international level which impact on our rights to our lands, territories and resources.

At the national level the Reporting Period was quiet in terms of legislative amendment to the Native Title Act. However, there were a number of proposals which, if enacted, could prove to have a substantial effect on the native title system.

Senator Siewert of the Australian Greens introduced a private Senators Bill which, if passed, would significantly reform the Native Title Act. [4] In addition, the Australian Government introduced a bill to give legislative effect to its Carbon Farming Initiative. [5]

In the previous reporting period, two other pieces of native title reform legislation were introduced but not enough time had passed for me to effectively report on their operation in last year's Report. [6] Now that sufficient time has passed, we are able to have a better understanding of their effect during the Reporting Period.

At the State level, the State of Victoria passed the Traditional Owner Settlement Act 2010 (Vic) which sets the benchmark for other states to meet when resolving native title claims.

I also discuss a number of consultation papers which have relevance to our rights to our lands, territories and resources. Given the possible effect of the proposed changes on our rights, it is important that the Australian Government engages meaningfully and effectively in order to obtain our free, prior and informed consent. These include:

• Draft Indigenous Economic Development Strategy Discussion Paper
• Leading practice agreements: maximising outcomes from native title benefits Discussion Paper
• Native Title, Indigenous Economic Development and Tax Consultation Paper
• Stronger Futures in the Northern Territory Discussion Paper.

Independent of the legislative changes and proposals, the native title system continues to lumber on. Whether the system is fair or delivers justice is questioned, however until appropriate reform is progressed we must make the best of what we have. Native title parties continue to make applications for native title, continue to reach agreements, and continue tirelessly, to seek remedy in some way to the injustices of the past. In this Chapter I note two milestones worthy of reflection:

• the registration of the 500th Indigenous Land Use Agreement
• South Australia's first compensation application for the extinguishment of native title.

I also consider developments in international human rights law that concern native title and our rights to our lands, territories and resources. I urge the Australian Government to consider these developments and further implement its commitment to supporting human rights. These developments include:

• Expert Mechanism on the Rights of Indigenous Peoples 2010
• United Nations Permanent Forum on Indigenous Issues 2011
• Australia's appearance at the Universal Periodic Review
• Australia's appearance before the Committee on the Elimination of Racial Discrimination.

Finally, in what will be the first in a series of annual ‘Report Cards', I provide an assessment of the Australian Government's performance across a range of issues, including its progress towards implementing my recommendations from the Native Title Report 2010, and draw some concluding observations about progress made during the Reporting Period. In all, the Reporting Period has been a mixed bag for our communities trying to navigate the native title system.

Throughout my term I will continue to advocate for a system that allows us to fully realise our rights as set out in the Declaration and I will continue to use the Native Title Report as a tool to monitor and assess developments that impact on our rights.

Chapter 2: Lateral violence in native title: our relationships over lands, territories and resources

In Chapter 2, I start a conversation about lateral violence and the ways that we, as Aboriginal and Torres Strait Islander peoples, can create the foundations for strong relationships with each other.

Lateral violence is often described as ‘internalised colonialism' and according to Richard Frankland includes:

[T]he organised, harmful behaviours that we do to each other collectively as part of an oppressed group: within our families; within our organisations; and within our communities. When we are consistently oppressed we live with great fear and great anger and we often turn on those who are closest to us. [7]

These behaviours might include bullying, gossiping, jealousy, shaming, social exclusion, family feuding and organisational conflict, which can and often does escalate into physical violence.

The theory behind lateral violence explains that this behaviour is often the result of disadvantage, discrimination and oppression, and it arises from working within a society that is not designed for our way of doing things.

Our history of colonisation in Australia has created an environment where Aboriginal and Torres Strait Islander peoples are relatively powerless and lateral violence is able to thrive. [8] This history, including the dispossession of our lands and waters, is an ongoing experience for many Aboriginal and Torres Strait Islander peoples as non-Indigenous peoples and organisations continue to control the structures, processes and policies that provide access to wealth and power.

Lateral violence occurs in native title because the non-Indigenous process imposed by government reinforces their position of power and reignites questions about our identity. Concepts of power and identity are aggravated in native title because of the inherent contradiction between past government policies in Australia that removed our peoples from our country [9] and the current requirement under the Native Title Act for us to prove continuing connection to our lands and waters since the arrival of the British.

Native title can reinforce the imbalance of power between non-Indigenous peoples and Aboriginal and Torres Strait Islander peoples as well as positions of authority within our communities. For government and industry, the native title process can be used to affirm their control, access to and use of lands and resources. Within our communities, native title can be used to promote positions of authority as we deal with our history of powerlessness and oppression, and questions about our identity.

I argue in Chapter 2 that native title itself can generate positive outcomes for Aboriginal and Torres Strait Islander peoples by recognising our rights to and interests in our lands and waters.

However, often this potential is not realised and the process that we need to follow to prove our native title provides opportunities for lateral violence within our families, communities and organisations. I set out the native title process and explain how – at each stage of the native title process – lateral violence can be generated.

I also report on two case studies that demonstrate how Aboriginal and Torres Strait Islander communities themselves can minimise the impact of lateral violence in native title: the Quandamooka People's native title consent determination on North Stradbroke Island in Queensland; and the Right People for Country Project in Victoria.

Chapter 3: Giving effect to the Declaration

In Chapter 3, I examine how the Declaration can guide the development of healthier relationships, not only with governments, industry and the wider Australian community but also within our Aboriginal and Torres Strait Islander families, communities and organisations.

I consider how the Declaration can build legislative and policy frameworks such as native title to ensure that they comply with international human rights standards and principles and as a result, empower Aboriginal and Torres Strait Islander peoples to reach their full potential and to respond to lateral violence when it occurs.

Lateral violence requires a human rights based response that uses the following key principles that underpin the Declaration.

Self-determination

Self-determination as it applies to Indigenous peoples ‘is the right of a group of peoples to meet the human needs [10] of that group, including the means to preserve that group's identity and culture'. [11]

Achieving self-determination is difficult because of the dichotomy of a government that focuses on the pursuit of individual wealth creation and Aboriginal and Torres Strait Islander peoples who may pursue self-determination as individuals or groups within a cultural context that focuses more broadly on social, cultural and environmental as well as economic benefits.

Participation in decision-making and free, prior and informed consent

The denial of our right to participate in decision-making and the deterioration of our community norms and protocols increases the potential for conflict resulting in lateral violence. In order to avoid this outcome, our participation in decision-making must be underpinned by the principle of free, prior and informed consent.

This principle should be the basis upon which to develop all frameworks of engagement with Aboriginal and Torres Strait Islander peoples and is fundamental to ensuring our effective participation in decision-making on issues that affect us. Securing commitment to these key principles early on in the native title process also ensures that the frameworks and processes do not further exacerbate existing conflicts or create new ones.

Non-discrimination and equality

Discrimination and inequality perpetuates lateral violence in three ways:

• Racial discrimination reinforces negative stereotypes about Aboriginal and Torres Strait Islander peoples, which can become internalised and generate lateral violence.
• Lateral violence thrives in environments where our human needs (such as acceptance, access and security needs) are not met.
• Equality requires acknowledgement of cultural difference and recognition that historical discrimination has continuing negative impacts.

Governments need to remove existing structural and systemic impediments to healthy relationships within our communities and reinforce protections against race discrimination. In the native title context, this will improve relationships between traditional owners and governments, and facilitate positive relationships between traditional owners and external parties to native title negotiations.

Respect for and protection of culture

The native title system and other land rights and cultural heritage processes directly question our culture and our cultural identities. This has been a source of considerable conflict and lateral violence and this will continue until appropriate structures are established with Aboriginal and Torres Strait Islander peoples that promote, maintain and protect our culture.

Therefore, the recognition of Aboriginal and Torres Strait Islander cultures and cultural differences must be a key consideration in policy development and implementation in Australia. The Declaration provides a strong basis from which Aboriginal and Torres Strait Islander peoples can affirm their rights and define their aspirations in their relations with governments and other stakeholders around development with culture and identity.

In relation to native title, the Declaration assists us to develop responses to lateral violence that:

• empower us to take control of our community and community aspirations
• promote and develop our community decision-making and dispute resolution protocols
• address discrimination and negative stereotypes by promoting equality that recognises difference
• build culture as a form of resilience and strength that promotes healthy cultural norms and recognises differences and diversity.

Chapter 4: Options for addressing lateral violence in native title

Chapter 4 considers options for addressing lateral violence in environments concerning our lands, territories and resources. These options aim to provide Aboriginal and Torres Strait Islander peoples and communities with some ideas about how to address lateral violence through the establishment of strong structural foundations and principles.

The Chapter also discusses options for governments to provide support to Aboriginal and Torres Strait Islander peoples to address lateral violence played out in native title processes. It demonstrates how the Declaration can be applied as a human rights framework to guide the creation and maintenance of an environment where Aboriginal and Torres Strait Islander communities can reach their full potential. In applying a human rights-based approach, the following options may assist to address lateral violence in the native title and land rights environment.

Naming lateral violence

Naming lateral violence is essentially a process of education. It is about giving our communities:

• the language to name lateral violence behaviour
• the space to discuss its impact
• the tools to start developing solutions.

The native title system must foresee when lateral violence is likely to occur and be equipped to identify it and address it. This means that engaging in native title processes requires solid preparation and robust frameworks to accommodate the potential for disagreement and conflict, and enable people to work through it.

Legislative and policy review and reform

Legislative and policy review and reform can assist Aboriginal and Torres Strait Islander communities to address lateral violence by creating structures that promote healthy relationships both within our communities and with external stakeholders. These structures should involve a strengths based approach that is informed by human rights standards and applied to both governments and communities.

The Attorney General's Department has progressed a number of native title reforms to move towards a more flexible approach that encourages negotiated outcomes and discourages litigation and adversarial approaches. However, it is my view that we cannot simply reform the native title system in isolation to the broader legislative and policy framework and hope that this will ‘fix' the native title system. In order for the native title system to be as effective as possible, the legislative and policy framework within which it exists must also support its operation.

On 27 January 2011, Australia appeared before the Human Rights Council Universal Periodic Review (UPR). [12] The Human Rights Council recommended that Australia revise its Constitution, legislation, public policies and programs to enable the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples. [13]

We currently have three opportunities to progress legislative and policy reform that would respond to this recommendation and significantly improve the operation of the native title system. These are to:

• ensure that the unique and inherent rights of Aboriginal and Torres Strait Islander peoples are protected under the National Human Rights Framework
• reform the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, and prohibit discrimination on the basis of race
• maintain efforts aimed to create a just and equitable native title system.

Culturally relevant frameworks

The process to recognise our native title must be culturally relevant if it is to achieve successful outcomes for Aboriginal and Torres Strait Islander peoples. Otherwise, the native title system will continue to operate in ways that exclude and divide Aboriginal and Torres Strait Islander peoples and communities. We will continue to be disempowered and struggle amongst ourselves to define our own destinies.

Whether commencing a native title claim process, negotiating an Indigenous Land Use Agreement or establishing a Prescribed Body Corporate, we need appropriate frameworks for participation, decision-making and conflict management to prevent behaviours that result in lateral violence. These preventative measures need to be negotiated with the affected groups as early on in the process as possible:

... at the outset of any native title agreement-making process, there is a need for the negotiation of an agreed decision-making and dispute management framework amongst the Indigenous parties as a prerequisite to the successful implementation and sustainability of agreements. [14]

These measures will assist those involved to set up guidelines for engagement, identify historical and contemporary issues and possible points of contention, and establish protocols for managing conflict that can lead to lateral violence behaviours.

Conclusion

In conclusion, I highlight the need to ensure that legislative and policy frameworks advance the rights of Aboriginal and Torres Strait Islander peoples and empower us to reach our full potential in accordance with the Declaration.

The recognition of our native title provides a unique opportunity for many Aboriginal and Torres Strait Islander peoples to overcome disadvantage.

But the native title system must operate in a way that empowers us to achieve this outcome. It must be supported by strong foundations that ensure our self-determination and enable our effective participation in decision-making.

[1] Native Title Act 1993 (Cth), s 209. [2] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011); M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2010, Australian Human Rights Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/index.html (viewed 18 July 2011). [3] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011). [4] Native Title Amendment (Reform) Bill 2011 (Cth). [5] The Government's Bill received assent on 15 September 2011 and is now the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). [6] Native Title Amendment Act (No 1) 2010 (Cth), Native Title Amendment Act 2009 (Cth). [7] R Frankland and P Lewis, Presentation to Social Justice Unit staff, Australian Human Rights Commission, 14 March 2011. [8] R Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever Business': a framework for maintaining and restoring cultural safety in Aboriginal Victoria (2010), p 19. [9] The Protection Acts that governed the removal of Aboriginal and Torres Strait Islander peoples can be found at AIATSIS, To Remove and Protect, http://www1.aiatsis.gov.au/exhibitions/removeprotect/index.html (viewed 21 September 2011). [10] For a discussion on human needs theory, see Chapter 2 of the Social Justice Report 2011. [11] UNESCO, ‘Conclusions and recommendations of the conference' in van Walt van Praag (ed) The implementation of the right to self-determination as a contribution to conflict prevention, 1999, p 19. [12] The Universal Periodic Review is a unique process, established by the Human Rights Council to review the human rights records of every country. See United Nations Office of the High Commissioner for Human Rights, Universal Periodic Review, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx (viewed 20 September 2011). [13] Human Rights Council, Report of the Working Group on the Universal Periodic Review Australia, UN Doc A/HRC/17/10 (2011), rec 106. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 September 2011). [14] Visiting Research Fellow, Toni Bauman has published a Native title Research Unit Issues paper which sets out some of the process issues, practical implications and techniques arising out of IFAMP's case study. See T Bauman, ‘Waiting for Mary: Process and Practice Issues in Negotiating Native Title Indigenous Decision-making and Dispute Management Frameworks' (2006) Vol. 3, Issues Paper No. 6. Land, Rights, Laws: Issues of Native Title, p 1. At http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip06v3n6.pdf (viewed 12 October 2011).