Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Editors --- "Native Title Report: January - June 1994 - Digest" [1996] AUIndigLawRpr 38; (1996) 1(2) Australian Indigenous Law Reporter 292

Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Reports

Section 209(1) of the Native Title Act 1993 (Cth) requires the Aboriginal and Torres Strait Islander Social Justice Commissioner to report annually on the operation of the Act and the effect of the Act on the exercise and enjoyment of human rights by Aboriginal peoples and Torres Strait Islanders.

The first and second reports by Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Michael Dodson, cover the periods January - June 1994 and July 1994 - June 1995 respectively. Reproduced below are the "Executive Summary" of the first report, and the "Introduction" and "Recommendations" of the second report.

Aboriginal and Torres Strait Islander Social Justice Commissioner

Canberra: Australian Government Publishing Service, April 1995

Chapter 1 - The Native Title Act

The Native Title Act 1993 (Cth) (`NTA') is a complex piece of legislation. Its provisions constitute an attempt to balance many competing interests. The degree to which the balance reflected in the content of the Act and in its interpretation and application adequately protects the human rights of Indigenous peoples is a central theme of this report.

In chapter 1, I have reviewed the features of the NTA and some significant aspects of its application. In the course of this review I have noted certain areas in the operation of the Act that I believe are of concern. In particular, I have reservations as to whether the claims procedure is operating in a way that provides appropriate access to Indigenous peoples to achieve recognition of their ownership of land. Significant defects in the procedure for seeking a determination of native title include the requirements in the regulations for claimant applications and the existence of the acceptance test, which creates a serious obstacle to even beginning to prove a claim to land. Another important difficulty which has been experienced by Indigenous peoples in attempting to use the claims procedure is the inadequacy of the funding which has been provided to representative bodies.

Although some provisions of the NTA are clearly directed to the protection of native title, the Act also allows for the validation of invalid past acts. This process facilitates the extinguishment or impairment of native title. While the Act sets up a system of compensation for native title holders whose rights are affected by the validation of past acts, it is important to remember that compensation does not undo a breach of Indigenous peoples' human rights. It is necessary that the criteria for assessing entitlement to compensation for native title holders are capable of accommodating Indigenous relationships to land. If the criteria fail to recognise unique characteristics of Indigenous land ownership then compensation will be granted on a discriminatory basis.

An important and controversial aspect of the NTA is the right to negotiate. The right to negotiate is a key component of the regime for future acts affecting native title and it is an essential entitlement which allows native title holders some control over activities on their land. Notwithstanding that its application is already limited, there have been many proposals to further restrict its scope and to exclude certain categories of acts from the requirement. I have reviewed some of the proposals to amend the right to negotiate provisions and I consider that there is no justification for changing the provisions at this stage. Many of the concerns that give rise to the proposals to restrict the right to negotiate are exaggerated or misconceived. These proposals should be rejected and the concerns which give rise to them should be balanced against the rights of native title holders to participate in decision making about their land.

The Act anticipates that State and Territory legislatures will enact complementary legislation. A relevant issue in this regard is the recognition of State bodies and the conferral on these bodies of jurisdiction in relation to native title. It is critical that the institutions that administer native title are able to understand the concerns of Indigenous people and that those institutions operate in a way that is in keeping with the national approach to the recognition and protection of native title.

An issue which I have briefly considered is the complex relationship between native title and statutory schemes for granting land to Indigenous peoples. The recognition of native title is a new and significant event that must be accommodated into these schemes.

Chapter 2 - Human Rights

The recognition of native title was more than a recognition of Indigenous property interests, it is also about the recognition of our human rights. While the tendency has been to examine the impact of the NTA in terms of economic criteria, the true test for the NTA is the degree to which it protects the human rights of Aboriginal and Torres Strait Islander people.

Human rights are those minimum entitlements or standards that are recognised internationally as applying to all people. The Australian Government and many other nations have acknowledged that these rights are inherent, inalienable and universal by becoming signatories to the international instruments that outline minimum human rights standards. Relevant instruments which Australia has ratified include the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Also relevant is the International Labour Organisation Convention No: 169 and the Draft Declaration on the Rights of Indigenous Peoples. While ILO 169 has not been ratified by Australia and the Draft Declaration is not finalised, both documents provide an important gauge as to the standards required to be upheld by the international community. In particular, the Draft Declaration reflects the standards expected by the international Indigenous community.

The provisions of ratified conventions constitute obligations that are binding in international law on the Australian Government and international human rights standards are also influential in the way judges shape the common law. Indeed, one significant motivation for the High Court in rejecting the common law doctrine of terra nullius was to ensure that the common law did not repudiate international standards.

These international instruments are relevant to native title in that they protect property against arbitrary and discriminatory interference and they provide rights to the free exercise of culture. It is the expectation of the international community that Australia will comply with these standards in its treatment of the property rights of Indigenous peoples. The Commonwealth Government appeared to be conscious of its obligation to maintain human rights standards when it passed the Native Title Act but the Act does not offer complete protection of native title and it does not completely guard against the infringement of Indigenous people's human rights.

Some emerging issues are vital to the question of whether the Act adequately protects Indigenous human rights. The legal definition of native title must be broad enough to fully accommodate Indigenous land relationships and Indigenous law.

If the content of native title is not fully consistent with Indigenous systems of land tenure then the treatment of native title will become a means of assimilation rather than recognition. The legal means of proving native title claims must be culturally sensitive, procedures must be accessible and resources available to allow Indigenous peoples to assert and protect their property rights. Extinguishment of native title is a breach of Indigenous human rights. The Government clearly believed that this breach was a necessary compromise in balancing the competing interests. By contrast, I maintain that extinguishment of native title should be kept to a minimum. Co-existence between native title and other interests should be given effect where possible and native title should be understood to revive after the expiry of a granted interest.

Commonly, proper recognition of Indigenous human rights and a non-discriminatory accommodation of native title as a property right will require something other than the treatment of native title as equivalent to title granted by the Crown. For example, where native title holders are compensated it is not sufficient to treat the loss of native title as nothing but loss of an economic resource. Land to Indigenous peoples is not understood solely in economic terms and the criteria for compensation will have to take this into account in order for native title holders to be treated in a way that is genuinely equal to other property holders.

In addressing all the specific issues that have arisen and will continue to arise in relation to native title, it is vital to keep the nature of that title in perspective. Native title is a property right. It is the very foundation of Indigenous culture and well-being and the non-discriminatory protection of it is a recognised human right.

Chapter 3 - Extinguishment

The question of where native title has been extinguished in the past is fundamental to the operation of the Native Title Act. Because the NTA is focused on the presence of native title, the processes by which Australian governments can validly extinguish native title is a central issue. Apart from constitutional and statutory limitations on extinguishment, there are also important common law rules which may place limits on the extent to which native title is found to be destroyed by past acts. The extent of common law restrictions on the extinguishment of native title is presently unclear.

The NTA only clarifies when extinguishment has occurred with regard to invalid acts that have been validated in accordance with the NTA. However, most acts which may affect native title are not invalid and therefore do not attract the validation provisions. The effect of these acts on native title is left to the common law. The common law rules about extinguishment are consequently of fundamental relevance to the proper recognition of Indigenous property rights and to the operation of the NTA.

In Mabo [No:2]1 the High Court was not clear on when the common law considers native title to be extinguished. The ambiguity in this area of law is even more apparent after consideration of common law precedents in other jurisdictions which conflict with the approaches adopted by the High Court. Chapter 3 examines these approaches and the issues involved.

It is clear that native title can be extinguished through legislation that manifests the legislature's intention to extinguish clearly and unambiguously. That much is consistent with case law from Canada, New Zealand, the United States and England. The degree to which native title can be extinguished by legislation which does not reveal such an intention but is merely inconsistent with native title is less clear. In my view, legislation that lacks clear and unambiguous words professing the intention to extinguish does not have the effect of destroying native title rights.

Aspects of the judgments in Mabo [No:2] also suggest that native title may be extinguished by an inconsistent grant. This proposition is at odds with the general common law rule that, while the Parliament can take away anyone's property interest, the executive can only do so after it has received clear legislative authorisation. I reject the notion that an inconsistent grant by the executive without legislative authorisation can extinguish native title. If the executive acts without authorisation then it is acting beyond its power and I see no justification for native title to be extinguished as a result. I refer to a number of common law determinations in other jurisdictions to support my view.

Even accepting the suggestion that inconsistent grants extinguish native title, a crucial issue remains to be resolved that is, what amounts to inconsistency? Whether or not a lease extinguishes native title depends upon the way inconsistency is interpreted. It is my view that the most equitable way to apply the test for extinguishment by inconsistency is by only allowing inconsistency to extinguish when the inconsistency exists in fact and not when it is merely a matter of theory. In other words, only when a grant is actually used in a way that is irreconcilable with the continuation of native title should that grant be said to affect native title rights. The requirements that must be fulfilled in order for native title to be extinguished should be strict because the consequence of extinguishment is the destruction of property rights.

The key factors which influence my discussion and conclusions in this chapter are the strong presumption against extinguishment of native title referred to in Mabo [No:2], the common law presumption against extinguishment of property interests without legislative authority, the possible existence of a fiduciary duty imposed on the Crown and the fact that many past grants could well be wrongful at law and to hold that wrongful acts extinguish native title would be manifestly unjust.

It is clear from the discussion in this chapter that the issue of extinguishment and the effect of inconsistent grants on native title is an open legal question. The most important consideration in working out the issues around extinguishment is the people who may be dispossessed as a result of the way the legal principles develop. Regardless of what the common law says, the legitimacy of the extinguishment of native title can only be determined by native title holders themselves. It may be that the High Court will accept the view that native title can be extinguished by inconsistent grants irrespective of any inconsistency in fact. Ultimately, such court decisions and the consequences of them will be judged by the Indigenous people whose rights are affected. If the law clings to abstract administrative dealings to assert that Indigenous people's property rights have been obliterated, the law will be understandably perceived as barren and devoid of justice.

Chapter 4 - The National Native Title Tribunal

The National Native Title Tribunal (`the Tribunal') is set up under the NTA and is given significant functions in relation to native title including accepting applications, conducting inquiries about certain applications and dealing with special references from the Commonwealth Minister. In opposed applications the Tribunal directs mediation between the parties. The Tribunal also has a series of functions that require it to make determinations on particular issues. For example, the Tribunal makes determinations in relation to the acceptance test for claimant applications and determines unresolved right to negotiate proceedings.

Given this jurisdiction, it is clear that the Tribunal is a significant part of the regime for the recognition and protection of native title set up under the NTA. Indigenous peoples are concerned that its procedures are accessible, culturally appropriate, flexible and that its determinations are enforceable. On this last issue an important concern is whether the Tribunal structure offends the separation of judicial and administrative powers. A recent High Court decision that struck down the registration and enforcement of determinations of a non-judicial body in the Federal Court has made finding a solution to this problem urgent. Any changes to the structure of the Tribunal which may be implemented to cure the problems arising from the separation of powers must maintain the goals of providing accessible, affordable and equitable procedures for Indigenous peoples.

I identify some areas of the Tribunal's operations in which I believe problems have arisen. In particular, I consider that some of the regulations relating to claimant applications are inappropriate and I consider that the Tribunal's requirements for mapping of claim areas have sought excessive detail. One danger that I see in requiring claimants to provide significant detail of their claims before they can gain access to the Tribunal is that in the process the native title claimed will be transformed from an Indigenous land relationship into a foreign and unrecognisable claim defined exclusively in terms of western land tenure systems.

Another area of real concern to me is the existence and interpretation of the acceptance test. In my opinion, the prima facie standard of proof of a claim required of applicants under the NTA is a low-level test. It seems, however, that the standard is being applied in a way that is requiring something more of claimants than the presentation of an arguable case. Claims are being rejected on contentious grounds and the Tribunal seems to have formed the view, without unequivocal legal authority, that whole categories of land are not capable of being claimed. The Tribunal, for example, has a procedure whereby the Registrar will not ordinarily accept a claim to pastoral land that is wider than any reservation contained in a pastoral lease for the benefit of Indigenous people.

If there is to continue to be an acceptance test, then it must operate as a screening test and not as a preliminary trial of the issues in the claim. However, I believe that there is an urgent need to replace the acceptance test by strike out procedures in the Federal Court.

I briefly review the Tribunal's mediation function and some notable features of applications to the Tribunal during the reporting period. To put into perspective some of the specific criticisms I have made of some of the decisions emanating from the Tribunal, I commend the effort that has clearly been made by Tribunal personnel to ensure that it operates in a way that is responsive to the concerns of Indigenous people.

Although it is too early to fully evaluate the Tribunal structure or its functioning, a range of circumstances (such as the High Court decision noted above) has provided an impetus to restructure it. I have commented on a detailed proposal by Justice French, President of the Tribunal, which puts forward changes to the functions exercised by the Tribunal and calls for a wider role for the Tribunal in mediation. Justice French's proposal is broad-ranging and thoughtful and I find much in it to commend. However, I reserve my opinion on important aspects of it pending further consultations.

Chapter 5 - Economic and Resource Management Issues

In chapter 5, I review and evaluate some of the responses to the NTA by governments and industry groups. This review is not done for the purpose of comprehensively evaluating the impact of the Act, it is clearly too early to make such an assessment. Its purpose is to canvass the issues and to put some of the more common criticisms into perspective.

The most often-repeated complaints about the NTA from state and territory governments are that it does not resolve the uncertainty surrounding native title and that government procedures have had to be restructured as a consequence of its requirements.

Specifically, governments have complained that their dealings with land are hampered by the future act regime. In my view, the future act regime is not a barrier to future dealings on native title land. In many cases the procedural entitlements of native title holders will be no greater than the entitlements of other title holders. In addition, many types of acts may proceed in the absence of a determination about the existence of native title.

The right to negotiate appears to be a particular irritation to some state governments. For Indigenous people it is a minimum requirement which may enable them to have a say about dealings with their land. The right to negotiate may cause some delay in the granting of interests over native title land but that delay will be reduced as the procedures become more familiar to all participants. It also needs to be recognised that the rights to negotiate can proceed concurrently with lead times arising from some other requirements affecting land use. Any inconvenience caused to governments and applicants for interests in land by the right to negotiate must be balanced against the imperative that Indigenous people be able to freely exercise their rights to land. This imperative must be kept in mind in considering government proposals for exclusions from the right to negotiate.

Although I think that some of the complaints of governments are exaggerated, I do not disagree that the requirements of the NTA may cause some additional delays and impose some new costs on land dealings. However, I believe that whatever the cost and delay, the recognition of native title and the implementation of procedures to accommodate it was overdue. Old procedures that allowed native title to be affected by grants without consultation with Indigenous landholders are no longer acceptable.

Certain conduct by governments has contributed to the uncertainty surrounding native title. The refusal by some governments, particularly the Western Australian State Government, to accept the national approach to the recognition of native title has meant that some of the processes of the NTA have not been fully implemented or utilised.

The uncertainty for governments needs to be set against the uncertainty felt by Indigenous peoples. Although Indigenous peoples feel secure about our rights to country in the Indigenous system, until Mabo [No:2] we had no security to enjoy our property ownership in the non-Indigenous system. We suffered continued uncertainty, vulnerability and loss due to the capacity of governments arbitrarily to divest us of our rights. Now that the common law recognises our property rights we still have to prove our claims to ownership under the non-Indigenous system. If the dimensions of native title remain uncertain in the non-Indigenous system then that is a function of that system, it is not attributable to the existence of Indigenous land ownership.

One way that government, in co-operation with native title holders, can reduce uncertainty is by entering into agreements about land development and land management. Governments have not fully explored the possibilities of negotiation and agreement as a means of alleviating their concerns.

The recognition of native title and the enactment of the NTA provides an opportunity for governments to re-evaluate their land management practices with a view to fully including Indigenous peoples. The possibilities of co-operative management range from small-scale co-existence (for example on a pastoral lease) to more extensive projects like joint control of national parklands. There are numbers of examples to indicate that co-existence between native title and other land uses and interests is not only possible but produces beneficial outcomes for the whole community.

Like governments, certain sectors of Australian industry hold the view that the NTA has caused uncertainty about security of land tenure and future land use. In my opinion, the effect of the NTA is to lay down firm procedures for future acts and to validate or allow for the validation of ineffective past grants. Some of the apprehensions of industry can be put down to a misunderstanding of what the NTA actually does. However, certain specific concerns of industry groups are not attributable to ignorance and I have addressed these in detail.

The fishing industry has concerns about the extent of the common law recognition of native title rights to the sea and rights to take sea resources. The industry's concerns are not assisted by the fact that the law on this important issue is still being developed. However, after reviewing the relevant provisions of the NTA, I have come to the conclusion that whatever the extent of native title over sea resources, it is unlikely to interfere with past grants of interests to the fishing industry nor to seriously impact on the grant of new rights.

The mining industry has been particularly vocal in its opposition to the recognition of native title and the procedures introduced in the NTA. It is my opinion that much of the rhetoric from the mining industry is referable to its ideological opposition to a proper acknowledgement of Indigenous land ownership and their protests are not always genuinely directed to perceived defects in the Act. However, some mining companies have managed to adopt creative approaches to mining developments on Indigenous land and some agreements that have emerged provide indicators of how to reconcile industry objectives with Indigenous property rights.

The approach of some pastoral industry representatives to native title has been pragmatic. These representatives sought to protect farmers' interests by ensuring that an effective and comprehensive scheme for the validation of past grants was instituted. The NTA contains such a scheme and so, since the enactment of the NTA, the pastoral industry has been less vocal and less critical than some other industry groups. One issue that remains a concern to the pastoral industry is the making and acceptance of native title claims to pastoral leases. Pastoralists complain that, on their understanding of the law, these claims are without merit and cause respondents considerable inconvenience, expense and financial hardship. I do not agree that claims to pastoral leases are doomed. My analysis of the law is that native title will co-exist on pastoral leases to some extent. It is my opinion that although the claims may inconvenience farmers, such inconvenience cannot outweigh the rights of Indigenous peoples to attempt to prove their claims to their traditional country.

It is important to put the issues about native title on pastoral leases in the historical context of Indigenous people's participation in the pastoral industry. When the experience of Indigenous people in the industry is understood, it is easy to see why the traditional owners of land used for farming will not give up their claims. I believe that the rights of Indigenous peoples and the objectives of the pastoral industry can be reconciled given a genuine will to find mutually acceptable compromises. In attempting to resolve the issues about native title on pastoral leases and other issues about native title, we should strive for a process and an outcome that respects both Indigenous and non-Indigenous laws.

Chapter 6 - Community Awareness

The NTA is complicated legislation dealing with complicated legal and social issues. Present indications are that the level of knowledge among both Indigenous and non-Indigenous Australians as to the nature of the common law recognition of native title and the provisions of the Native Title Act is low.

This lack of understanding must be redressed. Both Indigenous and non-Indigenous people must have access to simple and accurate information as to the content of the NTA and the procedures that it establishes. This is particularly so for Indigenous peoples who must rely on the NTA for the assertion and protection of their native title rights. The Act will do little to assist Indigenous peoples if they are not aware of its existence or are not informed as to how they can receive the benefit of it.

While a number of materials have been produced on the operation of the NTA, not all have been designed to be accessible to Indigenous people. They have not been designed to specifically cater for people who have not had a secondary education or who have English as a second language. A significant number of native title claimants and potential claimants fall into this category. Education and community awareness programmes must be flexible enough to cater for the needs of specific communities and be culturally appropriate in order to be effective. Materials that have been produced have not been disseminated to a satisfactory degree among non-Indigenous people who are concerned about native title and the NTA. Given the level of misinformation that exists in the community over the recognition of native title and the NTA, this is most unfortunate.

Greater community awareness is needed, not only so that people gain greater understanding of the NTA, but also to ensure that the Act operates in an efficient and beneficial manner. This is essential given the heavy emphasis placed on mediation and negotiation by the Act and the procedures emerging under it. There is a need for cultural awareness so that dialogue can take place in an environment where there is a reasonable level of understanding and respect for the issues, participants and cultures. The non-Indigenous community must be assisted to understand the history of the dispossession of Aboriginal and Torres Strait Islander peoples and be encouraged to accept the ramifications of native title for Australia's land use systems. Without this, the procedures in the NTA are likely to be hampered by unnecessary tensions which have already been exacerbated by misinformation and hysteria on the part of some sections of the community. The effect of this misinformation has been further exacerbated by the lack of accurate and objective information or its limited distribution.

Those in professions associated with the implementation and operation of the NTA must also be adept in cross-cultural communication. This will be crucial in order to make many of the procedures in the NTA work effectively. Poor communication and lack of understanding will result in an outcome likely to be detrimental to all parties concerned.

Unless adequate educative processes are implemented to explain the NTA and to assist those who have to work with it or are affected by it, then the procedures it establishes will be undermined.

See also (1995) 3(76) Aboriginal Law Bulletin 17.