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Editors --- "Acting Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report 1998 - Digest" [2000] AUIndigLawRpr 12; (2000) 5(1) Australian Indigenous Law Reporter 127

Inquiries and Reports - Australia

Acting Aboriginal and Torres Strait Islander Social Justice Commissioner

Native Title Report 1998

Human Rights and Equal Opportunity Commission
Sydney
April 1999.

The Aboriginal and Torres Strait Islander Social Justice Commissioner is required under s 209 of the Native Title Act 1993 (Cth) to report annually to the Federal Attorney General on the operation of the Native Title Act 1993 (Cth) and its effect on the exercise and enjoyment of human rights by Aborigines and Torres Strait Islanders. The Native Title Report 1998 is the fifth report on native title by the Aboriginal and Torres Strait Islander Social Justice Commissioner. It was presented to the Attorney-General on 13 April 1999 by the Acting Social Justice Commissioner, Ms Zita Antonios. In May 1999, Ms Antonios ceased to act in this position when Dr William Jonas commenced his appointment as the Social Justice Commissioner. The Native Title Report 1998 was tabled in Federal Parliament on 12 May 1999.

The report focuses on the amendments to the Native Title Act 1993 (Cth) which were passed on 8 July 1998, the majority of which commenced on 30 September 1998. It evaluates the amendments against principles of equality and non-discrimination. Chapter Two of the report considers whether the amendments comply with Australia’s international human rights obligations, as well as considering emerging international standards (such as the Draft Declaration on the Rights of Indigenous People). Chapter Three contrasts the meaning of equality within a human rights framework with the notion of equality used by the Federal Government to justify certain amendments to the right to negotiate provisions of the Native Title Act. Chapter Four then examines a number of agreements that have been reached through the native title process to date, highlighting the very real outcomes that have been achieved through negotiation.[1]

Contents

Chapter 1: Striking the balance

Chapter 2: International human rights standards and native title

Chapter 3: The amendments to the right to negotiate provisions and the meaning of equality

Chapter 4: ‘Achieving real outcomes’: Agreements and native title

Appendix 1: National Indigenous Working Group Statement

Appendix 2: Extracts from Quandamooka process agreement

Appendix 3: Indigenous Land Use Agreement provisions

Chapter 1: Striking the balance

The spirit of the High Court’s Mabo decision will never be achieved simply by court actions or divisive political debate. The essential truth is the unbreakable connection of Aboriginal people to the land. It never will be possible to recognise that adequately in law. It can be achieved at the local level and only by reconciliation founded on agreement.

Noel Pearson
Executive Director of the Cape York Land Council


Our members want to improve the security of their enterprises. That involves resolution of native title and conservation issues and improved tenure. When these things occur, it will be far easier to attract necessary investment.

This agreement is a tremendously significantly step towards achieving our objectives. It will be good for us, good for the land, good for the region.

John Purcell
President of the Cattlemen’s Union of Australia[2]

Reconciliation between Indigenous and non-Indigenous Australians must be founded on justice if it is to be durable. Reconciliation essentially concerns our future co-existence. Fine words crafted to describe our aspirations will be sterile unless they are supported by an alignment of interests that will draw us together, rather than draw us into conflict and dispute.

The alignment of Indigenous and non-Indigenous rights to land will be a critical part of this balance of interests. It must rest on fairness and equality. This much is self-evident and common ground. What is much more contentious is the concept of equality employed to strike this balance.

The Wik decision laid down some straightforward propositions. Native title is not necessarily extinguished by the grant of a pastoral lease. Native title rights can co-exist with pastoral rights. Where there is an inconsistency or conflict between the exercise of these rights, the pastoral rights will take precedence.

It should not be overlooked that, from the very outset, the concept of native title is based on a principle which is unfair from an Indigenous perspective. It was held in Mabo (No 2)[3] that the Crown had a power to extinguish traditional Indigenous ownership of land. ‘Aboriginals were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement.’[4] Before the introduction of the Native Title Act 1993 (Cth) (NTA), the only explicit protection against such a discriminatory exercise of sovereign power was the Racial Discrimination Act 1975 (Cth) (RDA). Before 1975, when the RDA was introduced, there was simply no protection.

One of the primary provisions of the NTA enabled the validation of all non-Indigenous interests in land resulting from past acts by the Crown, such as the grant of a pastoral lease, which may have been invalid because of the existence of native title.

Given this validation of pastoral leases, the only live issue in Wik was whether or not the original native title to the land was completely extinguished, or whether native title could in some way survive the grant of a pastoral lease.

The potential co-existence of native title with pastoral interests was a modest recognition and realignment of interests, with limited potential for Indigenous interests to impede the use of the land for pastoral purposes.

Indigenous representatives, in their detailed response to Wik, Co-existence—Negotiation and Certainty,[5] offered to remove any impediment to the exercise of existing pastoral rights flowing from the NTA. They agreed to:

guarantee under the NTA that the rights of pastoralists under all forms of pastoral leases ... are confirmed in the same way as the rights of native titleholders ...[6]

It is in this perspective that we must consider the recent amendments to the NTA, which were largely shaped in response to Wik. The High Court of Australia had laid the foundation for the co-existence and reconciliation of shared interests in the land. In many ways the decision presented Australia with a microcosm of the wider process of reconciliation. The final response of the Australian Parliament reveals the great distance we still have to go to achieve, not only a just basis for reconciliation, but also an understanding of the principle of equality on which it must rest.

The recognition of native title by the High Court of Australia in Mabo (No 2) recast the landscape of our country. The judgment not only upheld the existence of common law rights to land predating and surviving the assertion of British sovereignty, the judgment also threw the history of Australia into a different perspective. While native title survived the Crown’s acquisition of sovereign power, as we have already observed, the Crown’s power was untrammelled and was exercised repeatedly to grant Indigenous land to others.

It did not require the recognition of native title to reveal the blunt facts of Indigenous dispossession. Recognition did, however, give a new edge to that history and established in law what Aboriginal and Torres Strait Islander peoples had always known, that:

their dispossession underwrote the development of the nation ... The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and a retreat from, those past injustices.[7]

This challenge to our national values was met with the passage of the NTA, the establishment of the Indigenous Land Fund and the promise, as yet unfulfilled, of a package of social justice measures.

With the introduction of the NTA, the Australian Parliament endeavoured to accommodate the realities of the past and provide a fair way to deal with land in the future, based on contemporary notions of justice. The validation of ‘past acts’ conferred the absolute security on all non-Indigenous titles. Provisions dealing with ‘future acts’ established a framework for the interplay of all land interests in future dealings. The belated recognition of native title necessarily created complexity in the structure of the NTA.

The original Act was by no means perfect. Criticisms of certain core, structural principles of the legislation were made in the Aboriginal and Torres Strait Islander Social Justice Commissioner’s First Report 1993.

In the original NTA, the validation of past acts required the unequivocal suspension of the RDA, effected by s 7(2) NTA. This was agreed to by Indigenous representatives in acknowledgment of the legitimate need to provide security for all non-Indigenous titles granted before the recognition of native title. Section 7(1) NTA purported to expressly maintain the protection of the RDA in all other circumstances. It was avowed that the NTA should conform with the principle of non-discrimination.

The procedural protection embodied in the right to negotiate over activities affecting native title land did not satisfy the Indigenous position that such activity should only proceed with the consent of the native titleholders. It was argued that consent was necessary to reflect the traditional right to control access to country. Nonetheless, the right to negotiate formed a core component of the protection of native title interests provided by the NTA. Together with the ‘freehold test’, it contributed in a major way to the balance between Indigenous and non-Indigenous interests which was agreed in negotiations between the Commonwealth Government and Indigenous representatives.

The right to negotiate was included in the original NTA in recognition of the ‘special attachment of Aboriginal and Torres Strait Islander people to their land’.[8] The Government considered this particular form of procedural protection to be a special measure under Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and s 8 of the RDA.[9]

The Indigenous position held that the right was a diminished statutory reflection of an inherent right of title and was, accordingly, required as a matter of principle. On either analysis the right to negotiate responded to the distinctive character of Aboriginal and Torres Strait Islander laws and customs. It offered some protection based on the recognition of the unique spiritual, social and cultural dimensions of the Indigenous relationship to land.[10]

The grant of a leasehold title was considered by the Commonwealth Government to extinguish native title, and this view is recorded in the preamble to the Act. This view was in contrast to the Indigenous position on the effect of a leasehold grant. No substantive provision of the NTA dealt directly with this matter. It was anticipated that the effect of the grant of various interests in land, and in particular those interests described as ‘pastoral leases’, would await judicial determination. The Wik proceedings were actually commenced before the passage of the NTA in 1993.

Seen from an Indigenous perspective, these and other aspects of the original NTA rendered it very much a less than perfect legislative response to the recognition of native title. However, overall it achieved a reasonable balance of interests.

After its enactment, several matters created a pressing need for amendment:

• The unexpected implications of the Brandy decision[11] for the role of the National Native Title Tribunal necessitated amendment of the Tribunal’s function.
• The Lane and Waanyi decisions[12] suggested a need to revisit those provisions setting the threshold for the registration of native title applications. Registration provided native title claimants with access to the right to negotiate. All stakeholders agreed that the threshold was too low.
• The absence of a sound statutory basis for the negotiation of broad reaching agreements generated an interest among all stakeholders in amendments to support such agreements.
• The decision in Western Australia v Commonwealth[13] revealed that the provisions of the NTA override and exclude the RDA from the NTA’s field of operation, despite the apparent protection offered by s 7(1).

In the course of 1996 ‘workability’ became the utilitarian catchcry coined by the Commonwealth Government to justify extensive amendments of the NTA, addressing these and other more contentious matters. It was not proposed to amend s 7 to provide the protection of the RDA to native title.

Then, in late 1996, the High Court delivered its judgment in Wik.

The reaction to the High Court of Australia sparked by the decision was intense. The focus swiftly shifted to the NTA and proposals for its amendment. Legislation designed to protect native title, and to facilitate its accommodation within the Australian legal system, was seen as a potential vehicle for ‘blanket extinguishment’ or, at least, ‘bucketloads’ of extinguishment. A great deal of confusion was created by the rhetoric which characterised the public debate.[14]

‘Certainty’ became the new catchcry for the legislative response to Wik. This apparently neutral word carried a great deal of value laden assumptions concerning the level of protection that native title should be accorded under amendments proposed in the Ten Point Plan.[15]

Underpinning these amendments was a major assumption concerning the concept of equality. The Commonwealth Government was, and remains, committed to the notion of formal equality.

Formal equality asserts that all people should be treated in precisely the same way: to recognise different rights is inherently unfair and discriminatory. Emphasis is placed on formal equivalence judged by a narrow, direct comparison of rights. Difference is necessarily discriminatory. Within this construction, any distinctive right accorded to native titleholders or native title applicants is seen as inherently racially discriminatory, unless it is justified as a ‘special measure’ under Article 1(4) of CERD and s 8 of the RDA. This view regards special measures as being discretionary privileges which the Australian parliament is at liberty to reduce or remove completely.

The application of the concept of formal equality is seen most clearly in the amendments to the right to negotiate relating to pastoral leasehold land. Under the Government’s analysis, the right to negotiate was a special measure. Its removal was a matter of pure discretion. In relation to pastoral leasehold land the right was removed so that native titleholders would have the same procedural rights as pastoralists.

Formal equality can be contrasted with substantive equality which has a broader frame of reference. Substantive equality recognises that different treatment is not only permitted, but may be required to achieve real fairness in outcome. Differential treatment may be necessary to respond adequately to the particular circumstances of a person or a group or to reflect the special character of their interests. For example, the particular needs and interests of war veterans are taken into account through special benefits tailored to their particular needs.[16] The recognition of difference applies to all Australians, not just Indigenous Australians. A rational, proportional accommodation of the distinctive rights of native titleholders and native title applicants is not racially discriminatory: in fact, different treatment may be required to avoid racial discrimination.

Indigenous spiritual beliefs are unique in form. Sacred sites and places of ceremony lie embedded within the landscape of Australia. Because of their nature they require special legislative protection. This is not preferential treatment. It is appropriate protection of the common human right to freedom of religious practice under Articles 18 and 27 of the International Covenant on Civil and Political Rights (ICCPR).

Similarly, the right to negotiate is required not as a ‘special privilege’ but as a means of achieving substantive equality in the protection of a distinctive and particularly vulnerable form of property. The direct comparison of the right to negotiate with the rights of pastoral leaseholders compares incommensurable interests only brought together by an accident of history — the grant of a pastoral lease — which has already adversely affected the underlying native title. Even if formal equality were a proper standard to apply, the selection of a pastoral lease as a comparable title or benchmark of native title rights would be inappropriate.

This report primarily examines the concept of formal equality which provides the foundation for the amendments to the NTA by the Australian Parliament.[17] It is contrasted with a broader human rights framework and international standards relating to equality and the principle of non-discrimination. Particular attention is given to the reduction and removal of the right to negotiate and to the national standards set where it is permitted to replace that right with state and territory procedures of objection and consultation. The ‘validation’ and ‘confirmation’ provisions, registration test and other amendments are also considered within this human rights framework.

This report contends that a cascading series of amendments, effected through such devices as ‘validation’ and ‘confirmation’, subordinate the native title interests of Aboriginal and Torres Strait Islander people in a racially discriminatory manner. Through complex and subtle means the amendments either adversely affect or extinguish native title while permitting the expansion of non-Indigenous interests in land. For example, the amendments include provisions which purport to ‘confirm’ the application of the common law to extinguish native title. Various interests granted in the past, often the distant past, are classified as previous exclusive possession acts, with the effect that they are deemed to have permanently extinguished native title. Schedule 1 of the amended Native Title Act 1993 proclaims a list of interests deemed to extinguish native title. The list runs to 50 pages in length.

The list of scheduled interests goes far beyond its purported scope of merely confirming the application of the common law.[18] The schedule constitutes the present day extinguishment of native title. It constitutes a repetition of the historical pattern of dispossession. It is by no means a reconciliation or balancing of interests.

The cumulative effect of the various amendments is disturbing. There is, however, room for debate about the precise nature of the future impact of some of the amendments. For example, it is not known at this stage what the effect will be of state or territory based legislation, authorised by the Commonwealth amendments, which may replace the right to negotiate with a right of consultation and objection in certain circumstances. However, it is appropriate that this report considers the human rights implications of the minimum national standards that the Commonwealth legislation establishes.

The actual implementation of several amendments, such as the potential to acquire native title for the upgrading of pastoral leases, will be closely monitored. The degree to which other amendments are racially discriminatory in subordinating and removing the rights of Aboriginal and Torres Strait Islander peoples, may be open to some legitimate difference of opinion.

Of one thing there can be no dispute. The amended s 7, which deals with the inter-relationship of the Native Title Act 1993 and the Racial Discrimination Act 1975, ensures that native title legislation is unconstrained by the only national standard of non-discrimination available under Australian law.

The RDA was introduced to comply with Australia’s obligations as a signatory to CERD. It is our country’s primary legislative guarantee to all citizens that they will not be treated in an unequal, racially discriminatory, way: that our law will respect internationally established standards. The absence of such a guarantee for the native title interests of Aboriginal and Torres Strait Islander Australians has been consciously confirmed by the Australian Parliament.

In Western Australia v Commonwealth the High Court concluded that s 7, as it was originally enacted, was in fact ineffective to provide general RDA protection in the face of the specific, subsequent provisions of the NTA:

Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be intended to nullify those provisions ...[19]

Accordingly, the NTA covers the field in matters pertaining to native title while the RDA continues to operate on matters outside the scope of the NTA. The recent amendments to the NTA provided an opportunity to redraft s 7 in order to effectively apply the RDA to the provisions of the NTA.

Appropriately amended, this section could have made it unequivocal that the provisions of the NTA are subject to the provisions of the RDA. There was precedent for this level of protection. The Social Security Legislation Amendment (Newly Arrived Residents’ Waiting Periods and Other Measures) Act 1997 (Cth) contained an equivalent section defining the interaction of the RDA with social security legislation:

Section 4 — effect of the Racial Discrimination Act 1975

(1) Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provisions of the Social Security Act 1991, the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act.

(2) The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

A similar amendment was not adopted in the amended NTA. Section 7 was amended in the following terms:

7 Racial Discrimination Act
(1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2) Subs (1) means only that:

(a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

(3) Subss (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

As amended, s 7 does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA. The exercise of powers unambiguously authorised by the NTA is freed from the constraints of the RDA.

The central, pivotal international standard of non-discrimination has been abandoned by the Australian Parliament in setting the balance between Indigenous and non-Indigenous rights. A void was inadvertently created by s 7 as it was originally drafted. In the recent amendment of the section this void was unambiguously confirmed.

The criterion employed to strike the balance between Indigenous and non-Indigenous interests was home crafted: a notion of ‘formal equality’ which is out of kilter with the direction of international law and the concept of equality as recognised within the human rights framework. Disregarding the particular character of native title, its source in the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, its spiritual, social and cultural depth, a right to land for the purposes of pasturing sheep and cattle for a period of time, has become a benchmark of equivalence. In other circumstances other, equally arbitrary, benchmarks are used.

The rationale of direct comparison with the rights of the adjacent title, such as a pastoral lease, leads to unnecessary complexity. It creates different rights as between native titleholders depending on where their interests are located. The rights attached to their title change like a chameleon, depending on whether their title stands on a pastoral lease, within a town boundary or on vacant Crown land.

Such local rules for equality are an embarrassment to our national values viewed from an international perspective. Viewed from an Indigenous perspective, they are simply unfair and offer no incentive to make peace with the past. Viewed from a perspective which values the broader, long term interests of all Australians, they are highly regressive in their domestic impact on our potential for reconciliation.

The Mabo decision reflects the values of a modern nation moving forward to achieve a fresh relationship between its original inhabitants and all those who came after. It is a relationship based firmly on genuine principles of equality and non-discrimination. As Justice Brennan stated:

It is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination ... Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted ...[20]

The social division which can arise from the perception that Aboriginal and Torres Strait Islander people hold special rights superior to other Australians, no matter how misconceived this view may be, must be honestly acknowledged as damaging to our sense of community and common purpose. It should also be acknowledged that, in a time of great stress in the rural and remote areas of Australia, the management of the tensions generated by the Wik decision and genuine anxiety about its implications, created a very hard task for the Government. This was particularly so as the amendments were formulated against a backdrop which included the emergence of the One Nation Party.

The practical realities of governance and the importance of perceptions of fairness were certainly not overlooked by the Commonwealth Government. Respect for human rights cannot be considered in some ideal vacuum removed from the real world. As Mick Dodson, the former Aboriginal and Torres Strait Islander Social Justice Commissioner, predicted in his First Report 1993 regarding the original NTA, the final terms of the legislation:

will be determined in the heat of public debate and whatever settlement is arrived at, it will almost certainly represent a compromise between appeals to immutable standards of human rights and the immutable urgings of self-interest.[21]

To acknowledge that successful political resolutions inevitably represent a compromise is not to abandon regard for principle. It is to recognise that the political process must consist of negotiation to arrive at a point of settlement in which the interests and concerns of all parties are properly valued and taken into account. Where the end point entails significant concessions of fundamental rights, these can only be made by the party affected. The process of negotiation establishes the legitimacy of the end resolution which, in turn, provides a stable, durable basis for future relations. The amendments to the NTA do not rest on such a basis.

While the Commonwealth Government considers that the Ten Point Plan already represented a compromise position, proved by the fact that ‘no single interest got all they wanted’[22] it is clear that the Plan, the process of its translation into legislation and the final terms of the legislation, drew no Indigenous allegiance.

Indigenous representatives rejected both the substance of the Native Title Amendment Act 1998 and the process by which it was arrived at. The National Indigenous Working Group prepared a statement, which was read into the parliamentary record on the penultimate day of debate on the amendments. The statement reads, in part:

We, the members of the National Indigenous Working Group, reject entirely the Native Title Amendment Bill as currently presented before the Australian Parliament.

We confirm that we have not been consulted in relation to the contents of the Bill, particularly in regard to the agreement negotiated between the Prime Minister and Senator Harradine, and that we have not given consent to the Bill in any form which might be construed as sanction to its passage into Australian law.

We have endeavoured to contribute during the past two years to the public deliberations of native title entitlements in Australian law.

Our participation has not been given the legitimacy by the Australian Government that we expected, and we remain disadvantaged and aggrieved by the failure of the Australian Government to properly integrate our expert counsel into the law making procedures of government.

We are of the opinion that the Bill will amend the Native Title Act 1993 to the effect that the Native Title Act can no longer be regarded as a fair law or a law which is of benefit to the Aboriginal and Torres Strait Islander Peoples.

We remind the Australian Government and the Australian Peoples that the Native Title Act is not the mechanism which creates our ownership of land, waters and environment.

Our ownership derives from our ancient title which precedes colonisation of this continent and our ownership must continue, in Australian law, to be recognised in accordance with our indigenous affiliation with the land, waters and environment.

Our relationship with the land, waters and environment is a complex arrangement of spiritual, social, political and economic associations with the land which cannot be replicated, substituted, replaced or compensated.

We regard fair and equal treatment of our indigenous land rights, or native title, in comparison to the land title of other Australians, to be determined by the level of respect and regard for all titles and not by the assimilation of titles.

It is therefore a fundamental flaw of the Australian Government to consider that fairness or equality in the Native Title Act has been achieved by limiting the rights of Aboriginal and Torres Islander Peoples, for example to the rights of pastoral lessees ...

The National Indigenous Working Group is extremely disappointed that the Australian Government has failed to confront issues of discrimination in the native title laws and implicitly provoked the Aboriginal and Torres Strait Islander Peoples to pursue concerns through costly and time consuming litigation, rather than through negotiation ...

We are determined that the future generations of Australian society are raised and educated in a spirit of tolerance and understanding which will ensure that the measures of justice important to the reconciliation between our peoples can be appreciated and embraced ...

The National Indigenous Working Group on Native Title absolutely opposes the Native Title Amendment Bill, calls upon all parliamentarians to cast their vote against this legislation, and invites the Australian Government to open up immediate negotiations with the Aboriginal and Torres Strait Islander Peoples for coexistence between the Indigenous peoples and all Australians.[23]

The substance of the assertions in this statement are considered in the body of this report. The immediate purpose of considering the statement here is to demonstrate that the aftermath of the amendment process has been a spoiling of our potential for any reconciliation based on a perceived alignment of interests.

The legislative response to the Wik decision which proffered a basis for the sharing of interests has been lost, at least for the present. Both the process and the substance of the amendments have been destructive of the most valuable resource we have in working towards reconciliation: trust.

It may be thought that the position of Aboriginal and Torres Strait Islander peoples is unreasonable, that their claims are inflated, that they ask too much. There is no doubt that a significant number of Australians believe that. That perception must be acknowledged and addressed constructively. Similarly, the deep sense of grievance felt by many Indigenous Australians must also be acknowledged as sincere.

The recognition of native title, together with the ventilation of issues such as the separation of Aboriginal and Torres Strait Islander children from their families and the constant, seemingly intractable, backdrop of Indigenous disadvantage on every social indicator, give some non-Indigenous Australians a feeling that the problems are growing, not diminishing, that they are overwhelming and defy solution. This is said, not to justify the appeasement of prejudice, but to make the point that, as matter of reality, reconciliation will never be imposed, it must be sought. It will require a genuine movement, based on a realisation of our shared interests, by a critical mass of the entire Australian community.

There is tangible proof of this potential for a convergence of interests, worked out in a practical way by ordinary people dealing directly with each other, setting a new basis for their relationship.

The final chapter of this report considers the growing number of agreements which have been negotiated between Indigenous and non-Indigenous people and communities. Not all were specific settlements of native title rights, but in most instances native title was a catalyst. These agreements are the realisation of constructive outcomes through negotiation. When they are considered certain factors become immediately apparent.

The first is that, contrary to the continual claims that the native title process does not work, the past five years have seen the emergence of a large number of highly productive agreements. They represent a positive approach based on mutual respect, co-existence, the recognition and protection of native title.

The second is that the scope and potential of such arrangements could be enhanced and strengthened with the support of a more sophisticated statutory framework. The amendments to the NTA relating to Indigenous Land Use Agreements (ILUAs) provide such a framework.

The ILUA provisions are a positive feature of the amendments. They offer an effective foundation to move beyond reconciliation as an abstract concept: to set about the real task of working out a fair and durable balance between the interests of Indigenous and non-Indigenous Australians. The very process of striking this balance will bring about a new engagement. The difficulties of arriving at agreement should not be underestimated, but the Quandamooka Native Title Process Agreement with Redland Shire Council illustrates the starting point. Goodwill and commonsense may see it through:

8.2 The parties agree that:

(a) Negotiations shall be conducted in good faith;
(b) It shall be necessary for the parties to consult with their respective principals prior to the finalisation of any agreements;
(c) The parties may, by agreement, request the assistance of the National Native Title Tribunal to resolve any negotiation impasse by way of mediation;
(d) The custodial obligations and the aspirations for self-determination of the Quandamooka people shall be respected;
(e) The cultural decision making processes of the Quandamooka people shall be respected;
(f) The rights and responsibilities of the Redland Shire Council shall be respected;
(g) The negotiations shall foster reconciliation between Aboriginal and non-Aboriginal people; and
(h) The Agreement on Native Title (Paragraph 6.2(e)) shall require adequate resourcing.[24]

There is a way forward. There is also a natural bedrock to the Indigenous position:

We can embrace pastoralists and their cattle in our land. We have no problem with that.
We can negotiate our native title rights. That is no problem either.
We can negotiate access, and movement around their leases — gates, roads, rubbish — all of those things.
What we cannot do is allow our identity, and the birthright of our identity, to be rubbed out.
No human beings on earth can allow that.
None.[25]

[1] Only the contents and chapter one of the report are reproduced here. The full text is available from the Human Rights and Equal Opportunity Commission, or at <www.hreoc.gov.au>.

[2] Spoken on the signing of the historic Cape York Heads of Agreement regarding future land use on Cape York at Cairns, 5 February 1996. The seeds of the agreement were sown in August 1994 when, against the background of the Wik litigation, the Peninsular Branch of the Cattlemen’s Union decided that issues and conflict with Aboriginal people should be resolved by negotiations wherever possible. Subsequent to the High Court’s decision in Wik v Queensland (1996) 187 CLR 1, all parties determined they would stand by the agreement.

[3] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)).

[4] Mabo (No 2) per Brennan J, p 69.

[5] National Indigenous Working Group on Native Title, Co-existence — Negotiation and Certainty, Canberra, April 1997.

[6] Ibid, pp 9-10. See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996-97 Human Rights and Equal Opportunity Commission (HREOC), Sydney, 1997, pp 11-12.

[7] Mabo (No 2) per Deane and Gaudron JJ, p 109.

[8] Commonwealth of Australia, Mabo — The High Court Decision on Native Title discussion paper, Commonwealth Government Printers, Canberra, 1993, p 102.

[9] The RDA implements CERD in domestic law: Preamble, Racial Discrimination Act 1975 (Cth).

[10] Chapter 3 of the report argues that the right to negotiate cannot be characterised as a special measure.

[11] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

[12] Northern Territory v Lane (1995) 138 ALR 544; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 (Waanyi).

[13] [1995] HCA 47; (1995) 183 CLR 373.

[14] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996-97 op cit, considered the rhetoric in detail. See Chapters 1 and 6 in particular.

[15] Senator the Hon N Minchin, Federal Government’s Response to the Wik decision: The Ten Point Plan Commonwealth of Australia, Canberra, 1997.

[16] A further example of differential treatment is programs relating to the particular needs of rural and remote Australians. For example, Prime Minister and Minister for Primary Industries and Energy, Agriculture — Advancing Australia, Rural Communities Program Commonwealth of Australia, September 1997.

[17] The Native Title Amendment Act 1998 (Cth) was passed on 8 July 1998 and amends the Native Title Act 1993 (Cth). Most of the amendments came into force from 30 September 1998.

[18] This is discussed further in chapter two in relation to Justice Lee’s decision in Ward (on behalf of the Miriuwung and Gajerrong People) v Western Australia [1998] FCA 1478; (1998) 159 ALR 483. This decision is currently on appeal to the full Federal Court.

[19] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, per Mason CJ, Brennan, Deane, Toohey, Gaudron, McHugh JJ, p 484.

[20] Mabo (No 2) per Brennan J, pp 41-42.

[21] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1993-1994 HREOC, Sydney 1994, p 16.

[22] Senator the Hon N Minchin, Fairness and Balance — The Howard Government’s Response to the High Court’s Wik Decision: An Overview of Native Title and the Commonwealth Government’s Native Title Amendment Bill 1997, January 1998, para 2.

[23] Hansard, Senate, 7 July 1998, pp 4352-54. The NIWG statement is reproduced in full in Appendix 1 of this report.

[24] The Quandamooka agreement is extracted at Appendix 2. The agreement is available in full on the National Native Title Tribunal’s Agreements database on the internet, <www.nntt.gov.au/nntt/agrment.nsf/area/homepage>.

[25] Neowarra P, ‘Ngarinyin response to the Wik decision’ [1997] IndigLawB 33; (1997) 4(1) Indigenous Law Bulletin 16.