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Inquiries and Reports - Australia
Human Rights and Equal Opportunity Commission
Sydney
January 2000
The Human Rights and Equal Opportunity Commission’s Native Title Report 1999 considers the implications of the March 1999 decision of the Committee on the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which found that the Federal Government’s Native Title Amendment Act 1998 (Cth) is in breach of Australia’s obligations under the Convention. The Committee considered the amendments according to the two fundamental requirements of the Convention:
(1) to treat all people equally and in a non-discriminatory manner, and
(2) to ensure the ‘effective participation’ of Indigenous people in decisions which affect them.
The Committee found that the amended Native Title Act is discriminatory and was enacted without the informed consent of Indigenous people. The Report looks at these two fundamental principles in relation to the following areas:
(a) the adequacy of the minimum standards which are applied to state governments in their management of native title regimes;
(b) the impact of the registration test on native title claims;
(c) the impact of the amendments to the Native Title Act in relation to Native Title Representative Bodies on the capacity of Indigenous people to participate in and determine the outcomes of the decisions which affect them.
The report concludes that the guiding principle of equality and effective participation have been eroded by the amended Native Title Act and diluted by an ever expanding labyrinth of state legislation. The report urges an end to the divisive approach to Indigenous issues and calls for an acknowledgment that Indigenous people have a right to enjoy their cultural identity. Chapter one and extracts from chapter four are reproduced here.[1]
The period on which I report, 1 July 1998 to 30 June 1999, has coincided with the gathering momentum throughout Australia of the process of reconciliation between Indigenous and non-Indigenous people. The statutory requirement under the Native Title Act 1993 (Cth) (NTA) that I monitor and report upon the impact of that Act on the human rights of Indigenous people provides me with an opportunity to understand the significance of the recognition of Indigenous rights in the reconciliation process.[2] The native title story has told us that reconciliation is not about Indigenous people proving that they can be reconciled to a non-Indigenous way of life. Rather it is about recognising Indigenous culture and giving it the same value and respect as that which is given to non-Indigenous culture.
The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal society when sovereignty was acquired by the British in 1788 and that this law was a subtle and elaborate system which provided a stable order of society over a very long period of time. In deciding whether to recognise Indigenous law it was no longer necessary to decide whether the Indigenous relationship to land was capable of being ‘reconciled’ to property concepts known to the common law. In fact to do so was discriminatory.
The theory that the indigenous inhabitants of a ‘settled’ colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher ‘in the scale of social organization’ than the Australian Aborigines whose claims were ‘utterly disregarded’ by existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.[3]
The course which the court chose to take in that case is well known and represented a major advance in the struggle for the recognition of Indigenous rights and in the process of reconciliation. Native title, whilst recognised by the common law, has its origins in and is given its content by the traditional laws and customs acknowledged and observed by the Indigenous inhabitants of a territory.
There was, however, another side to the Mabo decision. Although it recognised Indigenous law, it also recognised and confirmed the power of the State to appropriate Indigenous land. Native title has brought an end to terra nullius, and with this a kind of peace. But it has also signalled a new battle. The struggle now is not so much against the non-recognition of Indigenous culture but rather a struggle over the meaning and value that non-Indigenous law and society should give it. It is my role, as Social Justice Commissioner, to ensure that the principles of equality guide the outcome of this struggle.
It is fair to say that, in the reporting period, the full dimensions of native title have not been settled either by the legislature, by the common law or by Australian citizens engaged in the process of reconciliation.
The recent amendments to the NTA[4] represent a legislative ‘resolution’ to the meaning of native title in which non-Indigenous interests largely prevail over Indigenous ones. Gains made from the Mabo decision, the original NTA and the Wik decision[5] have been significantly eroded as a result of the amendments. The validation of otherwise invalid non-Indigenous interests, the extinguishment of native title with respect to classes and schedules of non-Indigenous interests, the upgrade of pastoral leases without negotiation in respect of conflicting native title interests, as well as the winding back of the right to negotiate in respect of mining and certain compulsory acquisitions mark a trail of dispossession through the NTA.
This legislative resolution of native title, however, is still taking shape in every state in Australia. As a result of the devolution of federal control over native title, in order to determine what particular native title regime applies to an identified parcel of land in respect of a specified act, decision, grant or enactment, one must venture into a myriad of state legislation. In Queensland alone there are around 53 separate regimes which may apply, depending on the contingencies of the situation. Each state, other than Tasmania, has devised or is considering devising separate regimes in respect of validation, confirmation, the right to negotiate, compulsory acquisition and/or dispute resolution. Within the right to negotiate regime there are separate processes in respect of exploration; tin and alluvial gold mining; opal and gem mining; and all mining and certain compulsory acquisitions on pastoral leasehold land, within towns or cities, or on reserves. States are authorised to establish their own bodies to oversee some or all of the functions previously undertaken by the National Native Title Tribunal. Terra nullius is being replaced by a plethora of state and Commonwealth legislation which gives native title holders different rights and native title different meanings. Chapter 3 of this report discusses the impact of the state regimes proposed or implemented on the rights of native title holders.
My concern in relation to this huge mix of legislative regimes governing native title processes is whether the meaning given to native title in these regimes is discriminatory of Indigenous people. A decision on 18 March 1999 by the Committee overseeing the Convention on the Elimination of All Forms of Racial Discrimination (the CERD Committee) in relation to the amendments to the NTA provides some useful signposts in determining this question.[6] This decision is fully considered in chapter 2 of this report. The CERD Committee’s concern that the validation provisions, the confirmation provisions, the pastoral lease upgrade provisions and the changes to the right to negotiate provisions in the amended NTA are discriminatory, was based on a line of inquiry which asks: who gains and who loses as a result of these amendments? Where non-Indigenous interests are preferred over Indigenous interests the particular amendment is discriminatory. After this inquiry a further question remains to be answered. Does the legislation, taken as a whole, discriminate against Indigenous interests or is there a balance between the gains and the losses such that the legislation can be said to be non-discriminatory? The CERD Committee’s answer in relation to the amended NTA was that, taken as a whole, it did discriminate against Indigenous interests.
A difficulty that arises when trying to apply this latter test to the proliferation of state legislation which now governs native title throughout Australia is that there is no sense of a whole from which the meaning of native title can be seen to emerge. Instead, there is a procession of different land management regimes which treat native title in different ways depending on the land use patterns of the particular state. As native title becomes enmeshed in state land and resource management issues, questions of discrimination and human rights appear to fade into the background. An aim of chapter 3 of this report is to ensure that the human rights of Indigenous people are brought to the forefront in the development of the many native title regimes being devised presently at the state level. One way of doing this is to ensure that the provisions in the NTA which establish the authority of the state to legislate in respect of native title, incorporate the principles of equality and non-discrimination.
These principles are already enshrined in the Racial Discrimination Act 1975 (Cth) (RDA). As a general rule, the RDA makes discriminatory state legislation invalid. This is because under s 109 of the Australian Constitution, federal legislation such as the RDA overrides state legislation to the extent of any inconsistency.
Where, however, the Commonwealth itself passes legislation that is inconsistent with the RDA, then, as a result of the principle of parliamentary sovereignty, the RDA is overridden to the extent of the inconsistency. Moreover, states, acting under the authority of federal legislation, can pass legislation which is inconsistent with the RDA.
The NTA is an example of federal legislation enacted subsequent to the RDA. Thus, it will override the RDA to the extent of any inconsistency. It was contended in the previous Native Title Report, a contention supported by the CERD Committee’s findings in March this year, that there were significant aspects of the amendments to the NTA which were discriminatory and thus inconsistent with the RDA. In addition, under the NTA, states are authorised to pass discriminatory legislation in relation to the validation of invalid acts, the extinguishment of native title in relation to specific grants of non-Indigenous tenures and a series of modifications to or exclusions from the right to negotiate. The minimum standards set by the NTA in respect of state legislation fall below the standards of equality and non-discrimination upheld in the RDA and its progenitor, the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
The CERD decision made it clear that Australia has breached its international obligations under CERD by enacting discriminatory amendments to the native title legislation. The enactment by the states of discriminatory legislation authorised by the NTA is a separate and further breach of Australia’s international obligations.[7]
The CERD Committee again considered the amendments to the NTA in August 1999. They found that, since it last considered the NTA amendments and found them discriminatory, the most significant activity in relation to native title legislation in Australia was the implementation by a majority of states of discriminatory legislation. The implications of the negative finding by the Committee in relation to Australia’s native title laws are discussed in this report at chapter 2. The conclusion of this chapter is that, as a result of the ongoing maintenance of international scrutiny over the native title amendments, the attempt to ‘resolve’ the meaning of native title through legislation cannot succeed without incorporating the principles of equality and non-discrimination.
The meaning and value that the non-Indigenous legal system gives to native title is not only determined by legislation. The common law is still the central plank on which the statutory definition of native title rests.[8] So long as the common law continues to recognise the traditions and customs of Indigenous people and give them a meaningful place within Australian society today, native title exists as a declaration of justice. Where, however, the common law applies tests and rules which reduce native title to an historic right that cannot be exercised or enforced within contemporary Australia then native title exists as a declaration of injustice.
The common law approach to native title applications is to delineate two issues for its determination. First, the applicants must prove that they continue to acknowledge the laws and customs based on the traditions of the clan group. The connection test is based on the following passage from Justice Brennan’s judgment in the Mabo decision:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an Indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an Indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.[9]
The second issue for determination by the court, if the claimant’s connection to the traditions and customs of their forebears is established, is whether the grant of tenures over the history of the claimed land since sovereignty has resulted in the extinguishment of native title.
The bifurcation of native title into two distinct tests of connection and extinguishment disregards the underlying continuity in the process which, on the one hand, disconnected Indigenous people from their land and culture and, on the other hand, appropriated Indigenous land in order to benefit and grant tenures to non-Indigenous settlers. Both processes have their origin in the overwhelming ambition of the colonial project to appropriate and utilise land in the new territory. It is this project which resulted in the dispossession of Indigenous people from their land and culture.
In one sense, dispossession was the outcome of an irreconcilable conflict between colonists, whose whole purpose was to convert the land to agricultural production, and Aborigines, whose sustenance — indeed whose entire sense of identity — was inextricably bound to specific tracts of land. For many involved in the process, even those who wanted some kind of peaceful accommodation, reconciliation must have seemed unattainable. The attachment of Aborigines to their country was profound. Reducing their territory to reserves was extremely difficult given the Aborigines’ use of land and the colonists’ insatiable demand for the most cherished resources (especially water). Displacing the Aborigines both severed the Aborigines’ connection to the framework of their identity and generated grave conflicts with neighbouring groups. Although some settlers managed to coexist with Aborigines on the same land, that path too was fraught with difficulty ...
The root conflict underlying dispossession, then, was one of colonists hungry for land versus an indigenous population that possessed a profound and incompatible attachment to the same land.[10]
The common law presents the colonial project euphemistically as a ‘tide of history’ which has ‘washed away any real acknowledgment of traditional law and any real observance of traditional customs’.[11] It thus misrepresents the process of colonialism as one of abandonment and non-observance by Indigenous people. Yet it is obvious from the histories which unfold through the evidence before the courts dealing with native title that the colonial project was not a gentle ‘tide of history’ but an eroding and buffeting one characterised by violence and discrimination towards the original inhabitants of the land, and it was this process which undermined the foundations of Indigenous culture. The history of Indigenous dispossession which unfolds in the Yorta Yorta case and is summarised in the decision of Justice Olney illustrates this history of conflict:[12]
By 1850s physical resistance to settlement had ceased. The Aboriginal population of the area had been drastically reduced in number by disease and conflict. The white population had grown dramatically, and was to grow even more rapidly following the discovery of gold. An 1857 census found only 1769 Aborigines left in Victoria. In 1858 a Select Committee was appointed to ‘inquire into the present condition of the Aborigines of the colony, and the best means of alleviating their absolute wants’. Missions and reserves were established in several places to pursue such a course but in the claim area, only ration depots were developed notably at Echuca, Gunbower, Durham Ox, Wyuna, Toolamba, Cobram, Ulupna, and Murchison. Local squatters were appointed as ‘guardians’.[13]
Of dislocation:
A further component of official policy involved the relocation of children where possible to stations where they could be properly ‘educated’ away from parents and other traditional distractions. In the late 1860s some people, mainly children and young single women, were sent to Coranderrk near Healsville, well outside of the claim area.[14]
Of discrimination:
In 1884 proposals for dispersing ‘half castes’ from the missions and stations were circulated in Victoria and an Act to the same effect came into force in 1886. The Act had profound implications for many Aboriginal people living in Victoria. Extended families were split up, or forced to move away from places which had been their home for many years.
Of religious intolerance:
Problems began to emerge at Maloga in early 1880. Many people resented moves by Matthews in the 1870s to limit traditional ceremonial activity and the sanctions imposed, such as loss of rations, if people failed to attend Christian services. Disputes arose over many aspects of life. Residents were expelled for ‘immorality’, for failing to attend services, and even for going to cricket matches or foot races.[15]
And of economic deprivation:
Much of the reserve land had been leased to white farmers after 1921. The irrigation system failed around 1927 and was not repaired, making it impossible to grow sufficient vegetables or even fodder for dairy cattle. Cash wages were abandoned for work on the mission in 1929 and most equipment was removed to other reserves. Employment generally became harder to find as the white work force was swelled with returned soldiers and increased settlement, and the need for labour shrunk with increasing mechanisation. In the 1930s, funding for the reserve was cut back and work became harder to find. The problem was compounded by official policies in New South Wales which provided able bodied men and their families with no options. Aboriginal people living on reserves were not eligible for State unemployment relief. Nor were able-bodied Aboriginal people eligible for rations.[16]
Ironically, while the Yorta Yorta decision exposes the dispossession which marked the relationship between Indigenous and non-Indigenous people in the history of settlement around the Murray-Goulburn Valley, it does so in order to establish a basis for the final dispossession of surviving Indigenous culture; the denial by the common law of its recognition as a native title right. The Yorta Yorta decision thus stands as a poignant reminder of the injustice contained within the common law’s recognition of native title. That is, where the dispossession of Indigenous people has been most thorough and systematic and the injustices of colonialism most brutal and unforgiving, the less likely that the traditions and customs practiced today by the descendants of these Indigenous people will be recognised and protected by the law as native title rights.
Even though Justice Olney made it quite clear in the Yorta Yorta decision that he was not concerned with addressing the fundamental injustice within the common law, his treatment of the evidence before him and his limited construction of native title as a bundle of rights is not merely the application of common law principles as they exist. The Yorta Yorta decision has been taken on appeal to the Full Federal Court, as have other native title decisions of the Federal Court. The common law of native title is an emerging area of law and its final direction on these issues is by no means clear. There are two aspects of the Yorta Yorta decision which fall below the standard of equality acceptable within a human rights framework.
First, the Court’s treatment of the oral evidence provided by the applicants and their witnesses fails to apportion sufficient weight to the cultural traditions on which such evidence is based.
The most credible source of information concerning the traditional laws and customs of the area ... is to be found in Curr’s writings. He at least observed an Aboriginal society that had not yet disintegrated and he obviously established a degree of rapport with the Aboriginals with whom he came into contact. His record of his own observations should be accorded considerable weight. The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr.[17]
The apportioning of greater weight to the written observations of an early squatter over the oral history of the applicants in relation to Indigenous traditions and customs is not just an evidentiary issue or a conclusion based on the credibility of particular witnesses. It involves a judgment against the oral tradition of Indigenous culture itself, instead preferring the Western written tradition of which the legal system is a part.
The issue of cultural bias within the court processes is addressed in the NTA and in the case law. Section 82 of the NTA makes it clear that the court should take into account the ‘cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders but not so as to prejudice unduly any other party to the proceedings’.[18] In the decision of Ward v Western Australia[19] Justice Lee relied on Canadian precedent[20] to ensure that the oral histories of the Aboriginal applicants was not prejudicially treated.
Of particular importance in that regard is the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts, often localised in nature. In such circumstances the application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice.[21]
Substantial injustice will also be caused if the oral history provided by Indigenous witnesses is considered inherently inferior to the written history originating from the non-Indigenous inhabitants of the claim area. Where the distinct cultural identity of Indigenous people is not recognised and taken into account, the principle of equality, as it is understood at international law, is contravened.
As discussed in chapter 2, a ‘substantive equality’ approach acknowledges that racially specific aspects of discrimination such as cultural difference, socio-economic disadvantage and historical subordination must be taken into account in order to redress inequality in fact. It can be contrasted with an approach (the formal equality approach) that requires that everyone be treated in an identical manner regardless of such differences.
A notion of equality which recognises and protects cultural difference is consistent with the protection which is given to minorities under Article 27 of the International Covenant on Civil and Political Rights, a Convention to which Australia is a signatory. Article 27 provides that:
Members of ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Article 27 recognises that unless States Parties such as Australia implement positive measures to protect the culture of Indigenous people then it simply will not survive. Merely treating Indigenous people the same as non-Indigenous people is not enough. The principle of equality requires that the oral history provided by Indigenous claimants is recognised as an eminent source in informing the court of the traditions and customs of Indigenous culture as it existed throughout that culture’s history, and as it survives today.
The second aspect of the Yorta Yorta case that diminishes the value of contemporary Indigenous culture is its treatment of native title as a bundle of rights protecting traditional practices as they occurred prior to sovereignty. The written records of Curr were relied on to determine the traditions governing exclusive rights to land and resources:
I recollect, on one occasion, a certain portion of country being pointed out to me as belonging exclusively to a boy who formed one of the party with which I was out hunting at the time. As the announcement was made to me with some little pride and ceremony by the boy’s elder brother, a man of five-and-twenty, I not only complimented the proprietor on his estate, on which my sheep were daily feeding, but, as I was always prone to fall in with the views of my sable neighbours when possible, I offered him on the spot, with the most serious face, a stick of tobacco for the fee-simple of his patrimonial property, which, after a short consultation with his elders, was accepted and paid.[22]
Of the social organisation of the Bangerang, Curr wrote:
Amongst the Bangerang there was not, as far as could be observed, anything resembling government; nor was any authority, outside of the family circle, existent. Within the family the father was absolute. The female left the paternal family when she became a wife and the male when he took rank as a young man. The adult male of the Bangerang recognised no authority in anyone, under any circumstances, though he was thoroughly submissive to custom. Offences against custom had sometimes a foreign aspect, and brought about wars with other tribes. Within the tribes they usually amounted to wrongs of some individuals, and for every substantial wrong custom appointed a penalty ... [23]
Of the traditions and customs relating to the traditional use of food resources, Curr wrote:
It is a noteworthy fact connected with the Bangerang .... that as they neither sowed nor reaped, so they never abstained from eating the whole of any food they had got with a view to the wants of the morrow. If anything was left for Tuesday, it was merely that they had been unable to consume it on Monday. In this they were like the beasts of the forest. To-day they would feast — aye gorge — no matter about the morrow. So, also, they never spared a young animal with a view to its growing bigger ... [24]
I have often seen them, at an instance, land large quantities of fish with their nets and leave all small ones to die within a yard of the water ....[25]
Of traditional burial practices, Curr wrote:
The Bangarang mode of burial had nothing remarkable about it. The dead were rolled up on their opossum-rugs, the knees being drawn up to the neck with strings, when the corpse was interred in a sitting posture, or on its side, generally in a sand-hill, in which a grave about four feet deep had been excavated. A sheet of bark was then placed over the corpse, the sand filled in, and a pile of logs about seven feet long and two feet high was raised over all. Round about the tomb it was usual to make a path, and not unfrequently a spear, surmounted by plume of emu feathers, stuck at the head of the mound, marked the spot where rested the remains of the departed. Women were interred with less ceremony.[26]
Having established from Curr’s writings some of the laws and customs of the original inhabitants, the Court then asks whether these same laws and customs continue to be observed as contemporary beliefs and practices of the claimants.
The Court rejects the claim that the contemporary practice of protecting sites of significance, such as mounds, middens and scarred trees, should be recognised as a native title right. Its reasoning was that these sites were of no significance to the original inhabitants ‘other than for their utilitarian value, nor [did] traditional law or custom require them to be preserved’.[27] On this analysis native title rights cannot extend to heritage protection.
In relation to the claim for recognition of a right to hunt, fish and gather bush tucker on the land and in the waters of the claim area, Justice Olney again found the contemporary practices did not sufficiently resemble those carried out by the original inhabitants:
Of these activities fishing appears to be by far the most popular but is currently engaged in as a recreational activity rather than as a means of sustaining life. It is said by a number of witnesses that consistent with traditional laws and customs it is their practice to take from the land and waters only such food as is necessary for immediate consumption. This practice, commendable as it is, is not one which, according to Curr’s observations, was adopted by the Aboriginal people with whom he came into contact and cannot be regarded as the continuation of a traditional custom.
In relation to the claim for recognition of the right to carry out burial ceremonies on the claim area, a similar logic was applied:
There can be no question about the importance of the returning of the remains to the appropriate country but the modern practices associated with their reburial are not part of the traditional laws and customs handed down from the original inhabitants.
The Court’s rejection of the Yorta Yorta people’s claim is premised on a very limited construction of native title. Native title is seen as a set of traditional practices which will only be protected by the law if they continue to be practiced as they were by the original inhabitants. This construction of native title, discussed in chapter 4 of this report as it applies to the registration test, fails to give appropriate value and respect to contemporary Indigenous culture.
It fails to recognise that the practices which were observed and recorded were part of a broader system of rights, the existence of which was probably not observed or recorded by early squatters like Curr. A broader construction of native title based on the rights themselves rather than the practices which emanate from them permits a degree of flexibility in determining whether contemporary Indigenous practices should be recognised and protected as native title rights.
Terra nullius was also a legal construct which discarded Aboriginal claims to land on the basis that they failed to exhibit an underlying system in their relationship to the land, and certainly not a ‘civilised’ system. An alternative approach to this construction of native title is provided by the Canadian Supreme Court decision in Delgamuukw. In that case the court distinguished Aboriginal title from practices and activities which take place on the land. Aboriginal title is more than a set of site specific rights to engage in particular activities on particular land. It is a right to the land itself.[28]
In view of the number of native title issues yet to be resolved by the common law, the question remains whether the common law’s capacity to recognise native title as a legal right enforceable and protected by the law will be outweighed by its capacity to reduce it to an entitlement to which few Indigenous people will ever have access.
The third area in which ‘a question remains’ is the meaning and value that Australian citizens will give to Indigenous culture. The reconciliation process provides a vehicle to consider how post-colonial Australian society should relate to Indigenous society. The way in which native title is being formulated by the common law and the legislature should not occur in isolation from this broader process.
The recognition in 1992 of native title as a legal right offered a solid foundation on which to develop a new relationship between Indigenous and non-Indigenous society. After two hundred years of denial, the traditions and customs of Indigenous society were finally given the status of legal rights within the non-Indigenous legal system. A relationship based on equal respect and equal rights promised to replace the colonial paradigm of welfare dependency and assimilation. The Wik decision further supported a fundamental shift away from a relationship of domination to one based on co-existence.
The promise of native title was that the basis of the legal right was to be found within Indigenous culture itself rather than imposed externally. The content of native title was only limited by the traditions and customs which continue to be observed by Indigenous people today. In this way native title promised to provide a basis for the protection of not only Indigenous property rights, but also Indigenous culture and society. Through native title, the recognition and protection of Indigenous heritage, Indigenous use of resources, Indigenous art and intellectual production could all be formulated around rights rather than a policy which depended on the benevolence of consecutive governments.
The promise that native title would provide a basis in rights for the continuing respect and recognition of customary law has not been realised. As indicated above, court decisions to date have not been consistent in their approach to native title and the value they place on Indigenous customs and traditions varies significantly from case to case. The resolution of these differences should be influenced by the principles and sentiments expressed in the draft Declaration for Reconciliation which provides:
Speaking with one voice, we the people of Australia, of many origins as we are, make a commitment to go on together recognising the gift of one another’s presence.
We value the unique status of Aboriginal and Torres Strait Islander peoples as the original owners and custodians of traditional lands and waters.
We respect and recognise continuing customary laws, beliefs and traditions.
And through the land and its first peoples, we may taste this spirituality and rejoice in its grandeur.
We acknowledge this land was colonised without the consent of the original inhabitants.
Our nation must have the courage to own the truth, to heal the wounds of the past so that we can move on together at peace with ourselves.
And so we take this step: as one part of the nation expresses its sorrow and profoundly regrets the injustices of the past, so the other part accepts the apology and forgives.
Our new journey then begins. We must learn our shared history, walk together and grow together to enrich our understanding.
We desire a future where all Australians enjoy equal rights and share opportunities and responsibilities according to their aspirations.
And so, we pledge ourselves to stop injustice, address disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples to determine their own destinies.
Therefore, we stand proud as a united Australia that respects this land of ours, values the Aboriginal and Torres Strait Islander heritage, and provides justice and equity for all.
The development of principles within the common law should not occur outside the process of reconciliation and the code of ethics which are being developed to underlie the relationship between Indigenous and non-Indigenous people. On the basis of the principles set out in the draft Declaration for Reconciliation, and in particular paragraph 2, the Court should give equal respect and weight to the oral history of Aboriginal witnesses as that given to the written history of early settlers. The conflicting construction of native title by the common law, either as a bundle of practices or as a system of rights should be resolved consistently with paragraph 3 above, in favour of a broad recognition of ‘continuing customary laws beliefs and traditions’.
Finally, the deeper conflict within the common law of native title, where the pattern of dispossession characterising the history of relations between Indigenous and non-Indigenous people is reproduced, paradoxically, in the recognition of a right, this conflict must also be resolved in a way which, in the spirit of paragraph 6 of the draft declaration, ‘has the courage to own the truth, to heal the wounds of its past so that we can move on together at peace with ourselves’.
If the common law is unable to address the injustice which lies within the recognition of native title then other legislative measures need to be taken which can deal with the illegal and wrongful effects of past dispossession. The proposed social justice package and the land fund, established under the NTA, are examples of measures originally intended to overcome the destructive cultural, social and economic impact of dispossession on Aboriginal and Torres Strait Islander people. As a complement to native title the package provided the basis for achieving equality for Aboriginal people. Unfortunately, the social justice package never developed beyond a proposal. The land fund has been a useful measure in undoing past injustices.
The NTA cannot be classed as a legislative measure which addresses the injustice contained in the common law. As discussed above, and throughout this report, the NTA compounds the injustice within the common law. The amendments to the NTA discriminate against Indigenous people and are thus contrary to the principles of reconciliation.
I have argued that the legislative and judicial processes which determine the meaning of native title should be part of a broader process of reconciliation within society. In addition, these institutions which produce meaning are significantly influential in determining the outcome of the reconciliation process. They have a normative effect upon the way in which ordinary citizens view Indigenous culture. Where native title legislation prefers the interests of non-Indigenous people over those of Indigenous people, this choice influences a myriad of smaller choices that all people must make in the way they engage in their reconciliation with Indigenous people. Where the common law fails to recognise contemporary Indigenous practices as legal rights this too influences the significance which non-Indigenous people give to contemporary Indigenous culture.
The path towards reconciliation is still open. So, too, is the way in which the legislature and the judiciary resolve the meaning that they give to Indigenous culture. The principles of equality, non-discrimination and effective participation provide important signposts to navigate these paths towards a recognition of Indigenous culture which will change the relationship between Indigenous and non-Indigenous people forever.
...
The amendments to the Native Title Act (NTA) introduced a registration test to be applied retrospectively to most native title claims lodged since the inception of the NTA in 1994. Since the amendments commenced in October 1998 the Registrar or his delegates have considered many applications for registration. The impact of these decisions is now being felt, and, in some cases, has had the effect of denying registration to bona fide claimants. Claimants who are refused registration cannot access the right to negotiate provisions and most other provisions of the future acts regime. Consequently, where claimed native title rights fail to be registered, they are vulnerable to impairment or extinguishment in the period before a court determines the outcome of the native title application.[29] This chapter examines the impact of the registration test on the enjoyment of the human rights of Indigenous people.
The original NTA provided that in order to be registered, a claim had to meet an acceptance test. The relevant provisions of the NTA were interpreted by the High Court in such a way that there were few impediments to registration. Claims could be registered provided they could be made out on a prima facie basis and were not frivolous or vexatious.[30]
The amended NTA introduced a registration test that establishes a significantly higher threshold to that contained in the original Act. Under the amended NTA a claimant application must not be accepted, and accordingly must not be registered, by the Native Title Registrar unless it meets the requirements of ss 190B and 190C of the NTA. The test requires that the Registrar, or a delegated officer of the National Native Title Tribunal, be satisfied that the following conditions are met:
Once registered, native title claimants have access to specified rights under the NTA, including:
Failure to pass the registration test denies claimants access to the ‘protective’ provisions listed above and leaves native title vulnerable to impairment or extinguishment in the period before a court determines the native title claim.
The human rights of Indigenous people are affected if the registration test prevents bona fide claimants from protecting their title from the impact of mining and other developments. As discussed in chapter 2, the CERD Committee applied the standards of equality and effective participation in deciding whether the amendments to the NTA complied with the human rights standards contained in CERD. In relation to the standard of equality, the Committee asked whether, as a result of the amendments, non-Indigenous interests had been preferred to Indigenous interests. In relation to effective participation, the Committee looked at whether Indigenous people had participated in the decision-making process and whether they consented to the decisions which affected their rights.
The application of these principles to the rights which native title claimants gain through registration can be demonstrated in relation to the right to negotiate. In the previous Native Title Report the conflicting views concerning the right to negotiate, presented during the extensive public debate over the amendments to the NTA, were evaluated within a human rights framework.[42] Non-Indigenous stakeholders depicted the right to negotiate as a special statutory right, bearing no relationship to the common law recognition of native title. They argued that this right, which was not available to other titleholders, could be removed, modified or made more difficult to access without impinging on the rights of Indigenous people. It was claimed that such a removal, modification or impediment was not discriminatory of Indigenous people because it put them in the same position as non-Indigenous titleholders, such as pastoral leaseholders. In fact, the argument concluded, the provision itself was discriminatory and should be removed in order to achieve equality in the Act.
The notion of equality underlying this argument is that everyone should be treated the same, regardless of their cultural or social differences. Contesting this notion of equality is one which recognises that differential treatment is not, in itself, discriminatory. One must look to the impact of that treatment upon others and determine whether the objective of the treatment is contrary to the overall objectives of the human rights system. In the previous Native Title Report it was argued:
Given the significance of the right to negotiate and other rights gained through registration to the human rights of Indigenous people, it is important that all bona fide native title claimants have access to these rights. Consistent with this view, the Government has stated the purpose of the registration test in the amended NTA as follows:
The registration test is not intended to provide a screening mechanism for access to the Federal Court. Instead, the purpose of the registration test is to ensure that only claims which have merit are registered on the Register of Native Title Claims.[46]
Where bona fide claimants are denied access to the rights available on registration, leaving their native title rights vulnerable to impairment and extinguishment, the human rights of those Indigenous people are violated. Accordingly, the conditions of registration should not exceed those that, on a prima facie basis, satisfy a claim to native title at common law. Nor should they be contrary to the principles of equality and effective participation established by the CERD Committee as the cornerstones of Australia’s international obligations to Indigenous people.
Within the reporting period the registration test has applied to more than one hundred claims across Australia.[47] The operation of the registration test raises the following concerns:
i) Native title is constructed in a manner which is not in accordance with the traditions and customs of Indigenous people and which is beyond the common law requirements for the recognition of native title;
ii) The requirements for the identification of the native title claimant group are not in accordance with the traditions and customs of Indigenous people and are beyond the common law requirements for the recognition of native title holders;
iii) The procedural requirements of the registration test are onerous and beyond the common law requirements for the recognition of native title.
Sub-sections 190B(4), (5) and (6) of the NTA require claimants to identify each individual claimed native title right and interest and provide the factual basis of the claimed right. Where the Registrar or delegate is not satisfied that each right has been identified and proven on a prima facie basis it is not entered on the Register of Native Title Claims and consequently claimants cannot negotiate or object under the future act provisions of the Act in relation to that native title right.
These legislative provisions and their interpretation by the Registrar or his delegate, provide insight into the translation of Aboriginal culture into legal rights. They are the mechanisms through which native title rights are constructed out of the fabric of contemporary Indigenous life. What is striking about the native title rights which are constructed in the registration test is their lack of interrelatedness and their varying degrees of particularity. Native title rights are identified as a series of practices derived from a particular historical moment rather than a generalised system of rights, the exercise of which can take a variety of forms.
The following list of native title rights was presented for registration in the application of Gnaala Karla Booja,[48] for example:
1. The right and interests to exclusively possess, occupy, and enjoy the area.
2. The right to make decisions about the use and enjoyment of the area.
3. The right of access to the area.
4. The right to control the access of others to the area.
5. The right to use and enjoy resources of the area.
6. The right to control the use and enjoyment of others of resources of the area.
7. The right to maintain and protect places of importance under traditional laws, customs, and practices in the area.
8. The right to maintain, protect and prevent the misuse of cultural knowledge of the common law native title holders associated with the area.
9. The right to rear and teach children in their country.
10. The right to manage conserve and look after the land, waters, and resources, including locating and cleaning water sources and drinking water on the land.
11. The right to live on and erect residences and other infrastructure on the land.
12. The right to trade in resources in the land.
13. The right to receive a portion of any resources taken by others from the area.[49]
The claimed rights numbered 11 to 13 were rejected by the delegate on the basis that there was insufficient evidence to establish them on a prima facie basis. It is apparent, however, that these rejected rights could be characterised as incidents of the more generalised rights, such as the right to exclusively possess, occupy, use and enjoy the area, that were accepted by the Registrar. The registration test does not require the delegate to see native title rights as an interrelated system. Each identified practice is examined separately to determine whether the evidence supports it on a prima facie basis.
Justice McLachlin in dissent in R v Van der Peet examines the construction of Aboriginal rights in Canadian jurisprudence and distinguishes between an Aboriginal right and the exercise of that right by reference to the degree of particularity.
It is necessary to distinguish at the outset between an aboriginal right and the exercise of an aboriginal right. Rights are generally cast in broad, general terms. They remain constant over the centuries. The exercise of rights, on the other hand, may take many forms and vary from place to place and from time to time.
If a specific modern practice is treated as the right at issue, the analysis may be foreclosed before it begins. This is because the modern practice by which the more fundamental right is exercised may not find a counterpart in the aboriginal culture of two or three centuries ago. So if we ask whether there is an aboriginal right to a particular kind of trade in fish, ie large-scale commercial trade, the answer in most cases will be negative. On the other hand, if we ask whether there is an aboriginal right to use the fishery resource for the purpose of providing food, clothing or other needs, the answer may be quite different. Having defined the basic underlying right in general terms, the question then becomes whether the modern practice at issue may be characterized as an exercise of the right.[50]
The construction in the registration test of native title rights as unrelated specific practices rather than a system of generalised rights limits the protection which can be extended as a result of the enforcement of that right. This can be demonstrated by reference to the exercise of the right to negotiate which follows from the successful registration of a native title right. Negotiation around a specific activity, such as hunting and fishing, is far more limited than negotiation around a more generalised right such as the right to use the resources on the claimed land. The Aboriginal Legal Service of Western Australia has criticised the reduction of Indigenous rights through the registration test:
From a non-legal perspective when you look at native title it is to allow claimants to acquire rights that they believe are traditional rights. When you apply the registration test you must clearly describe all of those rights. You only receive native title in line with those rights claimed. Many claimant groups, when they lodge an application, attempt to identify those rights in the broadest terms possible. What happens when a registration test is applied is the tribunal, on occasion, requested that those rights be narrowed down, so that, even if you are successful in having your claim registered, the rights that you have once registered are vastly reduced, or can be vastly reduced, from those which were originally applied for. To me, that is discriminatory by nature in that the application of the legislation by bureaucrats ... is forcing a diminution of the original rights which were applied for by the claimants.[51]
Where native title is cast as a system of rights, the exercise of those rights can take a contemporary form even though their origin is the traditions and customs of the original Indigenous inhabitants. Where, however, native title is constructed as a collection of traditional practices, the contemporary observance of Indigenous laws and customs is not recognised as a native title right. Justice McLachlin also examined the problem of frozen rights as a failure to distinguish underlying rights from their exercise:
Having defined the basic underlying right in general terms, the question then becomes whether the modern practice at issue may be characterised as an exercise of the right.
This is how we reconcile the principle that aboriginal rights must be ancestral rights with the uncompromising insistence of this Court that aboriginal rights not be frozen. The rights are ancestral; they are the old rights that have been passed down from previous generations. The exercise of those rights, however, takes modern forms. To fail to recognise the distinction between rights and the contemporary form in which the rights are exercised is to freeze aboriginal societies in their ancient modes and deny to them the right to adapt, as all people must, to the changes in the society in which they live.
I share the concern of L’Heureux-Dube J that the Chief Justice defines the rights at issue with too much particularity, enabling him to find no aboriginal right where a different analysis might find one. By insisting that Mrs. Van der Peet’s modern practice of selling fish be replicated in pre-contact Sto:lo practices, he effectively condemns the Sto:lo to exercise their right precisely as they exercised it hundreds of years ago and precludes a finding that the sale constitutes the exercise of an aboriginal right.[52]
The construction in the registration test of native title as a bundle of particularised practices is contrary to certain developments in the common law in Australia. The decision of Justice Lee in the Miriuwung Gagerrong case demonstrates this development.
Native title at common law is a communal ‘right to land’ arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere ‘bundle of rights’: see Delgamuukw per Lamer CJ at 240-1. The right of occupation that is native title is an interest in land: see Mabo (No 2) per Brennan J at CLR 51. There is no concept at common law of ‘partial extinguishment’ of native title by several ‘extinguishment’ of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, ‘native title rights’ have been ‘extinguished’.[53]
Justice Lee’s decision is consistent with, and is influenced by, the development of the common law in Canada.[54] In contrast to the Canadian approach, the Federal Court in the Yorta Yorta decision adopts a very limited view of native title.[55] Native title is seen in that case as a set of traditional practices which will only be protected by the law if they continue to be practiced as they were by the original inhabitants. An analysis of this decision is provided in the Introduction to this report. As I indicate in this analysis, the common law of Australia is yet to finally determine whether its construction of native title will follow the Canadian direction or whether Australia will take a more limited approach to recognising and protecting contemporary Indigenous culture.
The assumption that governs the construction of native title as a bundle of particularised, unrelated practices rather than a generalised system of interrelated and generalised rights bears an alarming parallel to the ideological basis of terra nullius uncovered in the Mabo decision.
The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called ‘settled colonies’. Ex hypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation.[56]
The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal society when sovereignty was acquired by the British and that Indigenous law was a subtle and elaborate system which provided a reasonably stable order of society. Yet the reduction of native title to a bundle of specific and unrelated practices denies the generality and systematisation of rights which characterise any legal system including traditional Indigenous society. Constructing native title as atomised and particularised practices denies their origin in a system of traditional laws and customs and denies the capacity of these laws to develop and change into modern forms.
The requirement to show a current physical connection with the land in order to be registered does not accord with the common law test for recognition of native title. In Mabo (No 2) the High Court held that claimants need to demonstrate a spiritual or physical connection to the land, such a connection being proven according to traditional laws and customs. The requirement that native title claimants must show a physical connection to the land may operate to prevent native title claimants who can only demonstrate a continuing spiritual connection to the land, from having their native title rights protected by the procedures of the NTA. ...
[1] A full copy of the report can be found at <http://www.hreoc.gov.au/social_justice/native_title/> .
[2] NTA s 209.
[3] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 40 (the Mabo decision).
[4] 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.
[5] Wik v Queensland (1996) 187 CLR 1 (the Wik decision).
[6] Committee on the Elimination of Racial Discrimination, Decision (2)54 on Australia, 18 March 1999, UN Doc CERD/C/54/Misc 40/Rev 2.
[7] This is because, at international law, when the Commonwealth ratifies or accedes to an international treaty, all tiers of government are bound by the terms of that treaty. This principle is encapsulated in Article 27 of the Vienna Convention on the Law of Treaties which provides that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.
[9] [1992] HCA 23; (1992) 175 CLR 1 at 59-60.
[10] Webber J, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ [1995] SydLawRw 1; (1995) 17(1) Sydney Law Review 5 at 12-13.
[11] [1992] HCA 23; (1992) 175 CLR 1 at 59-60 per Brennan J.
[12] The members of the Yorta Yorta Aboriginal Community v The State of Victoria and Others (unreported, Federal Court of Australia) [1998] FCA 1606, 18 December 1998 Olney J (the Yorta Yorta case).
[13] As above, at 20.
[14] As above, at 20.
[15] As above, at 21.
[16] As above, at 22.
[17] As above, at 40.
[18] Section 82(2) of the original NTA gave greater weight to the cultural concerns of native title parties and provided that the Federal Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. Section 82(3) provided that the Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.
[19] Ward and Others (on behalf of the Mirriuwung and Gajerrong People) and Others v State of Western Australia and Others [1998] FCA 1478; 159 ALR 483 (the Mirriuwung Gajerrong case).
[20] Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.
[21] Mirriuwung Gajerrong at 504.
[22] Yorta Yorta at 41.
[23] As above, at 41.
[24] As above, at 42-43.
[25] As above, at 43.
[26] As above, at 43.
[27] As above, at 46.
[28] Justice Lee in Ward (on behalf of the Mirriuwoung and Gajerrong People) v Western Australia[1998] FCA 1478; (1998) 159 ALR 483 approves of the approach taken in Delgamuukw.
[29] This is subject to the availability of injunctive relief: see the High Court’s consideration of this issue in Fejo v Northern Territory [1998] HCA 58; (1998) 156 ALR 721.
[30] See North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1995) 185 CLR 595 (‘Waanyi’).
[31] Native Title Act 1993 (Cth) (the NTA) s 190B(5).
[32] NTA, s 190B(6).
[33] See for example NTA, s 31(2), s 39(1).
[34] NTA, s 190B(7)(a).
[35] NTA, s 190D(4). This is the so-called ‘locked gate exception’.
[36] NTA, s 190B(3).
[37] NTA, s 190B(9)(c).
[38] NTA, s 190C(2).
[40] NTA, Part 2, Division 3, Subdivision Q.
[41] NTA, Part 2, Division 3, Subdivision F.
[42] Acting Aboriginal and Torres Strait Islander Commissioner, Native Title Report 1998 HREOC, Sydney, 1998, pp 73-116.
[43] As above, p 100.
[44] As above, p 104.
[45] As above, pp 61-63, 72-77.
[46] Parliament of Australia, Native Title Amendment Bill 1997 – Explanatory Memorandum, paras 29.1, 29.2.
[47] Registration test decisions can be viewed at the National Native Title Tribunal’s Internet site at <www.nntt.gov.au>. A reference below to decisions includes the name of the claim, the Application Number and the date of the decision.
[48] Gnaala Karla Booja, WC98/58, 3 March 1999.
[49] As above p 8.
[50] R v Van der Peet [1962] 2 SCR 507 at 560 per McLachlin J.
[51] Glenn Shaw, Aboriginal Legal Service of Western Australia, in Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Section 206d inquiry into the operation of the Native Title Act 1993, Hansard, 13 April 1999, p 136.
[52] R v Van Der Peet [1996] 2 SCR 507 at 560.
[53] Ward and Others (on behalf of the Miriuwung and Gajerrong People) and Others v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483 at 508 per Lee J.
[54] Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.
[55] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Others (unreported, Federal Court of Australia) [1998] FCA 1606, 18 December 1998, Olney J.
[56] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 36 per Brennan J.
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