PROVIDING A SUSTAINABLE ECONOMIC LAND BASE FOR FOR ABORIGINAL POPULATIONS

A paper delivered at the 3rd National Immigration & Population Outlook Conference at the Adelaide Convention Centre on 23 February 1995
Sponsored by the Commonwealth Bureau of Immigration, Multicultural Affairs and Population Research

BACKGROUND

I propose to confine my remarks to the Aboriginal population of Australia and to the opportunities which may arise for some of the Aboriginal and Torres Strait Islander peoples to acquire title to their traditional lands as a result of a recent landmark change in the law.

I will also discuss the opportunities which the law now offers to enable them to negotiate for economic benefits from their lands when they regard that as appropriate under their traditional laws and feasible having regard to the nature and situation of the land.

MABO

The landmark change in the was effected by the decision of a majority of the Justices of the High Court of Australia in Mabo v Queensland (1991-1992) 175 CLR 1. The indigenous people of Australia as a whole had no land base recognised by Australian law until 3 June 1992, when that decision was handed down.

Upon European settlement Australian governments proceeded upon the basis that the indigenous people had no settled law and therefore nobody owned the land with the result that it all vested in governments to use as they saw fit.

That view was supported by the courts until Mabo where Brennan J said the assumption was false and quoted a finding by Blackburn J in the famous 1971 Gove case, Milirrpum v Nabalco Pty Ltd (1971):

"The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could b e called 'a government of laws, and not of men', it is that shown in the evidence before me."

Mabo decided that unless and until the Crown exercised its sovereign power to appropriate indigenous land rights and interests they could still exist.

The result is that governments proceeded across two centuries on the false premise that indigenous people had no traditional rights in land. Whether or not those rights were recognised, governments could have extinguished them all by executive act or legislation.  Legislation and executive acts have in fact extinguished many of them to meet the land demands of the wider community.

However, any attempt by a government to extinguish traditional rights in land following the Mabo decision and before the enactment of the Native Title Act 1993 would give rise to claims that the Racial Discrimination Act 1975 required the payment of just compensation to the owners of the traditional interests.

Indigenous traditional interests in land have come to be spoken of as 'native title'. In Mabo, Brennan J described it as follows:

"The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land whether communal, group or individual possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous in habitants."

The following general propositions emerge from Mabo:

a) the title may remain in existence where the community, group or individual continue to acknowledge the laws and observe the customs by which traditional connection to the land has been maintained

b) the title can be lost by abandonment of traditional laws and customs and once lost cannot be revived

c) the traditional laws and customs from which the native title is derived determine its nature but they may change and particular rights and interests will change in consequence

d) native title may only be transferred in accordance with traditional laws and customs, although it may be surrendered to the Crown

e) exclusive occupation of the land is not necessary but whether some continuing physical connection with the land is necessary may be an open question

f) extinguishment of native title requires the demonstration of a plain or clear intention to extinguish or impair native title, and may be shown by acts inconsistent with the continuance of native title. Once native title is extinguished it cannot be revived.

It is defined in the Act as follows:

"223(1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia."

There are unresolved legal issues arising out of the general propositions and the statutory definition. In particular, they include the effect of the grant of leases which contain reservations as to traditional indigenous use of the land leased, and the n ature of the connection with land and waters necessary to establish native title.

Some of the legal issues are so significant that it is likely that they will not be regarded as settled until they have been dealt with by the High Court. There are limited opportunities for them to be sent into the court system for decision in the course of the Tribunal's work, but some issues have been thrown up by the right of appeal from a decision by a presidential member not to accept an application for an approved native title determination.  Some of the issues can only arise after opposed applicat ions have been heard in the Federal Court, and it is quite possible that no appeal will reach the High Court before about eighteen months have elapsed.

However these important legal issues may be resolved, the National Aboriginal and Torres Strait Islander Land Fund established under the Act to assist Aboriginal peoples and Torres Strait Islanders to acquire land and to manage it in a way that provides economic, environmental, social or cultural benefits to them will be of central importance to those indigenous people who may be unable to succeed in an application for a native title determination.

THE NATIVE TITLE ACT AND THE NATIVE TITLE TRIBUNAL

The enactment of the Native Title Act 1933 (Cth) did not create a regime under which native title could displace valid existing interests and the following portion of its very detailed preamble is of particular significance:

"The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement t and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The needs of the broader Australia community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts."

A constitutional challenge has been made to the Native Title Act 1993, but pending the decision of the High Court I discuss it upon the basis that it is a valid enactment. If it were declared to be invalid native title owners would look to other remedies in the courts.

The most secure native title which indigenous claimants can achieve is by an application under the Act to the Tribunal for an approved determination of native title.  There is also provision in the Act for the Commonwealth Minister to recognise State or Territory bodies to make approved determinations of native title.  Their procedures must be consistent with those set out in the Act. No bodies have yet been recognised but the question of recognition of State bodies in New South Wales, Queensland and South Australia awaits resolution.

It is to be appreciated that the native title rights of indigenous people may be protected by the general law quite apart from the provisions of the Act and that in a proper case indigenous people could apply for an injunction in a superior court to preve nt any activity which would diminish their native title rights either before or during an application for an approved determination.

AN OPPOSED APPLICATION FOR A NATIVE TITLE DETERMINATION

I propose to deal with a central aspect of the Tribunal's work, namely an application by indigenous claimants for a native title determination. So far every native title application made to the Tribunal by indigenous claimants has been opposed and no agreed determinations of native title have been made.  It may be easier to reach agreement when some of the unresolved legal issues have been dealt with.

When the application is accepted by the Registrar, she gives notice of it, among others, to the applicable Commonwealth Minister and State or Territory Minister, any person who holds a proprietary interest in any of the area covered by the application, being an interest registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory and any representative Aboriginal or Torres Strait Islander body for any of the area covered by the application and also gives public notice of the application.

When she has given those notices she is taken to have given notice to all persons whose interests may be affected by a determination of native title and they have two months to give notice that they want to become parties to the application.

It is very common for there to be a number of parties to applications and it is important to appreciate their different interests. In particular, State and Territory governments are likely to give close consideration to the question whether or not past governmental activities have extinguished native title.

A representative Aboriginal/Torres Strait Islander body is a body which the Commonwealth Minister has determined is broadly representative of the indigenous people in the area which will satisfactorily perform the function of facilitating native title claims, assist in the resolution of disagreements among indigenous people about native title claims and assist them, if requested, in negotiations and proceedings under the Act.

The representative body should bring the application to the attention of any other members of the indigenous community who assert rights to the same land, so that all indigenous interests which affect the land are represented.

When the two month period has expired the President of the Tribunal must direct the holding of a conference between the parties or their representatives presided over by a member to help in resolving the matter.

The conference required by the Act is part of an extremely flexible ongoing process, often preceded by community liaison visits to the indigenous and broader communities in the area concerned and by meetings with the applicants and other parties to explai n the process and assist them in defining their objectives. It may involve an initial plenary meeting at which parties need not be physically present if they arrange for others to represent them and is continued by subsequent meetings with individual part ies or groups in whatever way best advances the prospect of an agreed determination.

The mediation process will explore the possibility of reaching some subsidiary agreements between the claimants and parties which protect their future interests in the event that a native title determination is ultimately made. The application could be amended to reflect the agreements and would enable those parties to withdraw from the application and therefore from any subsequent Federal Court litigation.

It is only if the parties, or the remaining parties, reach agreement in writing signed by the or on their behalf as to the terms of a determination of native title which the Tribunal is satisfied is within its power and would be appropriate in the circums tances that the Tribunal makes a determination of native title.  It will be seen therefore that the Tribunal does not decide whether or not native title will be granted unless all the parties to the application agree.

If, after mediation, the parties do not reach agreement the application must be lodged with the Federal Court for decision. They remain parties in the Federal Court where other persons may seek leave to become parties if their interests are affected. There may of course be further mediation and discussions between Aboriginal claimants and other parties after an application has been sent for decision in the Federal Court.

It has to be appreciated that native title will often have survived over land because it was never seen by the broader community as having economic potential. Furthermore, customary laws and traditions will determine whether economic development of some or all of the area concerned is permissible, and as they are not static the approach of future generations of native title holders may not be the same as their predecessors. Nevertheless, in cases in which the claimants are prepared to consider economic use of land which has some economic potential, the mediation process brings the indigenous claimants into contact with a range of other interests in the broader community and creates an important occasion to explore these matters.

In exploring them it is to be remembered that native title can only be extinguished in accordance with the Act and that native title holders may, under an agreement with governments, surrender it or authorise future acts which will affect it for any lawful consideration including the grant of a freehold estate or other interest in relation to land, and that such agreements may be made on a regional or local basis.

That is a matter dealt with in the preamble to the Act as follows:

"Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b) proposals for the use of such land for economic purposes."

There will be cases in which the land over which native title is claimed is a series of scattered and fragmented areas of what remains after the extinguishing grants or reservations by government where the only practical solution for indigenous people is an over all settlement of their interests in the area by the surrender of some land in exchange for title to other land which in turn may have possibilities for economic development.

Much has been written about negotiated settlements of indigenous land claims in Canada and indeed about Maori claims, but in my view although those achievements afford a stimulus to creative solutions for the settlement of Aboriginal and Torres Strait Islander native title claims, activities and solutions on a very large scale are only viable if they are consonant with the customary rights of the native title claimants.

The importance of the Tribunal mediation process is that it occurs at an early stage, involves all the interested parties, is without prejudice and is flexibly designed so that native title claimants and other parties can work towards mutually satisfactory outcomes.

Other parties will have to appreciate that in land use matters indigenous people will now come to the negotiating table with rights and interests which the broader community had never previously acknowledged or respected. Those native title rights may not bear a neat resemblance to the land interests which are known in our law of property but they may sometimes be very powerful indeed.

There is the opportunity for principled negotiations of the sort which the Jawoyn Association brought to fruit in early 1993 by the Mount Todd agreement with Zapopan NL in the context of the Aboriginal Land Rights (Northern Territory) 1976 and the recent changes in the law.

There should never again be the same confusion and concern in the Aboriginal community as arose from the agreement made between CRA and six East Kimberley Aboriginal people in July 1980 in relation to the Argyle Diamond Mine. They did not have the benefit of land rights legislation nor were any of their traditional interests in the mine site protected by the law.

At a very simple but very important level Mabo is about the removal of a falsehood from our law, and as Sister Veronica Brady [1] said it wrote the Aborigines back into a history from which we had written them out.

The Native Title Act 1993 has as the first of its main objects the recognition and protection of native title Legislation for the recognition of rights which have never been lawfully expropriated by our governments carries no implication that we may tell the native title holders how they should use them.

NOTES

[1] Brady, V.  Caught in the Dark (1994), Angus and Robertson, pp 14 -15