Native Title Report 2003 Human Rights and Equal Opportunity Commission © Human Rights and Equal Opportunity Commission. This work is copyright. Apart from any use permitted under the Copyright Act 1968 (Cth), no part may be reproduced without prior written permission from the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission. Requests and inquiries concerning the reproduction of materials should be directed to the Executive Director, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney NSW 2001. ISSN 1322-6017 Cover Design and Desktop Publishing by Jo Clark Printed by Acceptor Printing Australia Acknowledgements The Aboriginal and Torres Strait Islander Social Justice Commissioner acknowledges the work of Human Rights and Equal Opportunity Commission staff (Margaret Donaldson, Yvette Park and John Southalan), as well as Mary Edmunds, Nic Green, Christina Lange, Greg Marks, Loretta de Plevitz and Ed Wensing, in producing this report. In researching and preparing this year’s report, the Commissioner received valuable assistance from numerous people across Australia. The Commissioner would like to record his grateful appreciation for the time and information made available by officers from: Aboriginal and Torres Strait Islander Services, Aboriginal Legal Rights Movement, Arnold Bloch Liebler, Australian Institute of Aboriginal and Torres Strait Islander Studies, Cape York Land Council, Carpentaria Land Council, Central Land Council, Central Queensland Land Council, Chalk and Fitzgerald, Commonwealth Government, Commonwealth Parliament, Federal Court of Australia, Goldfields Land and Sea Council, Gurang Land Council, Indigenous Land Corporation, Kimberley Land Council, National Native Title Tribunal, Native Title Services Victoria, New South Wales Government, New South Wales Native Title Services Limited, Ngaanyatjarra Land Council, North Queensland Land Council, Northern Land Council, Northern Territory Government, Queensland Government, Queensland Indigenous Working Group, Queensland South Native Title Representative Body, South Australian Government, South West Aboriginal Land and Sea Council, Tasmanian Aboriginal Land Council, Tasmanian Government, Torres Strait Regional Authority, Victorian Government, Western Australian Aboriginal Native Title Working Group, Western Australian Government, Yamatji Marlpa Bana Baba Maaja Aboriginal Corporation, and the Yorta Yorta Nations. About the Social Justice Commission logo The right section of the design is a contemporary view of a traditional Dari or head-dress, a symbol of the Torres Strait Islander people and culture. The head-dress suggests the visionary aspect of the Aboriginal and Torres Strait Islander Social Justice Commission. The dots placed in the Dari represent a brighter outlook for the future provided by the Commission’s visions, black representing people, green representing islands and blue representing the seas surrounding the islands. The Goanna is a general symbol of the Aboriginal people. The combination of these two symbols represents the coming together of two distinct cultures through the Aboriginal and Torres Strait Islander Social Justice Commission and the support, strength and unity which it can provide through the pursuit of Social Justice and Human Rights. It also represents an outlook for the future of Aboriginal and Torres Strait Islander Social Justice expressing the hope and expectation that one day we will be treated with full respect and understanding. © Leigh Harris. Human Rights and Equal Opportunity Commission 30 January 2004 The Hon Philip Ruddock MP Attorney-General Parliament House Canberra ACT 2600 Dear Attorney I am pleased to present to you the Native Title Report 2003. The report is provided in accordance with section 209 of the Native Title Act 1993, which provides that the Aboriginal and Torres Strait Islander Social Justice Commissioner submit a report regarding the operation of the Native Title Act and its effect on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders. This year’s report discusses the right to development and its implications for the native title system. The report examines whether the native title negotiation process at a State and Commonwealth level contributes to sustainable development for Indigenous people. Yours sincerely Dr William Jonas AM Aboriginal and Torres Strait Islander Social Justice Commissioner Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner Level 8, Piccadilly Tower, 133 Castlereagh Street, Sydney, NSW 2000 GPO Box 5218, Sydney, NSW 2001 Telephone: 02 9284 9600 Facsimile: 02 9284 9715 E-mail: [email protected] Contents Introduction 1 Chapter 1 Native title and the right to development 5 The right to development 8 Non-discriminatory Development 10 Participatory Development 11 Culture and Development 13 Development that realises economic, social and cultural rights 15 Self-Determined Development 18 Sustainable development 24 A sustainable development framework for native title negotiations 28 Sustainable Development Relies on an Effective Process 28 Sustainable Development Requires Capacity Development 29 Partnerships 39 Chapter 2 Native Title Policy – State and Commonwealth profiles 43 New South Wales 44 Northern Territory 49 Queensland 53 South Australia 60 Tasmania 69 Victoria 71 Western Australia 77 Commonwealth 88 Chapter 3 An Evaluation of Native Title Policies throughout Australia 101 Part 1: Evaluation of State and Territory policies 103 Negotiate not Litigate 103 The Relationship between States’ Native Title Policy and their Indigenous Policy 109 Negotiations occur within a legal framework 117 Negotiations occur within Land Management framework 130 The Relationship between Native Title and existing Indigenous land regimes 133 Indigenous participation in policy formulation 143 Part 2: Evaluation of Commonwealth native title policy 148 Commonwealth’s participation in native title litigation 148 Integrating Native Title Policy into Commonwealth’s Indigenous Policy 154 Commonwealth funding of native title system 155 Chapter 4 Native Title and Agreement Making: a Comparative Study 167 Canada 169 The legal and constitutional context 169 The Comprehensive Land Claims Settlements Process: General outline 174 The Nunavut Comprehensive Land Claim Settlement 176 Comprehensive Agreements – issues and contemporary developments 177 Treaty-making in British Columbia – an incremental approach 178 “Dogribs dealt a new deal” 185 Details of the Agreement 186 Implications from Canadian Law and Practice for the Australian Situation 187 The United States of America 189 The legal context – Indians as sovereign nations 189 Sovereignty today 191 International law, US Indian law and the Mabo decision 192 Native title rights 193 Policy history and framework 194 Self-determination era 195 Significance of Self-Governance 200 Negotiated settlements 203 Implications from US law and practice for the Australian situation 205 1 Introduction This is my fifth report to the Australian parliament on the effect of the Native Title Act 1993 on the human rights of Aboriginal and Torres Strait Islander Peoples. In these five years of reporting my main focus has been on the legislative and judicial developments in native title law and the effect of these developments on the recognition of Indigenous rights to land. I have also followed the dynamic relationship between the common law and the legislature in defining and then re-defining the principles that have come to govern the recognition of native title as a legal concept. Last year my report focused on the final developments in this process with the High Court handing down two significant decisions, the Miriuwung Gajerrong1 decision and the Yorta Yorta2 decision, which clarified the principles upon which the recognition and extinguishment of native title are determined. My response to these decisions in last year’s Native Title Report noted that the concept of native title emerging from the High Court is one not simply of the law providing a vehicle for Indigenous people to enjoy their cultural and property rights, but rather where the law has become a barrier to this enjoyment. I also argued that the extinguishment of native title, as it occurs under Australian law, is racially discriminatory both under domestic law and at international law. To these High Court decisions there has been no legislative response, thus ushering a period of stability and consolidation as far as the law of native title is concerned. However, native title is more than a legal process. It is also a political process whereby Indigenous people enter a relationship with the state on the basis of their identity as the traditional owner group of an area of land. In some cases native title has provided the first opportunity since British sovereignty for a relationship of this type to be formed. In building its newly formed relationship with traditional owner groups there is an opportunity for the state to move beyond its role as respondents to native title claims and direct its efforts towards achieving what is generally accepted as a critical policy goal of transforming the economic and social conditions in which many Indigenous people live in 1 Western Australia v Ward and o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’). 2 Members of the Yorta Yorta Aboriginal Community v Victoria & o’rs [2002] HCA 58 (12 December 2002) (‘Yorta Yorta’). Introduction