March/April 2002 March/April 2002 No.2/2002
The Native Title Newsletter is published on a bi-monthly basis. The newsletter includes a Contents summary of native title as reported in the News from the Native Title press. Although thethe summarysummary canvassescanvasses me-pa- Research Research Unit Unit 2 diapers fromfrom aroundaround Australia,Australia, itit isis not intended to be an exhaustive review of de- Features velopments. IndigenousAn update on fisheries: the British cultural, Columbia social The Native Title Newsletter also includes Treatyand commercial Process by Mark McMillan 33 contributions from people involved in Indigenous rights to water 5 native title research and processes. Views ex- Yorta Yorta – Court Report pressed in the contributions are those of the byCapacity Lisa Strelein building for Native Title 7 authors and do not necessarily reflect the Representative Bodies 6 Native title in the news 11 views of the Australian Institute of Aborigi- nal and Torres Strait Islander Studies. NativeApplications title in the news 13 7 ApplicationsNotifications 1014 STOP PRESS!! NotificationsRecent publications 1411 Native Title Research Unit publications 16 AIATSIS and YAMATJI LSC Recent publications 11 announce Native Title Research Unit publications 13 The Native Title Conference 2002: Outcomes and Possibilities 3-5 September Geraldton WA
The Newsletter is now available in ELECTRONIC format. This will provide a FASTER service for you, and will make possible much greater distribution. If you would like to SUBSCRIBE to the Native Title Newsletter electronically, please send us an email on [email protected], and you will be helping us pro- vide a better service. Electronic subscription will replace the postal service, please include your postal address so we can cross check our records.
Promoting knowledge and understanding of Australian Indigenous cultures, past and present NEWS FROM THE NATIVE TITLE RESEARCH UNIT
Upcoming conferences Native title essay competition AIATSIS and the Yamatji Land and Sea Australian tertiary students are invited to par- Council are convening the third Native Title ticipate in an essay competition by submitting Representative Bodies conference The Native an original essay on any theme of the law, his- Title Conference 2002: Outcomes and Possibilities., tory, economics, anthropology, or public pol- Geraldton, Western Australia, 3–5 Septem- icy of native title. The winner will receive an ber 2002. The conference receives principal airfare from their nearest Australian capital city sponsorship from ATSIC, and additional to Geraldton WA, to attend the Native Title sponsorship from the National Native Title Conference 2002: outcomes and possibilities, 3-5 Tribunal, the Attorney General's Depart- September 2002. In addition, the essay will be ment, and the WA government's Mid West published by AIATSIS in the issues paper se- Development Commission. ries Land, Rights, Laws: Issues of Native Title. See flyer at the back of this Newsletter for more The key themes are: information, or check our website. Report card on the first ten years Key issues for the next ten years Two new Issues Papers Latest developments: Ward and Yorta Yorta Prescribed Bodies Corporate The unit has published issues paper number Good leadership and governance 14 titled '"Like something out of Kafka": The relationship between the roles of the Plenary speakers include Geoff Clark, Dr National Native Title Tribunal and the Fed- Mick Dodson, Justice Robert French, Prof eral Court in the development of native title Marcia Langton, Graeme Neate, Noel Pear- practise' by Susan Phillips. son (tbc), Darryl Williams QC, and Hal Issues paper number 15 is also out, by Greg Wootten AC QC. McIntyre and Geoffrey Bagshaw 'Preserving Culture in Federal Court Proceedings: Gen- For a copy of the brochure and registration der Restrictions and Anthropological Ex- form see the native title research unit's web- perts'. page at www.aiatsis.gov.au, telephone 02 6246 1161, or email [email protected]. Something new Murdoch University is hosting a three day NGIYA– Talk the Law, National Institute of conference entitled Treaty – Advancing Recon- Indigenous Law, Policy and Practice. ciliation – A National Conference in a Global Context Concerning Racism, Land and Recon- Ngiya is a newly established unit and is part ciliation from 26 -28 June 2002. Day one will of Jumbunna Indigenous House of Learn- be devoted to Treaty relations between ing, University of Technology, Sydney and British colonials and Indigenous Peoples in has partnership status with the Australian North America and New Zealand, day two Institute of Aboriginal and Torres Strait Is- to historical roots to the ‘Treaty Question’ lander Studies. and day three will ask whether Australia should seek to negotiate a treaty/agreement, Useful web resources and if so what should it seek to accomplish. See further www.treaty.murdoch.edu.au. The Department of the Parliamentary Li- brary have posted a website of the state of play and chronology of native title since the 1992 Mabo decision, useful for anyone inter-
Native Title Newsletter No. 1/2002 2 ested in how the history of native title in- and also has a chronology of caselaw and forms current practise. The site is listed at other key developments in native title. If www.aph.gov.au/library/intguide/SP/mabo you would like to receive a hard copy of this .htm. The site includes direct links to: kit, contact the NNTT media unit at 08 caselaw on the internet (such as the Croker 9268 7315. Island decision); native title publications; media releases; and, native title institutions. New staff member The National Native Title Tribunal have Sarah Arkley has joined the NTRU as the compiled the 10 years of native title informa- new administrative assistant, and will be tion kit. The information kit, available at helping out on this Newsletter. www.nntt.gov.au, lists current statistics on native title agreements and determinations,
FEATURES
An update on the British Columbia now eastern Canada. One reason as to why Treaty Process the colonizing powers undertook to enter into treaties with Indigenous nations of ∗ By Mark McMillan eastern Canada may be attributable to the disproportionate number of Indigenous Ca- Is the treaty process that exists in the Cana- nadians to the British and French settlers. dian province of British Columbia in a state of flux? Has this flux has been caused by the Brand sets outs his reasons why this was the recently elected “Liberal” government, in- case when he said, “Initially given superior cluding the Premier of British Columbia Mr numbers, relative equality of power and Gordon Campbell who has a history of military necessity, British and French colo- “disagreements” of views that run against nial authorities treated Canadian native so- the interests and rights of First Nations in cieties as roughly equal. Only later did the Canada? This paper will give a brief over- first nation’s “succumb to the growing view of the history of British Columbia, the power of the settler communities."'1 Treaty Commission, and will look at the current referendum before the people of In the province of British Columbia both British Columbia. The referendum relates to the provincial and Federal governments how the provincial government should ne- took a very different view of their respective gotiate treaties with First Nations within the relationships with the First Nations of Brit- borders of British Columbia. ish Columbia.
History In 1763 the Royal Proclamation2 decreed that only the Crown could acquire land from Canada was not only colonized by the United Kingdom. France has had a major 1 Brant R 'British Columbia’s approach to Treaty influence in the colonizing process of what Settlement' in Meyers D ed. The Way Forward Collabo- is today – Canada. Both colonizing coun- ration and Cooperation ‘In Country’ NNTT 1995 at 131 tries actively sought treaties between them- 2 The Royal Proclamation signed by the King was the cornerstone of modern treaties. However this selves and the Indigenous nations in what is method of treaty making would appear to be unfair in that it requires Aboriginal nations to cede all their ∗ Mark McMillan is an Aboriginal Lawyer currently undefined Aboriginal rights for more defined treaty undertaking research with Ngiya – Talk the Law, Na- rights. This has been proved to deceptive as the ‘un- tional Institute of Indigenous Law, Policy and Prac- defined’ rights are interpreted by non-Aboriginal tice. people. The concept of Aboriginal groups “ceeding,
Native Title Newsletter No. 1/2002 3 the First Nations and this could only be the creation of further Indian reserves. done by treaty. However, as the colony of Canada assumed responsibility for “Indi- British Columbia was not established until ans and Lands reserved for Indi- 1849 some argue that the Royal Proclama- ans”5….with confederation, the First tion did not apply as British Columbia was Nations of British Columbia were sub- not in existence at the time of the Royal jected to federal control, notably the In- Proclamation. Upon the establishment of dian Act. The “band” system of the colony in 1849, the colony was granted administration was imposed on First to the Hudson’s Bay Company by royal Nations and bands were made subject to charter.3 detailed supervision by federal officials. The governments outlawed the great, Questions still exist regarding the legitimacy traditional potlatches which were the of the mode of acquisition and the appro- heart of the First Nations’ social and po- priation of First Nations’ lands. The result litical system. Throughout the province, of this confusion – and way that British the authorities removed children from Columbia has progressed – is that only small their families and communities, and areas of British Columbia have been subject placed them in residential schools. 6 to treaties. These include small areas on Vancouver Island and a small portion of Since the establishment of the colony in northeastern British Columbia that is cov- 1849 and confederation in 1871, First Na- ered by Treaty 8.4 tions in British Columbia have resisted much of the imposed structures and ideolo- The relationship between the provincial gies. Over time First Nations have devel- government and the government of Canada oped political organizations, mounted court has also led to some of the uncertainty of challenges, conducted blockades and held the land issues relating to the First Nations. negotiations with federal governments.’ This British Columbia did not join Canada until agitation over time and use of institutional- 1871 some twenty years after the colony was ized recognition of ‘rights’ led to the three established and run by business, namely the parties coming together in 1990 to try and Hudson’s Bay Company. The British Co- forge a new way forward with respect to lumbia Claims Task Force Report stated: rights issues. This culminated in what is now known as the British Columbia Treaty Proc- When British Columbia joined Canada in ess. 1871, aboriginal people, who were the majority of the population in British BC Treaty Commission Columbia, had no recognized role in po- litical decision-making. The Terms of the Union made no mention of aboriginal In 19907 the three parties to the British Co- title, but ensured provincial control over lumbia Treaty process were the First Na- tions, the Government of British Columbia and the Government of Canada. The parties releasing and surrendering” is tantamount to extin- set up a task force that would advise and guishment of Aboriginal rights, including title. The language used by governments for justifying such make recommendations that allow for the concepts is for the sake of “certainty”. advancement of relationships between the 3 The report of the British Columbia Claims Task force that was required to report on how the three parties to a treaty process – namely First Nations, 5 This relates to section 91(24) of the British North The Federal Crown and Provincial Crown- could not America Act - the first Canadian constitution, this explain why the policies of the Royal Proclamation was later replaced by 91(24) of the Constitution was not extended to areas west of the Rocky Moun- Act of 1982. tains. 6 British Columbia Claims Task Force Report at 4 The “numbered” treaties cover the bulk of the Ca- http://www.aaf.bc.ca/aaf/pubs/bcctf/intro.htm nadian land mass. The numbered treaties cannot be accessed 12/05/2002 discussed here because of space limitations; they will 7 The British Columbia Claims Task Force was cre- be discussed in a forthcoming paper. . ated on 3 December 1990.
Native Title Newsletter No. 1/2002 4 parties on issues relating to land and re- One of the more important yet seemingly sources. This British Columbia Claims Task innocuous aspects of the role of the Treaty Force made 19 recommendations, one of Commission is that of funding the First Na- which was to establish the British Columbia tions to be in the process. This question Treaty Commission8 (the Commission). The raises serious implications for all the parties three main roles of the Commission are: involved. The funding arrangements are • facilitation; contained in the formal agreement. From • public information; and the agreement it is Canada’s responsibility to • funding. 9 fund the Commission “subject to appro- priations by Parliament and approval by the 13 A formal agreement was signed creating the federal Treasury Board.” Similarly the pro- Commission in September 1992.10 Impor- vincial government funds the Commission tantly, from the formal agreement that cre- subject to legislative appropriations and “approval by the provincial Treasury ated the Commission, Canada and British 14 Columbia were required to legislate to es- Board.” The First Nations would appear to tablish the Commission.11 The First Nations be in an unenviable position with respect to Summit passed a resolution agreeing to the how they maintain, financially, their in- establishment the Commission. volvement within the treaty process.
The task force report that led to the formal The funding arrangements appear that the agreement covered many issues. The report federal government contributes 80 percent dealt with among others: and the provincial government 20 percent. The federal government funds their contri- • making recommendations;12 • bution by way of a combination of loans (88 discussion of natural resources; percent of funding) and grants (12 percent) • financial matters; to the First Nations. In contrast the provin- • how the negotiations should pro- cial government funds their contribution by ceed; and way of a grant to the First Nations. • how the BC Treaty Commission should operate. The way that the federal government funds First Nations to be active in the treaty proc- Funding of the Commission and the process ess, that is through a loan system, could be challenged on philosophical, moral and legal grounds.
8 This was Recommendation 3 of the Task Force. The federal government has authority under The other Recommendations can be found at the Constitution to have exclusive power http://www.aaf.gov.bc.ca/aaf/pubs/bcctf/conclsn.h tm at pp5-6. with respect to Indians and land reserved 9 BC Treaty Commission FACT SHEET – Negotia- for Indians. What this has meant in relation tion Support Funding dated June 1, 2001. to a “loan” for involvement in the treaty http://bctreaty.net/files/funding%20fact%20sheet.h process underscores the true relationship tml accessed 12/05/2002. between Canada and First Nations. As one 10 The Agreement was dated 21 September 1992. The Agreement was signed by the First Nations Summit of the most valuable assets that are held by (a coalition of many, but not all, First Nations of First Nations is the land itself, usually land British Columbia), the Government of British Co- held as a reserve. If the First Nations have lumbia and the Government of Canada. to use the only asset they have – the land – 11 2.1 (a) and (b) of the formal agreement dates 21 to be involved in the process then this September 1992 states: “Canada shall introduce leg- islation to Parliament to establish the Commission as makes a mockery of the federal govern- a legal entity to carry out the purposes of the agree- ments obligations under the constitution. A ment.” and “The Minister of Aboriginal Affairs shall hypothetical situation may arise where the introduce legislation to British Columbia Legislature to establish the Commission as a legal entity to carry out the purposes of this agreement”. 13 Article 5.2 of the formal agreement. 12 There were a total of 19 recommendations. 14 Article 5.2 of the formal agreement
Native Title Newsletter No. 1/2002 5 First Nation having agreed to be in the pro- uted by way of a grant to the First Nations cess – by having a loan under the auspices with obviously some funds being utilised to of the BC Treaty Commission – may have keep the Treaty Commission functioning for their reserve seized by the federal govern- salaries and other administrative costs. The ment in settlement of monies owed under federal government has contributed the re- the ‘loan’. mainder of the funds. As mentioned earlier How the above situation would play out un- the federal government provides the monies der the current arrangements poses very to the First Nations by a combination of vexing situations for all parties concerned. grants and loans. As with the provincial Under the current First Nations and Cana- government’s contribution to the adminis- dian government arrangements that exist, trative costs of the Commission, some of for a loan to be called in would require a the contribution of the federal government decision of the Band Council and then the also goes to the administrative costs of the decision can only be made to dispose of the Commission. land back to the federal crown. This situa- tion would seem to be untenable given that British Columbia Referendum the federal government has social programs that are funded on the basis of the reserves. When the Liberal party was elected to office Therefore if the government is using ‘loans’ in British Columbia in 2001, one of its elec- to coerce First Nations to be in the process tion promises was to put a referendum to then there is a risk that the underlying foun- the people of British Columbia relating to dations of entering the process is flawed. how the province would proceed with ne- gotiations in the BC Treaty Process. Another way that the loans may be called in is by way of with holding grant funding. In- The Government of British Columbia has stead of Band Councils and First Nations kept its promise of a referendum. The ques- receiving funding to implement essential tions that have ultimately been put to the programs, those funds may be diverted to people effectively extinguish any rights that repay the loans. The result is equally unten- First Nations may have within British Co- able for the First Nations involved. lumbia. The questions are: 1. Private property should not be ex- Similarly, the Treaty Commission – as part propriated for treaty settlements. of its role to control the funding to the First Nations – must turn its attention to the fact 2. The terms and conditions of leases the even on a rudimentary level the onus of and licences should be respected; the First Nations to take out such ‘loans’ fair compensation for unavoidable makes the power imbalance between the disruption of commercial interests parties very undesirable. As funding the should be ensured. process is critical in any practical sense, the funding arrangements that are in place and 3. Hunting, fishing and recreational controlled by the Treaty Commission makes opportunities on Crown land should it a very influential and overly powerful with be ensured for all British Columbi- respect to the First Nations’ participation. ans. How the loans and grants are structured seem to be glossed over by the literature. 4. Parks and protected areas should be maintained for the use and benefit Since the creation of the Treaty Commis- of all British Columbians. sion in 1992 the total amount spent by the federal and provincial governments has 5. Province-wide standards of resource been in $180 million Canadian dollars. The management and environmental amount of that has been contributed by the protection should continue to apply. provincial government is $36 million Cana- dian dollars. This money has been contrib-
Native Title Newsletter No. 1/2002 6 6. Aboriginal self-government should of denial of Aboriginal rights and title, ne- have the characteristics of local gov- gotiate treaties in good faith? ernment, with powers delegated from Canada and British Columbia. The referendum has placed the treaty proc- ess in a state of flux. The only way that this 7. Treaties should include mechanisms situation can be rectified is to see a restora- for harmonizing land use planning tion of the previous positions of the three between Aboriginal governments parties – including all the First Nations - to and neighbouring local govern- the process. That is to negotiate in good ments. faith.
8. The existing tax exemptions for Yorta Yorta – Court Report Aboriginal people should be phased out. By Dr Lisa Strelein, NTRU It is important to note that the referendum History of the case results will be binding on the Province. Even more frightening for onlookers of the In February 1994, the Yorta Yorta Nations process is that the decision will be made on began their case in the Federal Court for a the basis of the majority or 51 percent of determination that native title exists in rela- the returned votes. So in contrast to Austra- tion to land and waters along the Murray lian referendums where it requires a majority River in northern Victoria and southern of the voters (as voting is compulsory in New South Wales. Australia) – effectively a result that could have serious effects on the treaty process, While the traditional boundaries of the governmental relations with First Nations Yorta Yorta claim appear quite large, the and inter-governmental relations – could be public land where native title may still exist achieved with a relatively low return. As within those boundaries, that is, where no voting is not compulsory in British Colum- extinguishing acts have taken place, remains bia, this process is attracting a considerable quite limited (more recent maps produced amount of interest. As at 10 May 2002 there by the National Native Title Tribunal reflect had been over 683,000 returned votes.15 The this smaller area). The Yorta Yorta people referendum process was to be conducted have maintained a presence in the area over a six week period with votes being re- through continuous occupation of the for- quired to be returned by 15 May 2002.16 mer settlement at Cumeragunja, and con- stant use of areas within the Barmah forest The referendum has caused, and if accepted and along the Murray River. by the people voting, will further cause, a serious erosion in the relationship that exists The judge at first instance, Justice Olney, between the government of British Colum- found that despite the ongoing presence in bia, the people of British Columbia and the area, the Yorta Yorta Nations had First Nations.’ ceased to occupy the land ‘in the relevant sense’, that is, they had ceased to observe If the referendum questions are answered in the traditional laws and customs observed the affirmative, this will have a serious im- by their ancestors. He found therefore, that pact on the treaty process itself. One of the native title could not be determined because philosophies that underpin the treaty proc- the foundation of the claim had been ess is for the parties to act in good faith. ‘washed away’. The question that must be asked is, can the BC Government, with a negotiating position The appeals
15 www.gov.bc.ca.tno 16 ibid
Native Title Newsletter No. 1/2002 7 The Yorta Yorta appealed this decision to inquiry to the present, through section the Full Federal Court where a majority (2- 223(1)(a) and (b), emphasising the laws and 1) upheld the trial judge’s decision. Al- customs now acknowledged and observed. though they were critical of the approach the judge took to the inquiry, they consid- Justice Olney had taken note of s223 but ered that the findings of fact in relation to moved quickly to establishing the existence the abandonment of traditional law and of native title according to the common law. custom were open to the judge to make, re- Under this approach, Olney J began with gardless of the approach he had taken. the pre-contact traditional laws and cus- toms, most clearly articulated, his Honour The Yorta Yorta received leave to appeal to felt, in the writings of Edmund Curr. Olney the High Court in December 2001. The J was criticised for attempting to trace ac- case was argued in Canberra on 23-24 May tivities identified by Curr through to the 2002. present and highlighting the discontinuities in their observance and the importance The issues argued before the High Court placed on different practices by the current were: Yorta Yorta community that were not high- 1. The proper construction and operation of section lighted in Curr’s writings. 223(1) of the Native Title Act; 2. Whether ‘abandonment’ is a part of the common The Yorta Yorta argued that because of this law of native title; and approach Justice Olney had not paid suffi- 3. The concept of tradition and the treatment of oral cient regard to the contemporary laws and evidence. customs of the Yorta Yorta as required by the Act. The parties and interveners However, even having established s223 as The Yorta Yorta appeal to the High Court the starting point for the inquiry, the Court was opposed by New South Wales and had to consider the construction of the Victoria and a raft of other respondents. section to determine if the judge’s approach Victoria had held off joining the litigation was so erroneous as to infect his assessment until very late. They made some suggestion of the facts. There are two references in the after joining as a party that they were still statutory definition of importance in this interested in negotiations, however, for the regard. The first is the incorporation of Yorta Yorta a negotiated settlement outside ‘common law recognition’ into the statutory the Court could not result in a determina- definition at subsection (c) and the second is tion of native title. If the appeal had not the concept of ‘traditional’ in relation to continued, the determination against them laws and customs. would stand and they would have to find a solution outside of the native title context. ‘recognised by the common law’
The main interveners were the Human The Solicitor-General for the Common- Rights and Equal Opportunity Commission wealth argued that though the inquiry may and the Commonwealth. correctly start with the Act this does not mean that the Act has created a new right. s223(1) Section 233(1)(c) incorporates reference to the common law as part of the statutory The impact of the definition of native title definition. This unusual construction in the Native Title Act was central to the ar- caused a great deal of discussion before the guments in the High Court. The Court has Court as to how much of the common law been keen in a number of recent cases to was brought in by the reference. emphasise that the Act is the appropriate starting point for an inquiry into the exis- tence of native title. The Act directs the
Native Title Newsletter No. 1/2002 8 In the Full Federal Court the majority had guishment, they noted that while so much taken the view that (c) incorporated a series of the Act is devoted to extinguishment, no of common law requirements including: reference is made in the legislation to any 1. the native title holders are members of concept of abandonment. Indeed, as Justice an identifiable community identified by Gaudron noted, the Act stipulates that na- one another as members living under its tive title is not able to be extinguished con- laws and customs; trary to the Act. 2. that the community has continuously possessed interests in the relevant land Many of the judges drew a distinction be- under its traditional laws and customs; tween observance and acknowledgment – 3. the refusal of the common law to rec- the failure to exercise rights or observe laws ognise rights and interest that are - did not necessarily equate with the cessation (i) fundamentally inconsistent with of acknowledgment. Separating out con- the principles of natural justice, cepts of observance from existence of laws, equity and good conscience (re- the judges (including Callinan J who would pugnancy) not necessarily be expected to be sympa- (ii) extinguished, whether by - thetic to the appellants’ case) were con- • positive exercise of sovereign cerned with the implications of this power; or argument in circumstances where laws and • expiry, either by cessation of customs have been suppressed by colonial acknowledgment and obser- administrators. Gaudron J appeared to pre- vance of traditional laws and fer that the inquiry focus on whether the customs that form the founda- laws and customs were traditional under (a) tion of native title; or the native and (b). Gummow J also suggested that a title holders as a community, case may fail on questions of proof under group, or as individuals, cease to (a) without any inquiry as to abandonment. have a connection to the land. The concept of ‘tradition’ The respondents supported the majority’s view, arguing that if repugnancy, inconsis- If the Court accepts that the inquiry cannot tency and extinguishment by sovereign act start with the pre-sovereignty position and were incorporated under (c) why not other attempt to trace each right along an unbro- bases identified in Mabo – ‘one in all in’. ken chain of acknowledgment and obser- Apart from McHugh J, most judges seemed vance, and that there is no concept of to be of the view that to suggest that once abandonment incorporated by (c) there re- (a) and (b) had been dealt with a full inquiry mains the reference in 223(1) (a) and (b) to as to the common law requirements was the laws and customs being ‘traditional’. then necessary under (c) would effectively make (a) and (b) redundant. They im- The Solicitor-General for Victoria pursued pressed upon Counsel that the common law the approach of Olney J that it is not a of native title did not begin and end with matter of being on the land but being pres- Justice Brennan’s judgement in Mabo. Any ent ‘in the relevant sense’. He argued that reference in (c) must therefore be to the Olney had found a complete break in tradi- common law as amended by the Act and tional law and custom because those cus- developed through recent case law. toms relied on in the application for native title did not relate to anything that emerged The appellants and interveners argued that in the history up to 1880. ‘Traditional’ he (c) incorporated only the concepts of re- said, must be derived from pre-settlement. pugnancy, inconsistency with a fundamental While he admitted that a law or practice may principle as in Yarmirr, and the concept of be modified or adapted, it must be main- extinguishment by sovereign act. Some of tained by a ‘thread continuous from pre- the judges were concerned about the con- settlement’. cept of abandonment as a basis for extin-
Native Title Newsletter No. 1/2002 9 The respondent parties adhered to the con- On the weight to be given to oral evidence, cept of a bundle of rights where the evolu- reference was made to Canadian cases that tion of native title would be limited to the have dealt directly with the issue. However, same class of rights from 1788 to the pres- it did not receive a great deal of attention in ent. This ‘spear to a gun’ mentality freezes argument but was dealt with in the written the content of native title under the guise of submissions. evolution of methods of exercise. This un- derstanding of a ‘traditional’ Aboriginal so- The challenges for the appellants case ciety was criticised by the appellants as requiring a particular way of life or a certain Despite the respectful and often impas- character of occupation. The debate still sioned response from the Bench in the awaiting the outcome in Ward as to whether hearing, there are considerable obstacles native title reflects a bundle of distinct rights confronting the Yorta Yorta Nations’ case. or a system of laws, is again central to the ‘the finding of fact’ approaches on both sides. The High Court was not interested in re- hearing the evidence. The role of the High Kirby J also raised concern about the im- Court in an appeal is only to hear questions possible burden of proof that may be placed of law. The appellants were confronted by on native title applicants by a pre-settlement the fundamental problem, as Justice test, considering that the oral history of a McHugh pointed out when they sought group may only extend three, perhaps four leave for this appeal in December, that Jus- generations. There was reference by a num- tice Olney had made findings of fact in rela- ber of judges to a possible presumption of tion to the evidence. Counsel for the Yorta continuity, by which current laws and cus- Yorta, Neil Young, argued that the Judge’s toms based on the oral history of the group assessment of the facts could not be sepa- would be presumed to extend back to the rated from his approach to the inquiry. The assertion of sovereignty. The discussion Court may however, accept that the trial around non-observance and acknowledg- judge found that the current laws customs ment will also impact on the meaning at- are not ‘traditional’ and therefore fail the tributed to the concept of ‘tradition’. test under (a). Any misdirection by his Honour in relation to (c) would therefore be In some comments there were echoes of the immaterial to the outcome of the case for decisions of Deane and Gaudron JJ and the Yorta Yorta. Toohey J in Mabo, where there was almost a presumption of continuity in the situations Procedural fairness where the applicants have maintained occu- The respondents argued that the way in pation. This is a development in Canadian which the applicants had presented the case jurisprudence which may be a useful way to invited the judge to conduct the inquiry in reduce the burden of proof currently re- the manner he did. They could not then quired. take the opportunity presented by an appeal to effectively put a new case. Their Hon- Gleeson CJ made the comment that the ours were concerned about sending the case meaning of the word ‘traditional’ should be back for re-trial – the initial hearing took taken, in part, from that which it is describ- 114 days with 201 witnesses over 11,664 ing – that is, by reference to the nature of pages of transcript. However, Victoria ar- native title. While His Honour did not pur- gued that it would be unfair to have the case sue this question, it is an important point sent back without new evidence as the State because the concept of ‘traditional’ when had responded to the case as put. used by colonial parliaments could be ar- gued to be simply a way to describe distinc- Kirby J and Gleeson CJ suggested that per- tively ‘Indigenous’ rights. haps it was equally unfair to keep the Yorta Yorta to a standard of proof that is too high.
Native Title Newsletter No. 1/2002 10 mains whether the Yorta Yorta will receive a Conclusion positive outcome for their particular case. The Court is still faced with the dilemma of It is difficult to read the outcome of the overturning findings of fact by a trial judge, case. Gummow J and Gleeson CJ remained something they will be loathe to do. They very quite during arguments. It is likely that need to be confident that the test applied by the court will confirm a number of ap- Olney was so erroneous that it infected the proaches that they have been foreshadowed. assessment of the facts. The are also likely to make some strong comments in relation to what constitutes ‘tradition’. The fundamental question re-
NATIVE TITLE IN THE NEWS
Wangkangurru/Yarluyandi people are New South Wales seeking recognition of their native title Wyong Council is seeking confirmation rights over the area. They are not seeking from Darkinjing Land Council that the na- exclusive rights or interests. The other par- tive title claim around Norah Head includes ties involved in the mediation include repre- the historic buildings. Darkinjing has made a sentatives from pastoral, mining, claim over the site including the historic telecommunications, apiarists and state and lighthouse, and according to the Council the claim is for the whole site including the local government groups. Adelaide Advertiser buildings. Both Wyong Council and Darkin- 3 April 2002 jing Land Council are hoping to clarify this confusion. Central Coast Express 10 April 2002 In the Cooper Basin, the balance achieved between Indigenous land holders and min- ing interests has been a result of the future act regime or CO98 Agreements. Seven pe- Victoria troleum companies and three native title A Federal Court in Melbourne has deferred parties, namely the Edward Landers Dieri the Wotjobaluk native title claim until the 17 People, the Yandruwandha/ Yawarrawarka June 2002. The Wotjobaluk claim has been Peoples and the Wangkangurru/Yarluyandi in mediation since September 1999 and the Peoples, reached consensus in agreeing to Federal Court hearing was designed to de- petroleum exploration and royalties. Oil and cide whether mediation has run its course. Gas Australia 1 February 2002 The Federal Court has allowed until the next hearing in June to continue the mediation. The claim area is for 10,000 square kilome- Queensland ters of mostly Crown land and waterways. A meeting in Brisbane with Mount Isa City Wimmera Mail Times 22 March 2002 Council will discuss the ongoing progress of Indigenous Land Use Agreements (ILUA's) in the Mt Isa region. The Mt Isa Council recognise that the next stage will be the formation of a group of representatives South Australia from the Kalkadoon Tribal Council, one of The NNTT is going to begin mediating in a the key claimant groups in the area, to be- claim for 95,869 square kilometers of land come part of the agreement process. North north of Lake Eyre National Park. The West Star (Mt Isa) 3 April 2002
Native Title Newsletter No. 1/2002 11 from over 50 families are involved in the Wongatha claim which covers almost 184,000 square kilometres of the North Native title applications around Charters Eastern Goldfields. The Wongatha claim is Towers, Hugenden and Richmond have the result of the amalgamation of more than been advertised, and the NNTT has invited 20 native title claims in the area. Kalgoorlie people with interests in the land to register Miner 3 April 2002 that interest. The applicants are the Woolgar People applying for 224 square kilometeres of land north-east of Richmond; the Kudjala In the Wongatha native title claim, affidavits People applying for 319 square kilometres have been presented to the Federal Court of land south-west of Charters Towers and about restricted evidence that will be pre- the Cape Holdong Group applying for an sented to the court at sites near Leonora. area covering 19 square kilometres of land Nagalia Kutjungkatja Claim applicants Dolly south-west of Charters Towers. Parties have Walker and Kado Muir have asked that until 20 May 2002 to register their interest. parts of their evidence be restricted due to National Native Title Tribunal 7 February 2002 the secret men's and women's business that will be disclosed. Kalgoorlie Miner 26 March 2002 Parties are invited to negotiate the native title application around Quilpie, Bulloo, and There are currently more than 11,000 appli- Paroo. The Mardigan People are seeking to cations including 5,300 mining leases for have their traditional rights recognised over mineral tenement applications in Western approximately 28,580 square kilometres of Australia. Gold Gazette, WA 1 February 2002 south-west Queensland. Any person who thinks they may have an interest in the claim has until 20 May 2002 to apply to the Dis- trict Registrar of the Federal Court. National Northern Territory Native Title Tribunal 7 February 2002 Approval for a native title claim over the route that will become the pipeline carrying Timor sea gas from Darwin Harbour to the The National Native Title Tribunal has ad- processing plant at Gunn Point is being vertised to notify people with any interests sought in the Federal Court. The claim by in the land under native title application near Larrakia People and Tiwi People covers Kowanyama, north-east of Normaton on about 2,842 hectares and runs for 60 kilo- the Gulf of Carpentaria, to register with the metres. Northern Territory News 21 March 2002 District Registrar of the Federal Court to become a party to the application. The ap- plication by the Kowanyama People covers The National Native Title Tribunal is asking an area of 22,320 square kilometres. Parties people with interests in land and water that have until 20 May 2002 to register their in- is covered by 12 native title applicants in the terest. National Native Title Tribunal 7 February Northern Territory to register for talks 2002 which are aimed at reaching negotiated agreements. The applications are in the Darwin and Borroloola regions, and also in Western Australia rural townships in the northern region of the Territory. The Tribunal Territory Man- The second round of evidence in the first ager Mr Ian Williams said people or organi- Goldfields native title claim to reach the sations with interests in the area claimed Federal Court is likely to be heard from mid may want to be involved in working out June. More than 2,000 Aboriginal people how their rights may coexist with native title
Native Title Newsletter No. 1/2002 12 holders. They have until 2 July 2002 to apply The Federal Minister for Indigenous Affairs to become a party to the applications. Na- Phillip Ruddock has handed over the deeds tional Native Title Tribunal 20 March 2002 for land to the traditional owners of Her- mannsburg. The land comprises 515 hec- tares of former road reserves. Mildura Independent Star 7 April 2002
APPLICATIONS The National Native Title Tribunal posts summaries of registration test decisions on
Gunggari People QC96/1-2 Not Accepted QG6019/98 Southern Barada and QC00/4-1 Kabalbara People Accepted Q60004/00 Barada Bana Kabal- QC01/25 Accepted bara and Yetimarla Q6023/01
Native Title Newsletter No. 1/2002 13 APPLICATIONS CURRENTLY IN NOTIFICATION
Closing date Application no Application name 5 June 2002 NN02/1 Minister for Land and Water Conserva- tion NSW 2 July 2002 DC01/1 Mataranka NT DC01/26 Showgrounds NT DC01/50 Spring Creek No.4 NT DC01/51 Spring Creek No. 3 NT DC01/52 Nathan River NT DC01/53 Gunn Pt Gas Pipeline NT DC01/54 Fogg Dam NT DC01/55 Town of Fleming NT DC01/57 Pungalina NT DC01/56 Nutwood Downs NT DC98/11 Kalaluk NT VC99/10 Taungurung People VIC VC99/11 Taungurang People VIC 31 July 2002 DC01/60 Lower Reynolds Channel Point NT DC01/61 Lake Nash NT DC01/62 Roper Valley North NT DC01/63 Mountain Valley - Mainoru NT DC01/64 Chaterhoochee - Mt McMinn NT DC01/65 Big River Urapunga NT DC01/66 Goondooloo Moroak 2 NT DC01/67 Wongalara NT DC01/68 Kiana West NT DC01/69 Sandover River NT DC01/70 Wanderrie Road NT DC01/71 Daly Waters NT DC01/72 Middle Arm Area A NT 28 August 2002 QC01/29 Port Curtis Coral Coast QLD VC00/4 Yupagalk People VIC VC99/11 Taungurung People VIC
For further information regarding notification of any of the applications listed contact the National Native Title Tribunal on 1800 640 501 or www.nntt.gov.au.
RECENT PUBLICATIONS
Pila Nguru: The Spinifex People nised the native title rights and interests of by Scott Cane the Spinifex People over their homelands in Western Australia. On 28 November 2001, Chief Justice Mi- chael Black sat under the shade of a large So begins Scott Cane's detailed account of blue tarpaulin and read a short determina- the Spinifex People's culture and history. tion of native title which formally recog- This history is told through a variety of ways
Native Title Newsletter No. 1/2002 14 including through the strikingly beautiful artwork of the Spinifex People. Emerging Justice: Essays on Indigenous The land of the Spinifex People forms part Rights in Canada and Australia of the Great Victoria Desert in Western by Kent McNeil Australia. The history and culture that is retold in this book is specific to this par- Emerging Justice: Essays on Indigenous Rights in ticular area of country. Cane retells the im- Canada and Australia, is the latest book by portant Dreaming stories about the creation Canadian Professor Kent McNeil. This of the land and these stories are accompa- book is a collection of fifteen essays, which nied by artworks depicting the stories (al- explore the evolution of indigenous legal though the medium of oil on canvas rights in Canada and Australia. The collec- maintains the secrecy of many parts of the tion is divided into three parts. Part one story inappropriate for the uninitiated). traces the colonisation of Canada, the sub- sequent recognition of indigenous rights, Cane then follows through the later history and the legal definitions and burdens of of the Spinifex People, from the Maralinga proof in relation to these rights. These in- tests where the 'white men told us the soil quiries are made in light of recent Canadian was poisoned' to the 1992 ATSIC Regional case law, such as the 1997 Delgamuukw case meeting when the Spinifex representative, and its subsequent implications. Part two upon hearing about Mabo and native title, explores the concept of indigenous self- passionately spoke about 'land, of Dreaming government in Canada, which may be con- and of his country'. So began the nine year sidered a natural consequence of indigenous journey for native title over Spinifex coun- group rights. The essays in this section ex- try. amine self-government in relation to the Constitution, fiduciary obligations, and the Cane takes the native title claim as his point Canadian Charter of Rights and Freedoms. of departure for detailing the elaborate and Part three contains three essays examining culturally specific history of the Spinifex native title in Australia, which include dis- people spanning over 6,000 years. The per- cussions of Mabo No.2 and the effect the sonal stories of the Spinifex people includ- Racial Discrimination Act in the High Court’s ing elders Mark Anderson, Simon Hogan, decision, and the relevance of traditional and Betty Laidlaw and many others are a laws and customs in native title under the constant presence in the text. Indeed it is common law. only through these voices that Cane is able to convey the complex historical and cul- McNeil’s collection considers recent Cana- tural magnitude of the Spinifex People. dian and Australian case law in his essays. By juxtaposing Canadian and Australian le- This is a beautiful book that adeptly intro- gal developments of indigenous rights in the duces the reader to the profound spirituality one collection, this book is recommended of the land for the Spinifex People. The reading for those interested in contemporary clarity of the text enables a full understand- comparative examinations of indigenous ing of the deep significance of this land and rights. its important return to the Spinifex People through native title. Emerging Justice: Essays on Indigenous Rights in Canada and Australia is available from the Pila Nguru: The Spinifex People is available Native Law Centre, Publications Depart- through Fremantle Arts Centre Press ment, University of Saskatchewan, Canada. RRP $49.95 ISBN 0 88880 441 5 ISBN 1863683488
Native Title Newsletter No. 1/2002 15 NATIVE TITLE RESEARCH UNIT PUBLICATIONS
Issues Papers: Land, Rights, Laws: Issues of Native Title Native Title Research Unit Issues Papers are available through the native title link at
Native Title Newsletter No. 1/2002 16 Regional Agreements: Key Issues in Australia – Volume 2, Case Studies, edited by Mary Edmunds, 1999. A Guide to Overseas Precedents of Relevance to Native Title, by Shaunnagh Dorsett and Lee Godden. AIATSIS, Canberra, 1998.
Web Resources Sea Rights Resource Page: Croker Island and Native Title Offshore http://www.aiatsis.gov.au/rsrch/ntru/news_and_notes/ The High Court decision on Commonwealth v Yarmirr; Yarmirr v Northern Territory was handed down on 11 October 2001. This web page presents recent papers about the case, as well as other relevant materials on native title and sea rights issues.
Limits and Possibilities of a Treaty Process in Australia http://www.aiatsis.gov.au/rsrch/seminars.htm This series explores some of the issues surrounding the proposal for a national treaty. The issues include current proposals, past obstacles, issues for Indigenous representation, political and philosophical questions, national identity, reconciliation, belonging, public law implications, and comparisons with other countries.
ABOUT THE NATIVE TITLE RESEARCH UNIT
The Native Title Research Unit identifies The NTRU also fields requests for library pressing research needs arising from the searches and materials from the AIATSIS recognition of native title, conducts relevant collections for clients involved in native title research projects to address these needs, and claims and assists the Institute Library in disseminates the results of this research. In maintaining collections on native title. particular, we publish this newsletter, the AIATSIS acknowledges the funding support Issues Papers series and publications arising of the ATSIC Native Title and Land Rights from research projects. The NTRU organ- Centre ises and participates in conferences, semi- nars and workshops on native title and For previous editions of this Newsletter social justice matters. We aim to maintain click on the native title research unit link at research links with others working in the
Native Title Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies GPO Box 553 Canberra ACT 2601 Telephone 02 6246 1161 Facsimile 02 6249 1046 [email protected]
Native Title Newsletter No. 1/2002 17 Yamatji Land and Sea Council (YLSC) in conjunction with the Australian Insti- tute of Aboriginal and Torres Strait Islander Studies (AIATSIS) invite you to
The Native Title Conference 2002 outcomes and possibilities
Geraldton, Western Australia 3–5 September 2002
KEYNOTE SPEAKERS INCLUDE Geoff Clark, Chair of ATSIC Dr Mick Dodson, Chair of AIATSIS Justice Robert French, Federal Court of Australia Prof Marcia Langton, University of Melbourne Graeme Neate, President of NNTT Noel Pearson (tbc), Cape York Partnerships Darryl Williams QC, Attorney General Hal Wootten AC QC
REGISTRATION Full Registration $495 NTRB staff $440 Concession $330
Registration forms and brochure are available from the Native Title Research Unit webpage at www.aiatsis.gov.au or from [email protected] or tele- phone Sarah Arkley on 02 6246 1161.
For more information contact Natalie Barton, Conference Coordinator on 08 9964 5645 or 0414 936 058, fax 08 9964 5646, or at [email protected].
Sponsored by
The Australian In- YAMATJI stitute of Aborigi- LAND AND nal and Torres SEA COUNCIL YAMATJI BARNA BABA MAAJA Strait Islander ABORIGINAL CORPORATION NATIVE TITLE Studies REPRESENTATIVE BODY
Native Title Newsletter No. 1/2002 18 TAX INVOICE: with proof of payment, this form constitutes a tax invoice. ABN 62 020 533 641. REGISTRATION FORM for each additional registration, photocopy this form The Native Title Conference 2002 3-5 September, 2002 Geraldton, WA please write clearly PERSONAL INFORMATION title ______surname ______first name ______name as it should appear on name badge ______organisation/affiliation ______mailing address ______telephone/s ______facsimile ______email ______if you have any specific dietary requirements please detail here ______will you be attending the conference dinner (included in the full registration cost)? ..…..…...YES/NO will you be attending the welcome drinks (included in the full registration cost)? ..…..…..…...YES/NO
Please circle one For the majority of the time I will be attending the following break-out session: 1. Legal & Research Public Program. 2. Aboriginal field staff – restricted. Please attach a verification letter from your NTRB. 3. Executive workshop – restricted. Please attach a verification letter from your NTRB.
REGISTRATION* Quantity Price full registration – NTRB** $440 ___ $ full registration $495 ___ $ full registration – concession*** $330 ___ $ one day only, specify which day DAY __ $165 ___ $ one day only, concession*** DAY __ $82 ___ $ Day 1 & Day 2 OR Day 2 & Day 3 (please specify) $330 ___ $ Day 1 & Day 2 OR Day 2 & Day 3 concession*** $165 ___ $ seafood night (no concession) $60 ___ $ traditional feast (no concession) $40 ___ $ conference dinner only (no concession) $70 ___ $_____ TOTAL COST $ * Full registration covers conference materials, satchel, lunch, tea, coffee, transport to and from venues, wel- come drinks and conference dinner. Day rates include conference materials, satchel – subject to availability, lunch, tea, and coffee. All events are subsidised. GST included. ** NTRB includes the current staff of the native title representative bodies and counsel. *** concession includes full time students and unwaged; proof of concession (university card, health care card, etc) required with registration payment. PAYMENT cheques should be made out to ‘AIATSIS’ or pay by: Visa Mastercard Bankcard
amount ______card number ______name on card ______expiry date ______signature ______Please send form and payment addressed to ‘Yamatji Conference’, Native Title Research Unit, AIATSIS, GPO Box 553, Canberra ACT 2601(telephone 02 6246 1161, fax 02 6249 7714, or [email protected]). Registration will not be accepted without payment. Native Title Newsletter No. 1/2002 19 Closing date: Friday 16 August NATIVE TITLE HOW TO ENTER 2002 – no late entries will be All entrants must: accepted. ESSAY COMPETITION (1) complete the entry form, Submissions may previously including acceptance of have been submitted as course the rules and conditions; work for an undergraduate de- and gree, but must not have been submitted for publication or (2) submit the paper by email be published. to Natalie Barton, Yamatji Land & Sea Council at Submissions will be judged on [email protected]. the basis of their cogency and originality. The entry form is posted on Organised as part of the the Native Title Research Yamatji Land and Sea Unit webpage at Council www.aiatsis.gov.au. and AIATSIS
For more information, please NATIVE TITLE contact Natalie Barton on SPONSORED BY CONFERENCE 2002 08 9964 5645 The Australian Outcomes and Institute of OR Aboriginal and Possibilities Torres Strait 0414 936 058 Islander Geraldton, WA Studies 3-5 September THE RULES BACKGROUND THE PRIZE ESSAY PANEL TO THE AWARD Sandra Phillips, Managing The winner will receive an air- Editor, Aboriginal Studies fare from their nearest Austra- This year is the tenth anni- Press lian capital city to Geraldton versary of the Mabo deci- WA, to attend the Native Title David Ritter, Principal Legal sion. Acknowledging the Conference 2002: outcomes and pos- Officer, Yamatji Land & Sea anniversary, Australian terti- sibilities, 3-5 September 2002. Counsel ary students are invited to This prize also includes ac- participate in an essay com- Dr Lisa Strelein, Visiting Re- commodation, meals allowance petition by submitting an search Fellow, Manager, Na- and conference registration. original essay of between tive Title Research Unit, 5,000 and 10,000 words on AIATSIS In addition, the essay will be any theme of the law, his- published by AIATSIS in the tory, economics, anthropol- issues paper series Land Rights ogy, or public policy of The panel of judges is subject to Law: Issues of Native Title. (Pub- native title. Native title change without notice. lication subject to peer review must be a central issue of and AIATSIS reserves the the essay. rights to decide on publica- It is anticipated that the essay tion). For more information about the competition will be an ongoing Conference feature of the annual native title See Latest News at conference jointly held by www.aiatsis.gov.au NTRBs and AIATSIS.
21 Native Title Newsletter No. 1/2002