Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO

15 November 2019

Committee Secretary Joint Standing Committee on Northern Australia PO Box 6021 Parliament House Canberra ACT 2600

Dear Secretary

Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia

The Commission welcomes the opportunity to make comments to the Joint Standing Committee on Northern Australia’s inquiry into and report on the opportunities and challenges associated with land rights, native title and other land-related agreements (together with payments, benefits and access arrangements under these agreements) for the purpose of engaging Traditional Owners in the economic development of Northern Australia, including, but not limited to:

1. The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates;

2. The role, structure, performance and resourcing of Government entities (such as Supply Nation and Indigenous Business Australia);

3. Legislative, administrative and funding constraints, and capacity for improving economic development engagement; and

4. Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities.

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5. The principle of free, prior, and informed consent.

6. Opportunities that are being accessed and that can be derived from Native Title and statutory titles such as the Aboriginal Land Rights (Northern Territory) Act 1976.

7. The overall impact these are having on encouraging investment and existing investment.

For the purposes of this submission, the Commission will make specific comment on the following items:

• Land rights, native title and other land-related agreements;

• The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates;

• Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities;

• The principle of free, prior, and informed consent.

Land rights, native title and other land-related agreements

The Commission notes the concerns raised by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Human Rights Committee in relation to the Native Title Act 1993 and the broader native title system.1 As stated in previous submissions and reports,2 the Commission is of the view that the Native Title Act 1993 in its current form does not provide for a just and equitable native title system.3

The Commission considers that key reforms to the native title system are required to ensure that economic development in Northern Australia progresses in a manner consistent with Australia’s international human rights obligations, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Reforms to the system should include measures to: • Ease the process of establishing connection; • Enable prior extinguishment of native title to be disregarded; • Remove impediments to leveraging native title for development opportunities; and

• Provide adequate resourcing to organisations responsible for administering native title.

For Aboriginal and Torres Strait Islander people to have better access to economic opportunities, the challenges of presumption of continuity in the Native Title Act 1993 needs to be changed. Many stakeholders, including the Commission, support the introduction of a presumption to ease the evidentiary burden placed on Aboriginal and Torres Strait Islander applicants in proving native title.4

The time that has elapsed between the assertion of sovereignty in 1788, and the recognition of native title in 1992, means that establishing the survival of native title rights and interest over a period of more than 200 years presents significant challenges of evidence. This process is particularly unjust when one considers the history of government policies that removed many Aboriginal and Torres Strait Islander peoples from their lands, thereby undermining their ability to prove continuous connection with their lands and waters, in accordance with their traditional laws and customs.5

The current requirements for connection make it much more difficult for Aboriginal and Torres Strait Islander people to establish connection to country, be granted a native title determination, and to use native title to negotiate economic opportunities for their communities.

The Commission recommends that the Australian Government implement in their entirety the recommendations from the Commission’s 2016 Social Justice and Native Title Report and the report of the Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) and that it take into consideration the recommendations from previous native title working groups, reviews and inquiries to ensure an efficient and consistent approach is applied to reform processes to the native title system.6

The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates

It is clear from current submissions to the Inquiry that the role of prescribed body corporates (PBCs) 7 is key to ensuring the effective management of native title claims.

The National Native Title Council in their submission have said ‘PBCs have statutory obligations to consult with many thousands of native title holders in relation to a broad range of major and less significant land use proposals’.8

They also said that PBCs have ‘the potential to be the organisational foundation for sustained community benefit, economic development activities cultural maintenance and social outcomes for native title holders, particularly in remote locations’.9

PBCs and their relationship with Traditional Owners is essential for economic development in Northern Australia. The Cape York Land Council Aboriginal Corporation said that:

This is a very important stage in the restoration of Traditional Owner rights and the creation of structures that potentially enable Traditional Owners to engage with mainstream economic activities. They play a key role in the process including facilitation of consultation with the Traditional Owners.10

A key theme from many of the submissions is having adequate Government funding and support for PBCs including legal, financial, operational, corporate governance and distribution of benefits advice and assistance.11

The Torres Strait Regional Authority have said ‘to an extent the capacity for improving economic development and engagement with Traditional Owners (TOs) in the Torres Strait is reliant on the functionality of PBCs managing native title rights and interests’.12

The Cape York Land Council Aboriginal Corporation also said that ‘if this support is not provided most RNTBCs will be unable to effectively perform these functions and the benefits of native title rights will not be achieved’.13

PBCs currently receive $50,000 per annum in funding from the Commonwealth government and there have been calls to increase that amount. The National Native Title Council have recommended that the annual amount provided to each PBC be increased from $50,000 to $300,000.14

The Yamatji Marla Aboriginal Corporation have said ‘funding could assist with performing a viability study of each PBC with regard to economic opportunities and a skills audits of the common law holders’.15 The added supports would enable ‘the PBCs to focus on managing native title as per their statutory obligations’, as stated in the Kimberley Land Council’s submission.16

The Commission supports the role of PBCs and recommends the Government support native title holders to effectively govern their lands, territories and resources through their PBCs, including by providing PBCs with adequate

4 technical and financial resources to meet their administrative, legal and financial functions.

Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities.

The Indigenous Property Rights Project The Indigenous Property Rights Project (Project) was an Indigenous led national dialogue between Aboriginal and Torres Strait Islander peoples and government/s about opportunities and challenges for economic development and wellbeing on the Indigenous Estate. The Project was facilitated by the Commission regarding ways to leverage the economic potential of the Indigenous Estate with the consent and guidance of Traditional Owners and aims to deliver sustainable outcomes for Aboriginal and Torres Strait Islander peoples.

The Commission draws attention to relevant priorities that came out of the Indigenous Property Rights Project in relations to economic development:

• Long term lease arrangements over the Indigenous Estate

• Increasing incorporation options for PBCs, including under the Corporations Act, and regulation by the Australian Securities & Investments Commission (ASIC) rather than the Office of the Registrar of Indigenous Corporations (ORIC)

• Progressing the recommendation of the Expert Indigenous Working Group in the Investigation into Indigenous Land Administration and Use for exemptions and concession from land user charges, land taxes and duties where Indigenous land is granted as freehold or leasehold to Indigenous land holding bodies and PBCs.

Indigenous Water Rights The Commission supports Aboriginal and Torres Strait Islander peoples’ rights to water and water resources. Traditional Owners in Northern Australia have a right to the equal exercise and enjoyment of their human rights, including water and water resources.

Not only is water significant to the spiritual values of Aboriginal and Torres Strait Islander peoples, water is vital for cultural and economic development.17 Indigenous water rights are often viewed and allocated through a narrow cultural and social lens, with other rights such as economic and environmental

5 water rights being excluded. The status of Indigenous water rights, particularly native title water rights, remains unresolved and limits Traditional Owners’ access and allocation to water resources.

Lessons be can be taken from the experiences of Traditional Owners along the Murray Darling Basin and the effects of water management and water rights.

The Barkandji people are one of the Traditional Owners along the Darling River, also known as the Barka River in the local language.18 In 2015 the Federal Court recognised the rights of the Barkandji people to 128,000 square kilometres of land which includes land on both sides of the Barka River in western NSW making it the largest native title determination in the State.19

As part of the Barkandji people’s native title claim, a 2012 study found only 0.01% of water rights are under Aboriginal control.20 The limited access to water rights from the Barkandji’s native title, particularly in the Murray-Darling Basin has been a barrier for the local Aboriginal community and the surrounding communities.

The Murray-Darling basin covers most of New South Wales, Victoria and the Australian Capital Territory, as well as parts of Queensland and South Australia. It spans 3,375km from its tributaries in the north to the Murray mouth.21 The river system has been dramatically altered by intensive agriculture which has seen a huge expansion of irrigated crops resulting in massive extractions of water.22 This has left parts of the river and its wetlands sensitive to drought and has left the river red gum forests under stress from lack of water and increased salinity’.23

The water management plan of the Murray Darling basin does recognise that Aboriginal people have a right to cultural flows for spiritual, economic and environmental purposes but, in practical terms, cultural flows remains just a concept.24

Cultural flows are ‘water entitlements that are legally and beneficially owned by the Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, natural, environmental, social and economic conditions of those Nations’.25

Barkandji Traditional Owners have been lobbying governments to secure water allocations that would enable Indigenous communities along the river to actively take part in the management of the river system.26

It is important to note that many native title holders will have limited access to water rights. This is a major concern for Traditional Owners as land and water are interconnected. Not having access to water rights can be a barrier not only to

6 effective cultural management of water and water resources but also to economic development opportunities, particularly as native title holders may not necessarily have ownership of water and water resources that are on their traditional lands.

Aboriginal and Torres Strait Islander people living in Northern Australia make up 30% of Australia’s Indigenous population.27 As recommended by the Commission in the 2008 Social Justice and Native Title Report, to enable Traditional Owners to protect and manage their lands, there should be provisions for environmental and economic water rights to be included as separate allocations by the State and Territory Governments.28

Distinct water rights including cultural flows should be provided for both environmental and economic purposes. At a minimum, Indigenous water rights that come under reserved water rights should include and account for separate cultural, and economic water allocations and, where water management is being conducted by Traditional Owners or PBCs on behalf of the government, in distinct environmental water allocations.29

As Australia becomes increasingly scarce of water due to climate change, long periods of drought, over-allocation to industry and agricultural stakeholders, and population growth and migration, the recognition and security of Indigenous rights to water will become increasingly important and highly competitive particularly around economic development.

The Commission recommends:

• Traditional Owners be involved in any water reform and policy processes and water management committees. • Governments understand and recognise the cultural significance of water to Traditional Owners in the development and implementation of water laws and policies. • A standardised approach to assessing access to water with an independent body to assess water access for different purposes including economic development. • Governments develop a comprehensive evidence-based approach to the allocation of water that aims to minimise the risk to water systems such as seas, rivers, lakes and surrounding ecology and ensures the flow of the water system in perpetuity does not threaten or have lasting adverse effects on the water systems flow. • Governments review the equality of access to water markets based on supply and demand, such as the price of water and consider fairer

alternatives as the cost of water and water licences are out of reach of most Aboriginal and Torres Strait Islander communities.30

The principle of free, prior, and informed consent

The Commission highlights the critical role of free, prior and informed consent and Aboriginal and Torres Strait Islander communities’ meaningful participation in decision making to supporting Aboriginal and Torres Strait Islander economic development in Northern Australia.

When making policies, laws or undertaking activities that affect Indigenous peoples, governments and others should negotiate with the Indigenous peoples concerned with the aim of obtaining their free, prior and informed consent.

These activities include:

• projects or decisions that affect Indigenous peoples’ lands or territories, including mining, development and the use of sacred sites • the use of biological materials, traditional medicines and knowledge, including artwork, dance and song • making agreements or treaties between government and Indigenous peoples • the creation of laws or policies that affect Indigenous peoples • actions that could lead to the forced removal of Indigenous peoples from their lands or territories.31

The principle of free, prior and informed consent should underpin the development of all frameworks of engagement with Traditional Owners in Northern Australia and their representative institutions. This principle is fundamental to ensuring the effective participation of Aboriginal and Torres Strait Islander people in decision-making and is a vehicle for reinforcing and implementing all the rights contained within the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).

Free, prior and informed consent has been identified as a ‘requirement, prerequisite and manifestation’ of the exercise of Indigenous peoples’ right to self-determination.32

The Commission has previously commented on the importance of the principle of free, prior and informed consent both generally and in the context of native title. Most recently, the Commission made a comprehensive submission to the 2018 EMRIP study (Attachment A).33

The Commission urges the Australian Government to consider that the free, prior and informed consent of Indigenous peoples concerned is obtained prior

8 to the approval of any project affecting their lands, territories and resources, particularly in connection with development, utilisation or exploitation of mineral, water or other resources; to provide effective mechanisms and take appropriate measures to provide just and fair redress; and to mitigate adverse environmental, economic, social, cultural or spiritual impact.34

Yours sincerely

June Oscar AO Aboriginal and Torres Strait Islander Social Justice Commissioner

Endnotes

1 Australian Human Rights Commission – Submission to Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126) 2 Social Justice and Native Title Report 2016, 2015, 2014, 2013 3 Australian Human Rights Commission, Submission to the Attorney-General’s Department Exposure Draft Native Title Legislation Amendment Bill 2018, 31 January 2019 4 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) Final Report, Report No 126 (2015), p.218; see also AIATSIS, Submission 36; Law Council of Australia, Submission 35; National Congress of Australia’s First Peoples, Submission 32; Kimberley Land Council, Submission 30; NSW Young Lawyers Human Rights Committee, Submission 29; Central Desert Native Title Services, Submission 26; Queensland South Native Title Services, Submission 24; Goldfields Land and Sea Council, Submission 22; Native Title Services Victoria, Submission 18; North Queensland Land Council, Submission 17; National Native Title Council, Submission 16; Law Society of Western Australia, Submission 9; Cape York Land Council, Submission 7; Just Us Lawyers, Submission 2; Australian Human Rights Commission, Submission No 1 to the Australian Law Reform Commission, Review of the Native Title Act (14 May 2014) 12. 5 Australian Human Rights Commission, Submission to the Attorney-General’s Department Exposure Draft Native Title Legislation Amendment Bill 2018, 31 January 2019, p 20 6 Australian Human Rights Commission, Submission to the Attorney-General’s Department Exposure Draft Native Title Legislation Amendment Bill 2018, 31 January 2019, p 17 7 Following a determination, prescribed bodies corporate (PBCs) are entered onto the National Native Title Register. At this point, the corporation becomes a registered native title body corporate or RNTBC. While the terms PBC and RNTBC are often used interchangeably, the Native Title Act 1993 deals with them separately. While RNTBC is technically the accurate name for these organisations, PBCs is the most commonly used term. 8 National Native Title Council (NNTC) Submission 22, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia. 9 National Native Title Council (NNTC) Submission 22, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia. 10 Cape York Land Council, Submission 16, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia. 11 Cape York Land Council, Submission 16, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia. 12 Torres Strait Regional Authority (TSRA) Submission 9, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia 13 Cape York Land Council, Submission 16, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia. 14 National Native Title Council (NNTC) Submission 22, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia, p 8 15 Yamatji Marla Aboriginal Corporation, Submission 20, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia 16 Kimberley Land Council Submission 21, Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia 17 Social Justice and Native Title Report 2008, Chapter 6: Indigenous Peoples and Water, p 173 18 The Guardian, Its our lifeblood: the Murray-Darling and the first for Indigenous Water rights, Anne Davies, 10 April 2018 19 ABC News, Largest native title claim in NSW acknowledges Barkandji people in state's far west, Jacqueline Breen and Gavin Coote, 16 June 2015 20 The Guardian, Its our lifeblood: the Murray-Darling and the first for Indigenous Water rights, Anne Davies, 10 April 2018

21 The Guardian, Murray-Darling: when the river runs dry, Anne Davies, Mike Bowers, Andy Ball and Nick Evershed, April 2018 22 The Guardian, Murray-Darling: when the river runs dry, Anne Davies, Mike Bowers, Andy Ball and Nick Evershed, April 2018 23 The Guardian, Murray-Darling: when the river runs dry, Anne Davies, Mike Bowers, Andy Ball and Nick Evershed, April 2018 24 The Guardian, Its our lifeblood: the Murray-Darling and the first for Indigenous Water rights, Anne Davies, 10 April 2018 25 Murray Lower Darling Rivers Indigenous Nations (MLDRIN) Echuca Declaration, Cultural Flows, 2007 26 The Guardian, Its our lifeblood: the Murray-Darling and the first for Indigenous Water rights, Anne Davies, 10 April 2018 27 Australian Trade Commission, 2014, Northern Australia / Emerging opportunities in an advanced economy, p 18 28 Social Justice and Native Title Report 2008, Chapter 6: Indigenous Peoples and Water, p 173 29 Social Justice and Native Title Report 2008, Chapter 6: Indigenous Peoples and Water, p 173 30 Social Justice and Native Title Report 2008, Chapter 6: Indigenous Peoples and Water, p 171 31 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/Res/61/295 (13 September 2007), arts 10, 11, 19, 28, 29 and 32. 32 Human Rights Council, Progress Report on the study on indigenous peoples and right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, para 34. 33 Australian Human Rights Commission, Study on free, prior and informed consent: Australian Human Rights Commission Submission to the Expert Mechanism on the Rights of Indigenous Peoples (12 March 2018) 34 United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), Art 32.