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.