native title honours degree research paper

NATIVE TITLEA

REFLECTION ON AN INFERIOR PROPOSITION

‘Native Title as opposed to the preferential Land Rights’

By

Shane Andrew Hughes

HONOURS DEGREE RESEARCH PAPER

‘Prior to commencement, I would like to acknowledge and pay respect to the traditional owners of this land, specifically, the Larrakia and Gadigal people of the Dharug and Eora Nation’

‘As we share our own knowledge, teaching, learning and research practices within our respected institutions may we also pay respect

to the knowledge embedded forever within the Aboriginal Custodianship of Country’

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TABLE OF CONTENTSINTRODUCTION

CURSER TO NATIVE TITLE – MABO’S POSTHUMOUS VICTORY

NATIVE TITLE LEGISLATION:

ISSUES AND PROBLEMS FACING CLAIMANTS

Financial Issues

Native Title and the Resources Sector

SUPPLEMENTARY NATIVE TITLE JUDGEMENTS

NATIVE TITLE AMENDMENT ACT 1998

POST NATIVE TITLE, THE FIRST TEN YEARS

NATIVE TITLE AMENDMENTS ACT 2007

UNITED NATIONS REPORT ON HUMAN RIGHTS AND FUNDEMENTAL

FREEDOMS OF INDIGENOUS PEOPLES

NATIVE TITLE AMENDMENTS ACT 2009

Developments Post 2009 Reforms

POST NATIVE TITLE: TWENTY YEARS ON

Auxiliary Native Title Report

Native Title Organisations Review

ALRC Native Title Inquiry

AUSTRALIAN LAW REFORM COMMISSION; REPORT 126 ....................................31

CONCLUSION

BIBLIOGRAPHY

I INTRODUCTION

Indigenous Australians for two hundred years have told the painful stories of their ancestors, the

overall concept of which are one of ‘dispossession, and cultural dislocation’ extending from the

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notorious doctrine of terra nullius. The ‘dispossession, and cultural dislocation’ was dealt additional

demoralizing blow following, Justice Blackburn’s ruling in Milirrpum v Nabalco Pty.Ltd 1 (Gove

Land Rights Case), further exacerbated by an unsuccessful land rights challenge in 1979. 2 Evidently,

the tumultuous history of Australia’s indigenous population is well documented; it has been riddled

with controversy to say the least. 3 In particular, that of Native Title which has been at the forefront of

contention and debate for the past several decades. In Coe v Commonwealth it was delineated that ‘the

question [as to] what rights the aboriginal people of this country have, or ought to have, in the lands of

Australia is one which has become a matter of heated controversy’.4

Prior to this ruling, Xavier Herbert, 5 a champion of Aboriginal peoples expressed his view on this

very issue when he passionately stated that;

“until we give to the black man just a bit of land that was his and give it back without provisos,

without strings to snatch it back, without anything but complete generosity of spirit in concession for

the evil we have done him, until we do that, we shall remain what we have always been so far, a

community of thieves”. 6

In fact it was not Native Title, but, land rights that were being advocated for by Australia’s indigenous

population. The difference being that; ‘Native title involves the recognition of pre-existing rights and

interests of Aboriginal people and Torres Strait Islanders in relation to land and water’ 7 as opposed to

land rights which centre around the ‘grant[ing] of interests in land under various legislation’, 8

differences between these and evidently areas subject to contention relate to, areas that maybe

claimed, parties that can make a claim and the overall claim process.

This paper will chronologically chart the history of the progression or in-deed regression of native title

and attempt to shed some light on the historically contentious issues surrounding native title.

Evidently, such issues are often considered with reference to the official Government policy at the

1 Milirrpum v Nabalco Pty.Ltd (1971) 17 FLR 14.2 Coe v Commonwealth [1979] HCA 68.3 ‘Indigenous issues are often considered with reference to the official Government policy at the time. In

chronological order, these are: Protection/paternalism Stolen Generations Assimilation Integration Self-determination Reconciliation The Northern Territory Intervention Closing the Gap’

Source; MABO; <http://www.abc.net.au/tv/mabo/pdf/Mabo_History_TeacherNotes.pdf>4 Coe v Commonwealth [1979] HCA 68 at 21.5 Xavier Herbert, Author of the Miles Franklin award winning novel ‘Poor Fellow my Country’ (1970) and

champion of Aboriginal Peoples, particularly, in Queensland and the Northern Territory.6 Creative Spirits, Aboriginal culture – Article by; Jens Korff, Land-Native title issues & problems, Last updated

27 August 2015 quoting; Xavier Herbert.7 National Native Title Tribunal – Native Title Facts, ‘What’s the Difference between Native Title and Land

Rights?’8 Ibid.

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time. In chronological order, these are: Protection/paternalism, Stolen Generations,

Assimilation/Integration, Self-determination, Reconciliation and The Northern Territory Intervention

and Closing the Gap. 9 However, the focus of such will extend from Mabo, the enactment of Native

title legislation, the progression of the Act relating to reforms over the subsequent two decades, in

addition to the current position and the recommendations detailed in a report by the Australian Law

Reform Commission published 4 June 2015 entitled; Connection to Country: Review of the Native

Title Act 1993 (Cth).

II. PRECURSER TO NATIVE TITLE – MABO’S POSTHUMOUS VICTORY

The legacy of Eddie Mabo’s herculean task had changed the status quo of the Australian judicial and

legislative landscape, and altered the general concepts of Australian land law by compelling the Courts

to overturn the doctrine of terra nullius, which formed the basis to ‘claims to possession of Australia’

by the British and replacing it with the more palatable doctrine (for some) of Native Title into

Australian law. Mabo was not the first case that was brought before the courts with respect to land

rights, in-fact proceedings were lodged in 1979 by then Barrister Paul Coe, and was depicted as an ‘ill-

fated case’. He brought a claim against the Commonwealth for land rights on behalf of the Wiradjuri

nation. 10

Subsequently, on 20 May, 1982, initial legal action for ownership was brought against the State of

Queensland by Eddie ‘Koiki’ Mabo, Sam and David Passi, Celuia Mapo and James Rice in the

original jurisdiction of the High Court. Mabo v Queensland (No1) 11 was a significant case determined

on 8 December, 1988 and was a necessary precursor to Mabo and Others v Queensland (No2). 12 After

the claim was lodged an attempt was made to ‘retrospectively abolish native title rights’ pursuant to

the enactment of the Queensland Coast Islands Declaratory Act 1985 (QCID Act), where it was

declared that ‘any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879

9 MABO, above n 3.10 Coe v Commonwealth [1979] HCA 68; the Wiradjuri nation, is a section of land which extends south from

Nyngan, central NSW through to the Blue Mountains surrounding Sydney. ‘The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimant will be best served if their claims are put before the court dispassionately, lucidly and proper form’, Chief Justice Gibbs at 21.

11 (1988) 166 CLR 186.12 [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3June 1992).

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is hereby extinguished without compensation’. 13 This was found to be invalid and inconsistent with

respect to s10 of the Racial Discrimination Act 1975. 14 The plaintiffs had also argued successfully

that these, were human rights protected by Article 5 of the International Convention on the

Elimination of All Forms of Racial Discrimination.

All in all it took Eddie Mabo and Others, ten tortuous years of litigation, then on 3 June, 1992 the

High Court finally delivered it’s judgment, consequently, replacing the ‘legal fiction’ of terra nullius,

‘recognizing that the Meriam People of the Murray Islands in the Torres Strait held native title rights

and interests over part of their traditional lands’, 15 dependent upon the local laws and customs.

A Native Title – Pre-requisite

Under the Native Title Act claims may only be made with respect to Crown land designated,

‘unallocated or vacant’ and pursuant to claimants providing evidence that there has been ‘a continuity

of traditional laws and customs on the land being claimed since European settlement’16, invariably, an

arduous process involving extensive historical research in addition to evidence adduced from living

parties, and even if claimants are successful, this did not necessarily provide exclusive rights to the

land. In many cases lengthy processes 17 involving indigenous elders who had initiated native title

claims have not ‘lived long enough to see them resolved’. 18 Additionally, many of the benefits of a

successful claim had not been appropriately distributed to the communities that required them the

most. 19

13 Mabo v Queensland - Overturning the Doctrine Of Terra Nullius: The Mabo Case, AIATSIS NTRU 1-2. <http://aiatsis.gov.au/sites/default/files/docs/research-and-guides/native-title-research/overturning-doctrine-terra%20nullius-the-mabo-case.pdf>

14 The Racial Discrimination Act 1975 ‘requires fair and just compensation to be paid for loss of native title after 1975’, moreover the plaintiffs argued that the Queensland Act ‘denied them equality before the law and the enjoyment of their right to own property and arbitrarily deprived them of their property’.

15 above n 11.16 see; the 1998 Federal Court ruling determined that the ‘Yorta Yorta people from North Central Victoria and

Southern New South Wales traditions and customs had been washed away by what a judge termed the “tide of history”.

17 Case on point; the Wik peoples decision in 1996, to the claim of the Bandjalang people on the New South Wales north coast, which took 17 years to resolve.

18 Mabo (No1), above n 11.19 Ibid.

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Sadly, this ‘landmark decision’ 20 (the Mabo decision) came four and a half months after Eddie Mabo

and three other plaintiff’s had passed away. 21 Prior to this decision the general legal position was that

‘the Crown acquired sovereignty over land in Australia’. In Wik Peoples v Queensland 22 (the Wik

decision) Justice Kirby stated that; ‘the foundation of land law in Australia was as simple as it was

clear from the moment that the lands of Australia were successively annexed to the Crown, they

became “in law the property of the King of England”.’23

Failure to recognize Aboriginal Land Rights under Common Law was also emphasized in the 1971

landmark case, Milirrpum v Nabalco 24 (Gove Land Rights Case), where Justice Blackburn held; that

the doctrine of communal native title did not form and had never formed part of the law of any part of

Australia. 25 It was determined by his honor that although the plaintiffs had a ‘subtle and elaborate’

system of law, highly adapted to their country, 26 and links to identifiable tracts of land, those links

were first and foremost of a spiritual relationship. His honor also proposed that they had, ‘a more

cogent feeling of obligation to the land than of ownership to it’, it was further indicated that ‘the clan

belongs to the land [rather] than the land belong[ing] to the clan’ 27 that is, they did not ‘own’ the land

in property terms. 28

These judgments were held to be erroneous at law, and consequently, overturned two decades later in

the abovementioned Mabo decision. Although, belatedly in Australia pursuant to the Mabo decision,

this accepted inherent right to land was equivalent to that acknowledged in the United States, New

Zealand and Canada, additionally, various states had also ‘implicitly recognised indigenous peoples

rights over traditional lands’ where ‘native title’ on the other hand was viewed as dissimilar in nature. 29 Ultimately, the ‘Court held that native title was a pre-existing right that survived the assertion of 20 Mabo (No2) above n 12. .21 Eddie Mabo died in a Brisbane hospital on 21 January 1992 from cancer. An account of his life can be found in

Noel Loos and Koiki Mabo, Edward Koiki Mabo: His Life and Struggle for Land Rights (1996). See; Graeme Neate, President; National Native Title Tribunal - Native Title Ten Years On: Getting on with the job or sitting on the fence – Paper delivered to Native Title Update Forum National Farmers’ Federation Carnarvon, Western Australia 21 May 2002, Fn 36, 10.

22 Wik Peoples v Queensland (1996) 141 ALR 129. ‘Here it was found that the grants of two Queensland pastoral leases did not necessarily extinguish native title, and that native title may coexist with the rights of some pastoral leaseholders’.

23 Ibid, at 249.24 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.25 Graeme Neate, Native Title Ten Years On: Getting on with the job or sitting on the fence – Paper delivered to

Native Title Update Forum National Farmers’ Federation Carnarvon, Western Australia 21 May 2002, citing; footnote 23; see also; Milirrpum v Nabalco at 267, 8.

26 Ibid, Fn; 23, 8. 27 Milirrpum v Nabalco at 270-1, above n 24, Fn; 24, 8. 28 Native Title Ten Years On, above n 25, 8 [4].29 Larissa Behrendt, Lisa Strelein ‘Old Habits Die Hard: Indigenous Land Rights and Mining in Australia -Land

Resources, and Environment (Spring 2001Australia) Australia Mining Indigenous Lands Australia

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sovereignty by the British Crown and did not depend upon recognition or a grant from the state’.30 In

a majority of 6:1 the Court consequently agreed in that, ‘the common law of this country recognises a

form of native title which, in the cases where it has not been extinguished, reflects the entitlement of

the indigenous inhabitants, in accordance with their laws and customs’.31

Peter Poynton, succinctly summarised these cases in one paragraph when he stated;

It is anomalous, but in theory native title may have existed over much of the continent and may have

required large compensation payments for its extinction. However, the High Court magically

extinguished it, where land has been freehold, leased or used for some government purpose, by a vote

of four to three, at the same time as they recognised its existence, six to one.32

Others had also expressed their discontent and scepticism as to whether Mabo and subsequent

legislation had met the expectations of concerned parties. It has been expressed that;

‘…the Court did not overturn anything of substance, but merely propounded white domination and

superiority over Aborigines by recognizing such a meager Aboriginal form of rights over land. The

judges did little more than ease their own conscience of the guilt they so correctly feel for maintaining

white supremacy’. 33

Additionally, in an interview, Glen Kelly 34 had criticised the ‘... content of the Native Title Act, Native

Title law and Native Title rights themselves’, and that legislation is ‘divisive within indigenous

communities because it’s often misunderstood’ 35 perpetuated by a heightened sense of ‘trepidation

and apprehension’ primarily based on a lack of knowledge and understanding of the Native Title Act.

This was also an issue on the other side of the fence, as scare mongering was rife within the white

communities, there was a strong belief that land rights if given to the Aboriginal people would be able

to claim people’s gardens as sacred sites overnight. Or that they would be evicted from their

30 Ibid.31 Mabo v Queensland (No2) (1992) 175 CLR 1 at 15.32 Peter Poynton, Mabo: now you see it, now you don’t!, Race&Class 35:4, (1994), 44.33 Gary Foley, The Road to Native Title: ‘The Aboriginal Rights Movement and the Australian Labor Party 1973-

1996’, quoted in; Michael Mansell, ‘The Mabo Case: The Court gives an inch but takes a mile’, APG Papers, Aboriginal Provisional Government, Vol 1 July 1992, Fn; 41.

34 Glen Kelly, CEO South West Aboriginal Land and Sea Council Western Australia.35 Darren Mara, ‘The Native Title Act, 20 years on’ – SBS podcasts 28 February 2014 Darren Mara engages in a

discussion with Indigenous representatives, academics and a representative from the Minerals Council of Australia about the effectiveness of the Native Title Act 1993 (Cth).

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properties. This of course wasn’t the case. Land rights legislation when passed by the various States at

the time came with the proviso that the land be unoccupied and didn’t include urban areas. However,

this did not prevent white anti-land rights supporters from attempting to instil fear within the minds of

some in order to gather support to oppose the move. Following this landmark decision the Keating

labour government introduced a landmark piece of legislation entitled, the Native Title Act

1993(NTA).36

Subsequently, Glen Kelly summed the Act up by stating that; ‘it’s a white fella legal construct and

what it is actually designed to do, in my view, is not to enliven traditional law and custom but to

control traditional law and custom’. 37 The validity and strength of these statements will be analysed

further along in this paper. Furthermore the following will discuss what occurred following this

decision and enactment of the NTA.

III. NATIVE TITLE LEGISLATION: ISSUES AND PROBLEMS FACING CLAIMANTS

On preliminary analysis of native title law, one may be correct in assuming that it is in fact achieving

all that it had set out to achieve. However as with most legislation it is not without issues. More

importantly, at the moment there are several documented problems and challenges faced by native title

parties and persons concerned specifically, when looking for solutions to these issues. Some areas that

have been of concern and a catalyst for enactment of the NTA, notwithstanding challenges to its

‘Constitutional validity’ 38 was to provide avenues for resolving recognition concerns through

‘negotiation and mediation’ relating to the ongoing connection indigenous peoples have with their

land. The primary responsibility for the NTA falls on the Attorney-General with the exception of those

parts presided over by the Minister for Aboriginal Affairs. First amended the NTA was quite

comprehensive, 39 the core objectives of which are;

To provide for the recognition and protection of native title, to establish a mechanism for determining

claims to native title, to establish ways in which future dealings affecting native title may proceed, to

set standards for those dealings and to provide for, or permit, the validation of past acts, and

36 The Native Title Act 1993 commenced on 1 January 1994.37 Darren Mara, above n 35.38 The High Court rejected a challenge by Western Australia on ‘constitutional validity’ grounds, the High Court

deciding the ‘race power’ within the constitution (Section 51 (xxvi) could be relied on by the Federal Parliament to support native title legislation. See; Western Australia v Commonwealth (1994-1995) 183 CCLR 373 at 462.

39 The official print of the Native Title Act’ was 477 pages long.

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intermediate period acts, invalidated because of the existence of native title. 40 Creating a framework

with the ultimate goal of providing avenues for indigenous Australians to assert claims over their

‘traditional lands’. Notwithstanding the fact that ‘native title is at the bottom of the hierarchy of

Australian property law. 41 This landmark piece of legislation, notwithstanding the fact that this was

not what was wished-for by Indigenous Australians, set about recognising indigenous rights, with the

view of attempting to make amends to these past transgressions concerning their traditional lands. The

NTA brought about entirely novel theories ‘of land ownership under Australian law’ recognising some

indigenous Australian native title entitlements as a form of ownership. Parties wishing to initiating a

native title claim must establish, ‘... continuity of traditional laws and customs on the land being

claimed since European settlement’42, and similarly ‘an ongoing connection’. 43 These provisos would

be shown to be a significant area of contention and one that has been earmarked for reform by several

advocates and is one of the reform recommendations outlined in the ALRC report.

B Proving Ongoing Connection

These pre-requisites are particularly difficult to prove as, vitiating factors must be taken into account,

such as, widespread urbanisation and agricultural development, and consequently, both of these

examples extinguish native title.

Difficulties in establishing an on-going connection arise from prior conflicts between Indigenous

people and the British, genocide, forced removals, and stolen generations further exacerbating native

title claims. ‘The law requires a high level of evidence of each group’s traditional connection which

need to go back to the date when the Crown asserted sovereignty over Australia’. 44 Requirements, as

would be shown place an unjust level of burden on claimants.

40 Native Title Act 1993 s3.41 Cited in; ‘Mixed results on native title’, Koori Mail 442, 110, quoting; Tom Calma, former Aboriginal and

Torres Strait Islander Social Justice Commissioner.42 Creative Spirits, Aboriginal culture – Article by; Jens Korff, Land-Native title issues & problems, Last updated

27 August 2015.43 ‘A substantial degree of ancestral connection between the original native title holders and present community

would be necessary to enable a group to be identified as on acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty’, Western Australia v Ward (2000) 99 FCR 316; ALR 159 per Beaumont and Von Doussa JJ at [232], North J concurring at [682].

44 Creative Spirit, above n 6, citing; 'Putting native title in context', Koori Mail 428, 22.

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C Lengthy Process

Obstacles in providing this evidence and the provision of supplementary reports is that more often

than not it is relatively expensive and time consuming, as well as the lack of availability of appropriate

expertise required to compile these reports. Reports may take upwards of 3 years to assemble, and a

possible further 3 years to be assessed. The average number of years it takes to finalise native title

claims is 6 years. One example was documented when Aboriginal people lost their ongoing

connection due to the fact, for example when they were evacuated from Darwin during the bombing

by the Japanese in World War II. It appeared that the Courts had not been willing to take into account

mitigating circumstances, and such a break in connection was sufficient to throw the case out.45

Evidently, some Judges have ‘considered that the bar to successful proof of a native title claim is

being placed to high’.46 Others have provided some alternative reasoning on this point, such as, Justice

Robert Finch in 2009 where a proposal was put forward to ‘reverse the burden of proof in the native

title claim system such that all claimants were presumed to have a “continuous existence and vitality

since sovereignty”’. 47

Additionally, Chief Judge, Joe Williams (New Zealand) commenting on native title in Australia took

issue and outlined, the doctrine of surviving title has some deep problems with it. It requires the

Indigenous applicant to prove that colonization did not hurt. The more it hurts, the less you get. The

less it hurts the more you get. There is a deep contradiction in that idea. 48

Former Prime Minister Paul Keating agreed, noting that ‘this onerous burden of proof has placed an

unjust burden on those native title claimants who have suffered the most severe dispossession and

social disruption’. 49 Further support came from almost 200 Non Government Organisations around

Australia, in a major report compiled in 2015 into Australia’s Human Rights also demanding that

‘Australia should reverse the onus of proof for title to lands’. 50 Significant though they maybe, there

45 Ibid, citing, 'Govt urged to amend native title legislation', Koori Mail 450, 10; quoting Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner

46 'Judge says native title bar too high', Koori Mail 523, 37.47 above n 45.48 Creative Spirit, above n 6, citing; 'Focus on change', Koori Mail 428, 13.49 'Keating speaks out again', Koori Mail 503, 16. 50 'Australia's 2nd Universal Periodic Review', Joint NGO Submission on behalf of the Australian NGO Coalition,

March 2015, paragraph 38

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are additional issues concerning, as previously suggested relating to the content of the Native Title Act,

native title law and native title rights themselves.

D Financial Issues

Large proportions of funds payed to Aboriginal groups have been eyed off by many parties, although

not limited to, Aboriginal Council members and a plethora of lawyers and experts all rushing to assist

the native title process. Reports suggest up to 80% of these funds had gone to experts. Case in point,

the historic Yorta Yorta claim where most of the resources were ‘syphoned off by what became the

bourgeoning, native title industry’. 51 Dr Wayne Atkinson stated that, ‘only a small portion of the

substantive funds allocated to assist native title holders in mounting their claims ever got to [them] ...

at least 80% was paid to members of industry’. 52 It had become apparent that the native title

legislation and indeed the processes involved with claims were not sitting well with the indigenous

population, exacerbated by a lack of trust. Michael Anderson relayed these opinions when he said;

‘You know what blackfellas right across this country use Mabo as an acronym for? Money Available,

Barristers Only’ as, they are perceived as the ‘only ones benefitting from the system’. 53

A common misconception by the general public is that Aboriginal people receive exorbitant amounts

of money for doing nothing, purely because companies set up camp on their land. Many involved with

these native title claims believe that those parties who are benefiting from the system may

intentionally be prolonging proceedings rather than seeking timely resolution. 54 From its inception

various amendments have been enacted, 55 and will be discussed, yet still, concerned parties and critics

of the NTA have continuously sought further review and amendment by the Australian Government,

specific to a number of issues. Namely, the fact that numerous claims applications are taking many

years to process, which in affect allows some discerning bureaucrats to come up with some dubious

solutions or initiate supplementary legislation in order to mitigate the number of successful claims,

this assertion was previously illustrated in Mabo (No1). The difficulties of achieving these goals are

exacerbated even further, given that the general consensus is that ‘the most vociferous opponents to

51 Creative Spirit, above n 6, citing; 'Native title gravy train', Koori Mail 484 p.2652 Ibid.53 Ian Lloyd Neubauer ‘Australia’s Aborigines Launch a Bold Legal Push for Independence', Time World, May

30, 2013, 3 [2]. <http://world.time.com/2013/05/30/australias-aborigines-launch-a-bold-legal-push-for-independence/> ; quoting; Michael Anderson, Aboriginal, Aboriginal tent Embassy Ambassador.

54 Creative Spirit, above n 6, citing 'Native title gravy train', Koori Mail 484, 26.55 Amendments of the Native Title Act 1993 were implemented in the form of the; Native Title Amendment Act

1998; Native Title Amendment Act 2007 and the Native Title Amendment Act 2009 respectfully.

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http://world.time.com/2013/05/30/australias-aborigines-launch-a-bold-legal-push-for-independence/

http://world.time.com/2013/05/30/australias-aborigines-launch-a-bold-legal-push-for-independence/


native title are the governments. They’re the ones who in part are responsible for the huge cost of it

because they prolong the litigation’. 56

E Native Title and the Resources Sector

Professor Jon Altman, 57 declared that, ‘historically, the resources’ sector has also been an opponent of

the land rights movement’. 58 He went on further to say; ‘when you look back to the 1960s, mining

occurred on Aboriginal reserves, on Aboriginal land without any consultation or negotiation with

Aboriginal people’. 59 An example of this extends as far back as the 1950’s when Uranium was

discovered in the Northern Territory’s Kakadu National Park, where the Mirrar and other Bininj

people have been custodians for tens of thousands of years. 60 This of course is no longer the case, as

the Native Title Act outlines the legislative requirements to be undertaken between the traditional

owners and resource companies.

That is the right of the traditional owners to negotiate with companies wishing to proceed with

exploration, enter into land use agreements, and discussions relating to pecuniary costs for the right to

prospect. 61 Evidently, the NTA has ultimately assisted in realigning the relationship between

indigenous groups and the resource sector.

Prof. Altman summed up these issues by saying;

‘So what we’ve seen, through what I refer to as a land title revolution that’s come on the back of

land rights in the 1970s and 80s and then Native Title in the 90s and into the 21 st Century, has

fundamentally reset the relationship. But I think again we need to emphasise that relationship is

far from equal. There’s still an asymmetry there that needs to be rectified’. 62

56 Professor, Mick Dobson – Aboriginal Leader, quoted in; 'Dodson in warning on justice', Koori Mail 403, 9.57 Professor, Altman is a land rights and native title expert at the Australian National University.58 'The Native Title Act, 20 years on', above n 34.59 Ibid.60 Larissa Behrendt, above n 29.61 National Native Title Tribunal, Mining Agreements: Content Ideas-Raine Quinn, Research Unit August 2005

Resolution of Native Title Issues over Land and Waters.62 'The Native Title Act, 20 years on', above n 35.

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Additionally, some in the mining sector have acknowledged that the intricacies of the Native Title

system have not been easy to adjust to, and, that there is much more work to be done on that

front.63Melanie Stutsel, a spokeswoman for the Minerals Council of Australia 64 has also recognised

that;

‘...the native Title Act and the Native Title system is one of the most complex legislative

environments in which we work. It’s clearly taken a long time for us to get the system to a point

where industry understands what the expectations are from a regulatory sense, but also in terms

of the partnerships in the community in which it operates’. 65

Interestingly, an independent study found that only about 25% of agreements delivered what was

described as ‘very substantial’ results for Aboriginal people notwithstanding ‘enormous variations’ 66

and around half of the agreements had little to no benefits. It had also been said that all weaker

agreements were negotiated under the NTA and should not have been signed.

The case law below provides an overview of a cross section of these agreement outcomes.

IV. SUPPLEMENTARY NATIVE TITLE JUDGMENTS

Following on from the Mabo decision and the enactment of the Native Title Act 1993 (Cth) (NT Act) 67

clarification of native title claims had been documented in a number of subsequent High Court

decisions. Over the course of the past two decades there has been a plethora of multi-faceted native

title cases, however, for the purposes of this dissertation the following cross section of case law

covering multiple jurisdictions will provide commentary on developments extending from the

enactment of the NTA;

63 There have already been several amendments to the NTA, ‘the most significant being in 1998 under the Howard Government, this was in response to the High Court’s Wik decision, which found that native title could co-exist with certain pastoral leases’.

64 Minerals Council of Australia spokeswoman; Melanie Stutsel.65 'The Native Title Act, 20 years on', above n 35 quoting; Minerals Council of Australia spokeswoman; Melanie

Stutsel.66 Creative Spirit, above n 6, cited in; 'Title war of words', Koori Mail 394, 8.67 The Native Title Act and the National Native Title Tribunal established under ss107-127 commenced operation

on 1 January 1994. The National Native Title Tribunal was established as an independent Commonwealth agency to assist people to resolve native title issues over land and waters. Since this date, the NTA has been amended three times, in 1998, 2007 and again in 2009.

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Firstly, in the Wik Peoples v Queensland 68 case it was ‘found that the grants of two Queensland

pastoral leases did not necessarily extinguish native title, and that native title may coexist with the

rights of some pastoral leaseholders’;

Commonwealth v Yarmirr 69 ‘found that native title could be recognized in the intertidal zone and

offshore but that only non-exclusive native title rights could be recognized in those areas’;

Western Australa v Ward 70 ‘found that native title is made up of a bundle of right and that native title

can be partially extinguished, for example by the grant of a Western Australian pastoral lease’;

Wilson v Anderson 71 ‘found that perpetual pastoral leases granted under the New South Wales Western

Lands Act 1901 (NSW) completely extinguished native title’;

Yorta Yorta Community v Victoria 72 ‘found that in order to maintain native title, the claimant group

must show that they have practiced their laws and customs in substantially the same way since

European settlement – i.e. that they are “traditional”...’ and finally, the case of the;

State of Western Australia v Brown & Ors 73 which, ‘found that the grant of the mineral leases did not

extinguish native title rights and interests and the rights granted under the mineral leases are not

inconsistent with the claimed native title rights and interests’.

The context to which these cases are to be viewed was outlined in the High Court case of Fejo v

Northern Territory where the Court stated; ‘It was accepted that; native title has its origins in the

traditional laws acknowledged and the customs observed by the indigenous who possess the native

title. Native title is neither an institute of the Common Law nor a form of Common law tenure but it is

recognised by the Common law’. 74 Native title claims will turn on the strength of submissions put

forward based on the threshold tests previously mentioned relevant to each individual claim. The

68 (1996) 187 CLR 1; 141 ALR 129.69 [2001] HCA 56.70 [2002] HCA 28.71 [2002] HCA 29.72 [2002] HCA 58.73 [2014] HCA 8.74 Fejo v Northern Territory (1998) 195 CLR 96 at 46.

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Courts are then left to determine these claims pursuant to the relevant legislative interpretation.

Evidently all case will be subjected to these exhaustive, frustrating and contentious processes.

However, even though all of these processes have been complied with does not ensure a favourable

decision. There have been cases where courts have denied recognition of native title while

acknowledging at the same time that the persons presenting to the court are the same persons that

owned the land at the time of colonisation. 75 On the other hand, an additional problem arose even

when a ‘connection’ and ‘ongoing traditions’ required to make a claim had been established it was

found that the land is typically of little to no commercial value due to its remoteness, requiring land

owners to relinquish viable work opportunities placing Aboriginal land holders at a geographical

disadvantage. 76 Pursuant to native title, land rights claims and case law, the Government felt that

changes were required to address identified issues. Subsequently, the Australian Parliament proceeded

to address these issues by way of amending the Native Title Act.

V. NATIVE TITLE AMENDMENTS ACT 1998

The Senate, following a record hundred hours of debate passed the Federal Governments Native Title

(Amendment) Act, also referred to as the ‘10 point Plan’, invariably the new legislation makes it more

difficult for Indigenous Australian to make claims relevant to native title.

These amendments were introduced by the Howard Government. 77 These extensive amendments

included the ‘introduction of a registration test for native title claimant applications, changes to the

future act scheme, a new scheme for indigenous land use agreements, and a requirement for new

native title applications to be filed in the Federal Court and every current application to become a

proceeding in the Court’. 78

The new Government immediately responded to the concerns of mining and pastoral interest groups

by developing a ‘Ten Point Plan’ to amend the Native Title Act.The plan was promoted as a clear and

simple solution to problems faced by industry because of native title. However, it found the task more

75 Creative Spirit, above n 6, cited in; Koori Mail 442 ‘Now might be the time for native title’, 22.76 Ibid.77 Native Title Amendments Act 1998, Act No. 97 of 1998 as made; An Act to amend the Native Title Act 1993,

and for related purposes – Date of Assent 27 July 1998. <https://www.comlaw.gov.au/Details/C2004A00354>78 SBS. Timeline: Native Title in Australia, Updated 26 February 2015

<http://www.sbs.com.au/news/article/2012/06/03/timeline-native-title-australia>

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http://www.sbs.com.au/news/article/2012/06/03/timeline-native-title-australia

https://www.comlaw.gov.au/Details/C2004A00354


difficult and complex than if first imagined. Overall, the ’10 Point Plan’ was opposed by both,

indigenous peoples and their supporters, the plan was also criticised by most farmers and pastoralists

in particular, who demanded that all native title be extinguished.79

Key elements of the plan included;

Validation of Acts/grants between 1/1/94 and 23/12/96;

Confirmation of extinguishment of native title on 'exclusive' tenures;

Provision of government services;

Native title and pastoral leases;

Statutory access rights;

Future mining activity;

Future government and commercial development;

Management of water resources and airspace;

Management of claims, and Agreements. 80

Moreover, further, ‘measures would be introduced to facilitate the negotiation of voluntary but binding

agreements as alternative to formal native title machinery’. 81 The Act places additional restrictions on

native title claims; its objective is to streamline the claims system and provided security of tenure to

non-indigenous holders of pastoral leases and other land title, where that land might potentially be

claimed under the Native Title Act 1993. Additionally, these amendments significantly wound back the

rights of native title holders and subsequently overruled much of the existing protections native title

holders under the Racial Discrimination Act, and cannot be challenged on grounds of inconsistency

with the Act’. 82 The National Native Title Tribunal provided a framework for future dealings affecting

native title as claimants had been given the procedural ‘right to negotiate’ with respect to future uses

of land subject to native title. 83 ‘Some of the changes involve, weakening the right to negotiate,

confirming and validating the extinguishment of native title on a range of leases, limiting native title

holders access to pastoral leases and increasing the difficulty of native title claims’. 84

79 Mabo: The Native Title Revolution, The ‘10 point plan’ <http://www.nfsa.gov.au/digitallearning/mabo/nt_16.shtml>

80 Lisa Strelein, Mabo: The Native Title Revolution, Text of the ‘10 point plan’ (as amended) <http://www.nfsa.gov.au/digitallearning/mabo/info/textOfThe10PointPlan.htm>

81 Ibid.82 Native Title Act 1993, Fact Sheet – <http://www.racismnoway.com.au/teaching-resources/factsheets/20.html>83 Ibid.84 Ibid.

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http://www.racismnoway.com.au/teaching-resources/factsheets/20.html

http://www.nfsa.gov.au/digitallearning/mabo/info/textOfThe10PointPlan.htm

http://www.nfsa.gov.au/digitallearning/mabo/nt_16.shtml


On a more positive note there has been amendments relating to the capacity to make ‘indigenous land

use agreements’ as an alternative to settling claims through formal determination procedures. Many of

these issues have been discussed in the Special Rapportuers report, where the United Nations

International Committee on the Elimination of Racial Discrimination treaty had found and deemed the

amendments in the 1998 Act ‘discriminatory as they prefer the rights of non- indigenous title holders’. 85

A detailed analysis of the UN’s report is discussed further along in this paper. On the discriminatory

issue, Wadjularbinna Nullyarimma, a Gungalidda Elder reiterated that ‘the native title system is so

racist it has been condemned three times by the united nation[s], because it places white interests in

land over those of traditional owners’. 86

On the other hand Noel Pearson attempted to, without taking anything away from indigenous

Australians, bring into context what Mabo in reality achieved when he said; ‘[t]he truth is that the

Mabo decision ... was the minimum that could have been given with any decency. Far from giving

Aborigines greater rights than other people, it has left them with less’. 87 A detailed analysis of these

ongoing issues will be provided in this submission, beginning with unpacking the pro’s and con’s

native title reform 10 years from conception.

VI. POST NATIVE TITLE, THE FIRST TEN YEARS

Over the past 10 years there has been upwards of 200 native title claims approved covering 1.3 million

sq km of land, which equates to almost 18% of Australia. Nevertheless ‘the system has received mixed

reviews, with claimants bemoaning its voluminous red tape and perpetual delays’. 88 The following

summarises the developments over the preceding decade extending from the Mabo decision and the

enactment of the NTA;

Laws and Courts which encourage native title holders (or native title groups) and

people affected by native title to try and resolve native title and associated issues by

agreement;

85 James Anaya, ‘Report of the Special Rapporteur on the situation of human rights of fundamental freedoms of indigenous people’ (UN Doc A/HRC/15 4 March 2010).

86 ‘Taking our ‘rightful place’ statement by Wadjularbinna Nullyarimma, 8/01/2002’ Source; <http://www.creativespirits.info/aboriginalculture/land/native-title#ixzz3o2JeTmKx>

87 Noel Pearson, article; ‘204 Years of Invisible Title’ [Mabo: A Judicial Revolution].88 Lloyd Neubauer, above n 53.

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Procedures are in place which provide for the orderly resolution of native title claimant

applications around the country;

There are also procedures to enable future acts of various types (including exploration

and mining and the provision of infrastructure) to occur where native title exists;

there is scope to negotiate special forms of indigenous land use agreements which can

resolve a wide range of native title issues;

there are dozens of decisions that native title exists and thousands of agreements about

exploration, mining and other issues, and;

There is widespread acceptance that native title is here to stay, and a much more

positive environment for the resolution of most native title issues by agreement – rather

than resorting to courts or other arbitral bodies. 89

Evidently, every one of these points can be illustrated from the events that have unfolded over the

subsequent decade. A standout was a documented trend toward native title applicants and other parties

resolving claims issues by agreement as opposed to time consuming and costly litigation. Noteworthy,

is some of these ‘outcomes and benefits’ that have been documented throughout the first decade

following the Mabo decision and the date of assent of the Native Title Act, include although not

limited to;

‘30 determinations that native title exist[s] … 45 registered indigenous land use agreements and

hundreds of other agreements that have resolved a wide variety of native title issues [in addition

to] an improved environment for agreement making using processes under the Native Title Act’. 90

Evidently, we can monitor how far we have come and indeed what has been accomplished in the

decade since the Mabo decision by tracking subsequent decisions by the courts and amendments to

legislation. 91 Additionally, monitoring views and apparent shifts in attitudes toward native title can be

a key indicator as to how far we have evolved as a community. The general consensus within the

community is that most people accept and recognize that native title as it has been acknowledged by

the High Court of Australia and by the Commonwealth that it is here to stay. Moreover, it is now well

understood that just because native title has been recognized does not mean that this diminishes any

legal rights they have, will not be lost with respect to land and waters. 92

89 Native Title Ten Years On, above n 25, 19 [4].90 Ibid, 28 [2].91 Ibid, 17 [3]. 92 Ibid, 17 [4-5].

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The quantity and diversity of documented agreements to date is sufficient evidence that amicable

agreements can be met and similarly native title issues can be resolved by agreement as opposed to

taking matters to be heard by the courts or arbitral bodies. This of course has not always been the case.

Previously the general consensus was one of ignorance and misunderstanding with respect to native

title concepts. Whereas some Indigenous parties to native title claims were hopeful and of the belief

that ‘native title would deliver more than it could’, on the other hand some were of the ‘view that

native title could be ignored or that the implications of the High Court’s decision in Mabo could be

removed by the stroke of a legislators pen with no other legal consequences’. 93

An influx of native title cases, has raised other issues of concern, some of which given inherent

intricacies are inclined to take several years to be resolved by the courts as opposed to negotiation,

prompting critics to appeal to the Australian government to review and amend the Act. Such

amendments came by way of the 2007 Native Title Amendments Act.

VII. NATIVE TITLE AMENDMENTS ACT 2007

As previously stated, given the volume of native title claims the Howard government was compelled

to amend the Native Title Act, hence, the Native Title Amendments Act 2007 and the Native Title

Amendments (Technical Amendments) Act 2007 which came into force in April and September 2007.

Encompassing a gamut of coordinated and technical measures for the primary purpose of improving

the system, aimed at making the claim process more efficient and to expedite the determination as to

whether native title existed on the 580 registered claims that had not yet been determined.

Additionally, ‘to expand the tribunal’s powers and functions in relation to mediation and to make it

clear that the Court could not mediate while an application was with the Tribunal for mediation’. 94

“The amendments confer greater discretion concerning the choice and operation of native title

representative bodies on the executive government, which in turn adds to the uncertainty of and

pressure on their relationships with native title groups. Increased accountability demands on native

title representative bodies come amidst calls for increases in their funding levels, which have

remained static for many years. The amendments also signal a major shift in the balance in the roles

93 Ibid94 Native Title ’20 Years On’ above n 35.

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of the National Native Title Tribunal and the Court, especially in respect of mediation, but also, to an

extent, in the Court’s litigation role.

The Court’s role in working with the Tribunal and in scrutinising the exercise of Government powers

is diminished. The Tribunal is to play a far greater role in mediation, with new powers to assist that

function. These trends may damage the enjoyment of procedural fairness by all parties, but in

particular Indigenous Australians, who have historically suffered difficulties in achieving just

recognition of their laws, customs and rights”. 95

Consultation and public discussion has been of concern during the reform process leading to

enactment of native title legislation. Effective consultation is critical when proposing to implement

reforms with respect to amending this legislation. Regret has been expressed by some parties,

suggesting that requests for more in-depth consultation had gone unheeded. The native title system

encompasses some of the longest litigation matters within the Australian legal system, compounded by

undeniable complexities. An already difficult system can be made more cumbersome by the conduct

of concerned parties, onerous requirements and insufficient resources. 96 The amendments have

addressed these issues to a certain extent however, more could be done. ‘Native title can be used as a

tool for recognition of indigenous peoples inherent right to land, as leverage to bring about the

resolution of past injustices, and allow native title holders and applicants to engage in economic

development’. 97

Critically, much more attention is required for more inventive and good faith efforts in order to propel

matters to their earliest, equitable and just resolution. These proposals and the just administration of

native title system more than ever will continue to rely on a sense of fairness and decisions of

individuals within it. So therefore continual improvement of these systems encourage all involved to

exercise that sense of fairness and justice at every stage of the process the promise of native title may

not prove to be so elusive’. 98 At this stage it is important to analyse as previously suggested the views

of a non biased entity, namely special rapportuer to the United Nations, James Anaya.

VIII. UNITED NATIONS REPORT ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

OF INDIGENOUS PEOPLES

95 Angus Frith, The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments Or Disturbing The Balance Of Rights? Native Title Research Monograph No.3 2008 AIATSIS, Abstract, iii.

96 Ibid.97 Ibid.98 Ibid, at 124-125.

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Between 17 and 28 August 2009 Special Rapporteur, James Anaya, tendered a report; based on

exchanges of information with the Government, indigenous peoples, and other interested parties,

specific to human rights and fundamental freedoms of indigenous peoples in Australia. As it will be

shown the report reiterates recommendations that have supposedly been address following the Mabo

decision and the enactment of the NTA. Suggesting that all that had purported to be implemented has

not achieved the desired outcomes.

The only conclusion that can be gleaned from this report and its recommendation is that, someone has

been dragging there feet given that 16 years have elapsed from the enactment of the NTA to the date

of this report. Exacerbated through failed policy, overcoming significant thresholds in having to prove

ongoing connection, numerous native title groups, lengthy process, financial issues, biased arbitration

process, no veto rights, compulsory acquisition and excessive red tap. As evidenced, the catalyst for

significant change emanated from a progressive loss of control of indigenous Australians over their

rights to control and access, traditional lands and resources.

As stated in the preamble to the Native Title Act 1993, indigenous peoples’

‘... have been progressively dispossessed of their lands. This dispossession occurred largely without

compensation, and successive governments have failed to reach a lasting and equitable agreement

with Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged

in Australian society’. 99

In this report the Social Justice Commissioner emphasised the importance of securing indigenous land

rights stating that they are; ‘... important for the advancement of reconciliation between Australia’s

past and present, and between Indigenous and non-Indigenous’. 100 In particular, and relevant to this

paper it outlined that additional efforts are required to ‘secure indigenous peoples rights over lands,

resources and heritage sites, and to ensure that indigenous peoples living in remote areas can enjoy the

same social economic rights as other segments of the Australian population, without having to

sacrifice important aspects of their cultures and ways of life’. 101 It may be viewed that the

Government has fulfilled its obligations to indigenous Australian through appropriate policy and

legislative regimes. For example, extending all the way back to 1976 and the enactment of the

Aboriginal Land Rights Act (ALRA). Although the Act provided for ownership of land based on

99 James Anaya, ‘Report of the Special Rapporteur on the situation of human rights of fundamental freedoms of indigenous people’ (UN Doc A/HRC/15 4 March 2010) 11 [20], Part IV Lands and Natural Resources.

100 Ibid at 21, citing; Australian Human Rights Commission, Native Title Report 2007, 3, Fn: 8101 Ibid, 3 [1].

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traditional connection and that in excess of 50% of land in the N.T had been returned to indigenous

Australians, during his visit the special rapporteur heard numerous concerns relating to the

amendments in 2006, which ‘increased individualisation of communally held indigenous lands and

impaired traditional decisions making indigenous lands, in addition to several others concerns’. 102

New South Wales and South Australia also enacted legislation at state level, however ‘an effort by the

Commonwealth Government to establish National land rights legislation was withdrawn in 1985’,

resulting in ‘the return of lands through legislative enactments has not been achieved throughout the

country’. 103 It may appear that the scope, object and purpose of some policy and legislative regimes

incorporates a two step forward, one step back approach.

The report commended the landmark decision of Mabo which abandoned the ‘discriminatory doctrine

of terra nullius’ and Common law recognition of although not limited to ‘continuing title held by

indigenous peoples to their traditional lands in accordance with their traditional laws and customs’. 104

This prompted the enactment of the Native Title Act of 1993, despite significant developments. These

laws, policies of successive Governments in addition to court decisions appeared to have ‘roll[ed]

back the advantages associated with the Mabo decision, especially the controversial Native Title

Amendments Act of 1998, which was the subject of criticism by the United Nations Committee on the

Elimination of Racial Discrimination (CERD)’. 105

Further information was received by the Special Rapporteur that there are serious limitation within the

current legislation framework, that impair its ability to protect native title rights, the process is

complex and slow according to the Government’s own evaluation and is in need of reform. 106

‘principle concern is the onerous requirement that indigenous claimants show proof of continuous

connection to the lands claimed, in accordance with their traditional laws and customs...viewed as an

102 Ibid at 22.103 Ibid, at 23.104 Ibid, at 24.105 Ibid, at 25, citing; United Nations Committee on the Elimination of Racial Discrimination, see;

CERD/C/AUS/CO//14 (2005).Fn 9.106 Ibid, at 26.

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unjust requirement, particularly considering the history of policies of governments that undermined

indigenous peoples connections to their lands’. 107

In addition, as informed by observers, native title processes and mechanisms for facilitating

indigenous representation in the claims processes are under-supported. 108 Relevant to mining and

resources exploitation on lands subject to native title claims notwithstanding the processes in place,

concerns have been conveyed to the Special Rapportuer. Namely, that indigenous rights are often

inadvertently undermined because the terms of such agreements are kept secret, limits on time to

negotiate, inadequate legal representation and surprise, surprise government involvement does not

always align with indigenous interests.

And more importantly these agreements have not been developed in ways that maximise benefits for

the future generations of the indigenous peoples. 109 Also highlighted was CERD’s recommendation in

the report, that Australia pursue ‘discussions with indigenous peoples with a view to discussing

possible amendments to the Native Title Act and [to find] solutions acceptable to all’ 110 in addition to

strengthening and alignment of legislative and Administrative protections applicable to International

standards in particular, those articulated in the United Nations Declarations on the Rights of

Indigenous Peoples. 111

Contrary, to the doctrine of extinguishment, the Declaration (art. 28) affirms that;

‘indigenous people have the right to redress, by means that can include restitution or, when this is not

possible, just, fair and equitable compensation, for the lands, territories and resources which they have

traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied,

used or damaged without their free, prior and informed consent’. 112

107 Ibid.108 Ibid109 Ibid at 27110 Ibid at 28, citing; United Nations Committee on the Elimination of Racial Discrimination, see;

CERD/C/AUS/CO//14 (2005), para 16.111 Ibid at 29.112 Ibid, quoting; Sawhoamaxa, Inter-Am. Ct. H.R. (Ser.C) No. 146 (2006), at para. 128 (applying these principles

within the framework of the Inter-American Convention on Human Rights).

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This raised concerns regarding difficulties providing indigenous peoples compensation relating to

extinguished rights under the current statutory scheme, 113 and to ensure that these rights are not

unduly affected by further government regulations. The shortfalls of the government thus far may very

well be attributed to the fact that they are waiting for a generation of indigenous claimants to be,

washed away by the tide of history. On the back of preceding amendments and the Special

Rapportuers report. Moving on, additional amendments were put forward and passed by way of the

Native Title Amendments Act 2009.

IX. NATIVE TITLE AMENDMENTS ACT 2009

The Native Title Act 1993 was amended by the Rudd Government. The amendment Act was passed by

the Australia Parliament on 14 September 2009 and received assent 17 September 2009. 114 The

majority of the provisions in the Act came into force on 18 September, 2009. The general purpose of

amendment was to implement institutional reform by giving the Federal government the central role in

managing native title claims. Other measures were to assist in achieving quicker and more flexible

settlements of claims. The key objective of these reforms set out to improve both the operations of

native title systems and outcomes that parties can achieve in the system. 115

The reforms permit, ‘the court to determine whether the court, the National Native Title Tribunal

(NNTT), or another individual or body, should mediate a claim’. 116 Contained within the Act are

supplementary reforms which aim to simplify the system enabling it to work more efficiently and to

encourage agreement-making. 117 One improvement permits the court to ‘rely on an agreed statement

of facts between the key parties…designed to simplify connection processes in consent

determinations’, 118 this of course is at the discretion of the courts as to whether to allow the statement.

113 Ibid at 29, citing; Australian Human Rights Commission, Native Title Report 2007, 7.114 Native Title Amendment Act 2009 – Information Sheet; More information about the amendments can be found

on the Attorney-General Department’s website; <http://www.ag.gov.au/>115 Ibid.116 Ibid.117 Ibid. 118 Ibid.

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Additionally, changes to sections 87 and 87A allows the courts to make orders on matters that go

beyond native title as it has been acknowledged that native title claims often raise issues other than

native title. The effect of such a reform gives parties the ability to ‘resolve a range of native title and

related issues through native title agreements, and thereby encouraging comprehensive claim

resolution within the one process’. 119 The effect of this change means that parties should be able to

resolve a range of native title and related issues through native title agreements, and thereby

encouraging comprehensive claim resolution within the one process. 120

Furthermore amendments were implemented pursuant to the Evidence Amendment Act 2008 to the

Commonwealth Evidence Act 1995 to native title claims that commenced prior to 1 January 2009.

These include reforms that provide clarification on important aspects of the claims process, that

recognizes ‘the manner in which indigenous communities record traditional laws and customs, and

have the potential to greatly assist Aboriginal and Torres Strait Islander people to give evidence in

native title matter’. 121

Further supported by the new exceptions to the hearsay and opinion rules enacted so oral evidence

with respect to ‘traditional laws and customs’ and is now, no longer prima facie inadmissible

particularly, as this is sometimes the only way in which these ‘laws and customs are maintained’. 122

These amendments make it easier for the courts to assess appropriate and suitable evidence relevant to

native title claims proceedings. It may also be argued that these reforms have made considerable in

roads to essentially mitigating Indigenous claimants onerous evidentiary requirements that had been

implemented through the ’10 point plan’ outlined in the 1998 amendments.

F Developments Post 2009 Reforms

It is noteworthy that there have been some interesting developments that have come about since the

implementation of these reforms and amendments. Such as the Native Title Amendment Act (No1)

2010 123 which provides for processes that deal specifically with the construction of public housing and

some other public facilities;124 the registration of the 500th Indigenous Land Use Agreement, another 119 Ibid120 Ibid, 2.121 Ibid.122 Ibid.123 Native Title Amendment Act (No1) 2010 Act No.144 of 2010 as made, An Act to amend the Native Title Act 1993,

and for related purposes ; Originating Bill: Native Title Amendment Bill (No.1) 2010.124 6 December 2010, cited in; Native Title in Australia, Updated 26 February 2015

<http://www.sbs.com.au/news/article/2012/06/03/timeline-native-title-australia>

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milestone in agreement making. The ILUA’s cover more than 15.5 per cent of Australia; 125 in addition

to the announcement by the Attorney General’s key native title institutional reforms that focus on

improving the efficiency of the native title systems. 126

It has been well documented throughout this paper that although intentions may appear admirable,

arguably, native title is not serving the purposes of the very people that had purported to serve. In spite

of the fact, as Robbie Thorpe 127 stated, ‘aboriginal people were forced to accept native title “we never

wanted that” he says “we weren’t marching down the road demanding native title, we were saying,

land rights” ’. 128

Twenty years on it appears that native title has been condemned to the hamster wheel of justice. On

this point Tom Calma says; ‘Native Title [is] one of the most complex and slowest parts of the justice

system’.129 The following looks at native title two decades following its enactment.

X. POST NATIVE TITLE; TWO DECADES ON

Many of these issues discussed and of particular concern to indigenous Australian’s will be the focus

of review by the Australian Law Reform Commission. Notably, ‘there have been calls for further

amendments to the Native Title Act for some time and indeed we’ve seen a process of significant

amendments to the Act over time, so it’s timely to look at how it’s working 20 years on. 130 Notably, a

day after the 20th anniversary of the Mabo decision, Attorney-General Nicola Roxon says; ‘the native

title process needs speeding up’ 131 Ms Roxon suggested that a government review is necessary, saying

that there were predictions that some native title claims could take 30 to 40 years to resolve. Adding

that ‘it’s an overly slow process’ and the playing field needed to be made more fair, parties should be

given the tools to be able to properly negotiate and it would be appropriate for indigenous leaders to

call for the reversal of a requirement that traditional land owners prove an unbroken connection to the

land. Ms Roxon went on further to say that; ‘we are looking at ways that parties can agree to ignore

the issues of historical extinguishment that can speed up the process very significantly’. 132 Following

125 Ibid, as of 31 March 2011.126 Ibid, as of May 2012.127 Robbie Thorpe, Aboriginal Activist.128 ‘Treaty is a must – Activist’ Koori Mail 481, 16.129 Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner. ‘A few home truths after

Mabo’SMH 06/06/2009130 'The Native Title Act, 20 years on', above n 35 quoting; Minerals Council of Australia spokeswoman; Melanie

Stutsel.131 Speed up native title process, Source: <http://www.sbs.com.au/news/article/2012/06/04/speed-native-title-

process-roxon?cid=cxenseab_a> 27 February 2015.132 Ibid.

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on from these remarks made on the 20th anniversary of Mabo it appears [with frustration] we have

come full circle, returning to the point of origin on the native title rollercoaster. The following will

analyse auxiliary reports, and how, if at all, these issues as alluded to by Ms Roxon are being

appropriately addressed.

G Auxiliary Native Title Report

(i) Native Title Organisations Review

A number of past native title consultations, reforms and reports had been initiated by the Australian

Government, one such report in 2012 was commissioned to Deloitte Access Economics. The final

report was released by the Australian Government on 21 May 2014 entitled; Review of the Roles and

Functions of Native Title Organisations. The report; ‘considered how those orgaisations can continue

to meet the evolving needs of the system, and particularly the needs of native title holders after claims

have been resolved’. 133 Some may suggest that although serving a particular purpose, that purpose

does not advance the ideology of the indigenous population and could be considered to be too little too

late.

(ii) ALRC Native Title Inquiry

The ALRC commenced an inquiry on 3 August 2013, the inquiry will be into specific areas of native

title law. The commission was said to be handed down by March 2015, as it stands the report was

published on 4 June 2015, it is this report that will be the focus within the later component of this

133 Australian Government – Attorney-Generals Department; <http://www.ag.gov.au/Consultations/Pages/Currentnativetitlereforms.aspx>

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dissertation. 134 Professor Lee Godden, appointed to the ALRC 135 will be heading the Commission’s

Native Title inquiry, some key concerns that will be addressed relate to the length of time it takes to

resolve a native title claim and the difficulties claimants face when having to establish continuity of

traditional laws and customs. Subsequently, the ALRC report on recommendations for reform of the

Native Title Act entitled; Connection to Country: Review of the Native Title Act 1993 (Cth) was

published on 4 June 2015. 136

Understandably, indigenous groups are optimistic that the Commission’s report will put forward

appropriate recommendations for the purpose of ‘mak[ing] future Native Title determinations faster

and more beneficial for Indigenous Australians’137 and indeed, that these recommendations would be

implemented and subsequently adopted. Given the debatable historical progression, some consider that

this report as with all others will be just going through the motions, ticking the boxes. Glen Kelly says;

‘The only people who have uncertainty in Native Title are the Native Title claimants. We also know

now that the content of Native Title is very poor. It’s the right to do things on land which someone

else now owns and from our point of view, from this representative body’s point of view we don’t

think that’s acceptable’ 138

In light of previous discussion, the following will detail the recommendations put forward by the

Australian Law Reform Commission relating to what is required to alleviate the many issues and

barriers to the recognition of native title, for example; amending the definition of native title in the

Act.

XI. REPORT: AUSTRALIAN LAW REFORM COMMISSION

The ALRC report 126 consists of 30 recommendations. In addition the report ‘examines authorization

of persons bringing native title claims and joinder of parties’. 139 The report was headed by Professor 134 For information visit the Australian Law Reform Commission native title inquiry page. For updates on the

progress of the inquiry, visit the Australian Law Reform Commission website.135 Professor Lee Godden was appointed to the Australian Law Reform Commission as a part-time Commissioner in

July 2013, in charge of the, Inquiry into the Native Title Act 1993.136 ALRC report on recommendations for reform of the Native Title Act, Connection to Country: Review of the

Native Title Act 1993 (Cth), (ALRC report 126), tabled on 4 June 2015 <https://www.alrc.gov.au/news-media/alrc-reform-native-title>

137 'The Native Title Act, 20 years on', above n 34.138 Ibid, quoting Glen Kelly.139 ALRC Report 126, above n 142.

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https://www.alrc.gov.au/news-media/alrc-reform-native-title

http://www.alrc.gov.au/publications/native-title-ip-45

http://www.ag.gov.au/Consultations/Pages/AustralianLawReformCommissionnativetitleinquiry.aspx


Lee Godden. Prof. Godden stated that; ‘the reforms refocus on the core elements of native title and

introduce flexibility in the evidence required for connection’. 140

Commissioner Godden went on further to say;

‘The Native Title Act has the capacity to improve the economic circumstances of Aboriginal and

Torres Strait Islander People. The ALRC has focused on ensuring that the native title system is

efficient, fair and equitable and that the law has the flexibility to facilitate the beneficial purposes of

the Act’. 141

The summary of recommendations relate to several central recommendations, such as; connection

requirements, recommendations around s223(1) of the Native Title Act, the law for proving

connection, empowering the courts to disregard substantial interruption, a presumption of continuity,

nature and content of native title, authorization provisions, joinder and party provisions, and claims

resolution. 142 These core issues have been extensively investigated through 162 consultations from

around Australia and the receipt of upward of 70 submissions.

Subsequently it was noted by Commissioner Godden that;

‘The ALRC was assisted by the generous contribution of indigenous leaders and organizations,

Federal court Judges, legal professionals, industry bodies, anthropologists and academics who

afforded unparalleled access to information about how the Native Title Act claims system is

operating-facilitating robust law reform’. 143

Duly noted, the report is very extensive and in the context of this paper, given the passage of time

since the report was published it would be difficult to assess whether these recommendations have

indeed taken affect and delivered the appropriate outcomes as forecasted by the ALRC.

140 Ibid.141 Ibid.142 ALRC, Connection to Country: Review of the Native Title Act 1993 (Cth), Summary Report April 2015, 14-21.143 See; ALRC website relating to recommendations for reform of the Native Title Act,

<https://www.alrc.gov.au/news-media/alrc-reform-native-title>

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https://www.alrc.gov.au/news-media/alrc-reform-native-title


XII. CONCLUSION

As evidenced, it is the general consensus within the indigenous community that Native Title

legislation has not represented appropriately the ideals of indigenous Australians. Indigenous

Australians and the need to be properly recognised is not only a testament to their resilience, it is their

spiritual right 144 and their right as custodians as what they refer to as, country. 145 As native title

does not equate to land rights, indigenous Australians should not settle on second best. Even though,

given the documented history of Australia’s indigenous population, the question should be asked as to

whether as a nation we are finally beginning to do right by our indigenous population relevant to

appropriate recognition of traditional lands, or, are in fact the strategies that are purporting to amend

these past transgression merely, smoke and mirrors. The struggles faced by indigenous Australians to

establish their cultural and spiritual connections and their subsequent legal rights to particular areas, is

symbolic of the struggle occurring across Australia. Notwithstanding the recognition of native title and

an array of land rights Acts, indigenous Australians are still being subject to the continual erosion of

these rights by the Australian state. Extinguishment of Native Title is indicative of a history of denial

of such rights. Evidently, these habits that have formed over the past 200 years are proving difficult to

break. It may very well be argued that Government and even the Courts have played a significant part

in restricting the scope and impact of Indigenous recognition. Tom Calma, alluded to this fact by

suggesting that ‘Native Title [is] one of the most complex and slowest parts of the justice system’. 146 144 Chris Cunneen, Judicial Racism-Aboriginal Justice Issues

<http://www.aic.gov.au/media_library/publications/proceedings/21/cunneen.pdf>145 This term specific to Indigenous Australians, Country is understood as meaning as a term used by Aboriginal

people to refer to the land to which they belong and their place of dreaming. Aboriginal usage of the word is much broader than standard English. See; Australian Museum-Glossary of Australian Indigenous Terms <http://australianmuseum.net.au/glossary-indigenous-australia-terms>

146 Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner.

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http://australianmuseum.net.au/glossary-indigenous-australia-terms

http://www.aic.gov.au/media_library/publications/proceedings/21/cunneen.pdf


History has also shown, extending from these landmark decisions, case law, legislation and legislative

reforms have also been left wanting, however out of judicial darkness come proposals by the

Australian Law Reform Commission to potentially amend some of these transgressions, only time will

tell.

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<http://www.nt.gov.au/ntg4/Subject?documenttitle=*&myLevel=4&myRefPoint=cn=Business%20and%20Industry,cn=Licences%20Permits%20and%20Registration,cn=Exploration%20Mining%20and%20Petroleum&layout=show>

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