Monday, August 6, 2007

Native Title – Regional Land Use Agreements and Indigenous Governance


Introduction 
In the fifteen years since the 1992 decision in Mabo [No. 2],[1] and the subsequent passage through Federal Parliament of the Native Title Act 1993 (Cth) (“the NTA”),[2] the prospect of Native Title recognition has fundamentally transformed the formal recognition of indigenous land use and ownership, and the political and legal structures within which indigenous affairs are carried out.

The potential for symbolic, as well as legal, recognition of indigenous priority in Australia, for even a merely implied recognition of sovereignty, and for Native Title to help provide a means to overcome poverty and exclusion, has proved an attraction for some indigenous rights organisations and sympathisers ever since. In reality, it has opened something of a Pandora’s Box, not only for those fearful of its effects on their own interests, but for those hoping to gain the recognition it promised.


The Native Title processes have proved frustrating, expensive, uneven, and often unrewarding, and government, and corporate, opposition to Native Title have further bogged the process down. In recent years, alternative and hybrid approaches to indigenous land claims have evolved, often involving negotiation, agreement and shared use of land – perhaps the most notable of which are the Indigenous Land Use Agreements (ILUAs), an alternative introduced in the 1998 amendments to the NTA as a result of lobbying.[3] However, major problems also shadow their use during the negotiation process, as well as their implementation and their review. 

In response to some of the challenges of the negotiated settlement process, the concept of making Regional, or Statewide, Framework Agreements (RFAs, SFAs) in order to streamline negotiations has gained some popularity. I will look at some of the recent developments in this area below, in particular the process underway in South Australia since 1999, which holds some promise as a template for future negotiations on a similar scale, as well as the development of a more coordinated and effective form of indigenous governance.

Native Title: Still Flogging A Dead Horse?


While Native Title determinations made subsequent to the Mabo decision have provided decidedly mixed outcomes, perhaps leading some observers to believe that Native Title is dying a gradual death, recent decisions in the Federal Court suggest otherwise,[4] as has been argued elsewhere.[5] However, the constraints of the NTA and High Court decisions such as Yorta Yorta[6] and Ward[7] have served to undermine much of the potential contained in the 1992 landmark case, encouraging the search for more satisfying alternatives.


One of the biggest problems that continues to plague Native Title is extinguishment. The massive validation of past acts of extinguishment by the NTA was unsurprising, the second round of validations in the 1998 post-Wik amendments were more troubling and the condition for recognition of an ongoing connection with the land required under s 223(1) has been interpreted in such a way as to further restrict the scope of Native Title were worrying.

The use in Yorta Yorta[8] of the phrase from Mabo, “the tide of history”[9] to explain the failure of the claimants to establish sufficient ongoing “traditional” connection is a case in point. While this view has been rejected in the Wotjobaluk case,[10] a justifiable fear remains that the Native Title process can be, and is being, used to further the dispossession of indigenous people via the back door.[11]

Other recent successful determinations, such as the Single Noongar Claim around Perth (combining six of the seven registered claims in the area)[12] and the De Rose Hill case,[13] may be about to reverse this trend, but both of these cases are still pending High Court challenges, and therefore do not represent the last word on the matter.

The regime of extinguishment contained in the NTA has meant that the area in which Native Title can be recognised is both limited, and extremely uneven, in its spread. While the Noongar determination covers a large part of south-western Western Australia, including areas in metropolitan Perth, De Rose Hill, like most Native Title determinations, is more remote.

Most other determinations have also been made in the remote, isolated and underpopulated areas of Australia. When, by June 2006, a mere 60 determinations of Native Title had been successful[14] (although there have been more subsequently,[15] with hundreds more waiting), of the land affected, 96% was classified as “very remote”, and 92% of all Native Title land fell within the borders of Western Australia alone, mostly in the Western Desert region.[16]

By contrast, the greatest density of Aboriginal and Torres Strait Island people – like the rest of the population – lies in the eastern states, and particularly in urban areas such as Sydney and Brisbane where Native Title has almost certainly been entirely extinguished.[17]

Clearly, therefore, one massive weakness in the Native Title process, as a means of attaining meaningful economic justice or and rights after Mabo, is the decidedly lopsided nature of its recognition at law, which excludes the majority of indigenous people from achieving it. While other methods of attaining land exist in these areas, they do not – rightly or wrongly – carry the same symbolic weight as the recognition contained in Mabo.[18]

Furthermore, the actual content of Native Title remains unclear, and has been  deliberately limited, under the NTA and subsequent cases, to “traditional” pursuits. While hunting, fishing, entering and camping, and perhaps digging for ochre, might be allowed, mining or other commercial activities, even by a company owned and run by Native Title holders, or even trading turtle-meat caught within the scope of Native Title may not be allowed, if the connection with traditional practice is not established.[19] And while Native Title holders may carry on traditional practices in a slightly modernised way (as in Yanner),[20] the greater socio-economic benefits inherent in more familiar forms of title appear to be denied them.

While it is important to remember that each community and group has different expectations and uses for their land, and may not desire the right to exploit resources or pursue land uses along “contemporary” lines, there seems little reason to deny them that right should they so choose. To do so effectively makes Native Title a form of “second-rate title”,[21] or a mere “permissive occupancy”,[22] and one that is racist to boot.[23]

There are other disadvantages of the litigious Native Title route. Court costs can prove prohibitive, denying indigenous groups the chance to properly pursue Native Title determinations. Many, if not most, groups are unable to cover the cost associated with the series of court cases too often involved in a Native Title claim independently, denying the opportunity to effectively pursue their case for Native Title recognition in the courts.

This is so despite the existence of government funding and registered organisations designed to facilitate claims. A 2006 national survey of those organisations responsible for registering and pursuing Native Title claims, the Native Title Representative Bodies and Native Title Services (NTRBs), found that of the 16 who responded (out of a possible 18), less than half were accessing appropriate Commonwealth Government funding.[24] The same was true for traditional owners.[25] The main complaints made by NTRBs were of confusion caused by the lack of clarity in NTA provisions, and a lack of sufficient money to properly carry out the application and registration of claims under that regime.[26]

The Kennedy determination highlights one effect of the problems of underfunding. The claimants had applied for funding to continue the proceedings, but it was not provided and they were forced to discontinue. In his judgment, however, Sackville J formed the view that their withdrawal “suggest[ed] clearly that they [the Indigenous group] have made an informed decision not to press any Native Title claims to [the property]”.[27] In reality, the facts suggest not so much an informed decision, as a grudging admission of defeat, due to a lack of resources, in the face of an expensive complicated and time-consuming process.



The issue of cost has been further aggravated by the frequent insistence by governments on contesting Native Title determinations through the courts rather than directly negotiating a solution. Once again, Yorta Yorta provides a thoroughly disappointing example, where initial indigenous overtures for a mediated settlement of their Native Title claim were ignored,[28] and the case forced into (ultimately unsuccessful) litigation.



Delay poses a similar problem, generally, if not always, being worse for claimants than for other parties. Key witnesses, especially elders, may die during the course of a trial (or even pre-trial), and excess delay tends to mean excess costs that a community already struggling to finance matters simply cannot afford. Adding strain to the rope, the amended NTA, while preserving a “right” to negotiate, has significantly shortened the period allowed to prepare and lodge an application of claim for Native Title in an area earmarked for economic activity such as mining, putting the already stretched resources of NTRBs and communities under further stress.



Despite its many flaws, however, Native Title can’t be dismissed entirely, as it provides some limited results for communities (or parts of them). Success under the NTA grants some rights and recognition, and, after Mabo, the legal and political system has (formally) done away with the obtuse legal fiction of terra nullius.



However, the incredibly uneven and flawed nature of Native Title determinations still raises significant problems within the regime itself. Firstly on the practical question of providing genuine economic mechanism for Aboriginal and Torres Strain Islander people to overcome exclusion and poverty. Secondly, on protecting what little rights or benefits can be gained through Native Title from extinguishment by future acts. Thirdly, on the problem of providing some measure of alternative benefit to groups whose Native Title is denied by the courts.



Negotiated Settlements



The delays of the complicated Native Title processes have impacted on respondent economic interests too, providing added motivation and interest in negotiating agreements with traditional owners for use of the land, particularly in the aftermath of the Wik decision,[29] and the subsequent amendments to the NTA.



These negotiations have the advantage of, on the one hand, often being more cost-effective, providing certainty for investors, and of having the potential to provide so-called “win-win” situations, where the aspirations and needs of all participants can be met, in contrast to adversarial litigation, which necessarily results in one party or another being the “loser”. For critics of Native Title – who don’t believe it represents any meaningful version of Land Rights – it can potentially also provide a workable mechanism for economic gain through shared land use, without diminishing legal or sovereign claim, or having it arbited in a hostile court system.



Possibly the most prominent form of negotiated agreement has been the Indigenous Land Use Agreement (ILUA), introduced in the 1998 amendments to the NTA. Sixty-eight ILUAs were negotiated in the year to June 2006, bringing the overall national total to 250,[30] and more have been negotiated since. Interestingly, the great majority of those lodged and registered in that year were in New South Wales and Queensland,[31] suggesting that ILUAs might be used, to an extent, in areas where Native Title may not otherwise be found to exist.



The NTA in fact provides for three different types of ILUA in sections 24BA (“body corporate agreements”), 24CA (“area agreements”) and 24D (“alternative procedure agreements”). Here too, extinguishment is an issue, as the first two types of ILUA are conditional upon the surrender of claimant rights to Native Title, whether or not a claim has been, or ever could be, registered, but the scheme aims to provide commensurate consideration. This may be in the form of royalties, employment, continued access, or any number of other possibilities as negotiated.



Alternative procedure agreements, however, allow for the use of the land while simultaneously allowing protection of future Native Title rights. It should not be assumed that this third option is necessarily always the most desirable to traditional owners (often it is not, some economic interests wanting certainty about future claims on the land, and some groups prioritising economic and other benefits over a claim to certain areas of land), but it has the added advantage of allowing development to proceed on the basis of current agreements, while ensuring some interest remains for future and current generations in the case of breach of agreement, or future dealings. In short, this provides some measure of protection against extinguishment.



Problems with ILUAs




The negotiation and implementation of ILUAs suffer from signifant defects, however, which affect not only indigenous groups, but state and corporate interests as well. One of the stand-out findings of HREOC’s Native Title Report 2006 was that:



 “[t]he capacity of Indigenous people to leverage opportunities from ILUA and SRA agreements is largely dependent upon the existence of strong local governance and entities with capacity to progress economic outcomes”[32]



The same report identified that only 25% of traditional owners understood their agreements, while a disturbing 60% of NTRBs believed that traditional owners did, in fact, understand.[33] These figures are worrying, not only in terms of whether traditional owners are giving informed consent to decisions over their land, but also in terms of the effectiveness of NTRBs in representing the very groups for whom they exist. There is a danger and – it appears – legitimate fear that the inability of NTRBs to function appropriately will and is making them into further instruments of dispossession.[34]



Because almost all ILUAs are limited in scope to a particular area and indigenous group or groups, different ILUAs will necessarily lead to different outcomes, and therefore potential inequalities of outcome. Thus far, the dispersed nature of the various ILUA negotiations and parties, the financial shortfalls of indigenous negotiating bodies, and the increasingly restrictive legislative framework within which to negotiate has tended to favour non-indigenous interests.



Earlier this year when Fred Chaney – the vice-president of the body charged with overseeing these processes, the National Native Title Tribunal (NNTT) – resigned, he openly criticised the native title process, and the Native Title Tribunal in particular, admitting that probably only one quarter of all agreements made would result in any meaningful benefit for indigenous communities,[35] and that the process was too concerned with legal technicalities to provide real results.[36]



This issue can at times be further complicated by other economic and political factors – not just at a State or Federal level, but also within and between the indigenous polities. There are also ongoing problems with identifying the appropriate indigenous representatives for the area – a point related to the issues of NTRB funding made above – and with review of whether or not the implementation has provided the desired outcomes. Not least because identifying these failings is itself often also a challenge.[37]

 


The South Australian Statewide Negotiations



In the light of so many challenges, some groups and governments have chosen to negotiate larger regional or Statewide framework agreements within which to more easily settle land use agreements, to varying degrees of success.[38] In particular, as discussions in South Australia since 1999 have shown, there are interesting developments arising that inform the perennial issues of indigenous sovereignty, self-determination and self-governance.



Beginning with a Government-initiated meeting in 1999, the Native Title Unit of the Aboriginal Legal Rights Movement (ALRM – the sole registered NTRB in South Australia) joined with the South Australian Government, the South Australian Farmers Federation (SAFF), South Australian Chamber of Mines and Energy (SACOME), the Local Government Association (LGA) the South Australian Fishing Industry Council (SAFIC), and the Seafood Council in creating the design for a broad framework agreement within which local negotiations for ILUAs could more easily and effectively by carried out.[39]



The key incentive for this process was ostensibly to “resolve Native Title matters by negotiation rather than through litigation”,[40] ultimately allowing the parties to “achieve certainty over access to and sustainable use of land, water and resources through negotiated and just settlement”,[41] thereby avoiding the pitfalls of both ad hoc negotiation and Native Title litigation previously mentioned.



The framework was also designed to overcome some of the other problems that usually arise with ILUAs, including overlapping claims, and problems with certification, as well as more prosaic issues such as cost. One key project has been the development of detailed ILUA templates for a variety of uses – at a Local Government level, for mineral exploration, and for pastoral and ‘outback areas’, in collaboration with those sectors – that further contribute to the ease, certainty and cost-effectiveness of negotiations on all sides.[42]



The first stage of the plan, from 2000-2003, was to engage with the various traditional owners, identify their aspirations and worries, and to establish the processes for negotiating later ILUAs.[43] Parry Agius, from the ALRM’s Native Title Unit, points out that a particularly important concern held was that the agreement be able to facilitate rapid negotiation of ILUAs while protecting Native Title,[44] while the process could actually transcend Native Title, in enabling indigenous use of waterways not included in that system.



The process followed drew on a number of different negotiation models, but, as Parry Agius and Richie Howitt point out, the idea was primarily to initiate a genuine bottom-up, or “organic”[45] approach, “rather than processes led by external experts, which have so often failed to take the notion of Aboriginal self-government seriously”,[46] as part of developing foundations “for comprehensive settlement of Native Title in South Australia.”[47]



The many challenges of the negotiation process, given time and sufficient money and political good-will, appear to have led to some almost unexpected developments. According to Agius, because of language difficulties – with significant delays incurred by the translation needs of traditional owners from the Western Desert region (for some of whom English was a second or third language)[48] – and the large distances to be travelled by participants, more time was available to consider the process itself, which was on an opt-in basis. The geographical spread of traditional owners involved in the negotiations also meant that some negotiations needed to take place in a series of fora across the state.[49]



In December 2000, in response to the parliamentary wrangling over the Confirmation and Validation Bill, delegates to the “Congress of Native Title Management Committees” (“the Congress” – the body of traditional owners and their representatives deliberating the negotiations) decided to formally come together as a “united voice”. They reaffirmed their commitment to avoid being sidelined by mainstream political processes, passing a motion of no confidence in the Premier and Minister for Aboriginal affairs that also contained a call for legislation to ensure aboriginal representation in parliament, and for “South Australia to enter into serious, bi-partisan negotiations of a comprehensive treaty.”[50] Out of this event the Congress came to be recognised as the peak body on Native Title issues in the state.[51]



The second stage of the process – the statewide negotiatons from 2004 – 2006 – have been completed, and in January 2006, as the third part of the overall plan,[52] the parties released a Strategic Plan for 2006 – 2009, which outlines the various ILUAs planned under the framework agreement, the time-frame for their implementation and their type.[53]



Finally, on 11 July 2007, an Aboriginal Heritage Working Relationship Agreement[54] was signed[55] by the South Australian State Aboriginal Heritage Committee (SAHC), the body established under Section 7 of the Aboriginal Heritage Act 1988 to advise the Minister on Aboriginal issues, and the Congress, affirming the Statewide ILUA strategy, now known as the South Australian Native Title Resolution (SANTR).[56]



The Congress then established an interim Congress Executive Committee (ICEC), comprised of two elected members authorised from each NTMC. As it stands, the SANTR could represent a promising new step in the development of indigenous self-governance.



Outstanding Challenges



This negotiation process has not entirely free of problems, pitfalls or cooption either, however. There is a danger that once a framework such as the SANTR has been set up to smooth the way for ILUA negotiations that the ability of unregistered claimants, or dissatisfied participants, will be ignored in the name of the “greater good.”



There are also questions as to whether future generations will be held to be bound to the agreement – does it have contractually binding validity, and if so (as is presumed), what is its scope? Does it extend to previous agreements, or to their renegotiation?



One example of potential problems has already arisen in the case of the Narungga ILUA, on York Peninsular, one of only a handful already being implemented in South Australia. It highlights the ongoing difficulty of implementation, despite the claimed “bottom-up” nature of the statewide agreement, and difficulties of reviewability.



An agreement with the Narungga people, the State and four local councils, the ILUA in question validates past acts, allows for future extinguishment in certain circumstances (public works, grants of freehold), and provides a compensation scheme. Importantly, as there is no Native Title claim lodged, it also includes schemes for acts over “sensitive land” and heritage provisions.[57]



The dispute arose over a wind farm development adjacent to a burial site during which certain conditions are claimed not to have been followed, at least one burial site already been disturbed[58] - possibly deliberately – and great distress caused as a result.[59]



As well as the company, Quenten Agius, a representative of the traditional owners, also blames the State Government, for refusing to halt or properly review the project under the Aboriginal Heritage Act (SA).[60] The complainants also express a clear sense of powerlessness, and of distrust and of disillusionment with both the ILUA process and with key players in the development of the SANTR. As Quenten Agius asks: 



“Is ALRM under pressure from the government to railroad through these ILUAs?  Yes they are.”[61]



It is clear from the example in South Australia, and in similar regional agreements implemented overseas (for example, Canada), that, as Ritchie Howitt points out, such framework agreements take years, if not decades, to finalise. Even then there will remain outstanding issues over implementation, and review[62] much as there are in individual ILUAs.



Land Agreements – An Overview




Framework Agreements, such as that sketched above, are not in themselves especially new, nor unique to South Australia (although the SANTR itself appears almost sui generis in nature). Nor have they been the only innovations over the past years. Under various schemes, agreements and legislation, indigenous people now hold a form of rights or interests to almost 20% of Australia,[63] but they do so in a variety of different ways, all of them falling short of a recognition of sovereignty, and frequently without any meaningful control at all.



Most recently, in Victoria, the Traditional Owners Land Justice Group (TOLJG) tabled a discussion paper in August 2006, suggesting the initiation of a genuine process of negotiating a state-wide agreement.[64] The paper is critical of the then Attorney-General Rob Hull who signed-off on such a project in 2000, but with little or nothing having come of it to date.



The discussion paper contains suggestions reminiscent of projects from around Australia, including from the South Australian process, as well as proposing a funding scheme based on that used in New South Wales for the Aboriginal funding under the NSW Aboriginal Land Rights Act (1983).[65]



That scheme is the statutory payment for fifteen years of 7.5% of New South Wales’ Land Tax into a management account for the Land Council to fund litigation, administration negotiations, and land purchases. However, the suggestion made by the TOLJG was to make the money available “until such a time as all traditional owner corporations in Victoria are firmly established in an economically sustainable manner.”[66]



The degree of good faith that appears to have infected the SA negotiations (with some exceptions) ought not to be practically expected or assumed in all cases, despite the sometime argument that governments ought to be regarded as bearing a fiduciary duty in regard to Native Title.[67] In fact, it may be preferable to not have to rely on such a duty, so as to enable open and frank discussions, to prepare against partisan issues infecting negotiation, and to prevent reliance on the whim and rhetoric of politicians. Having a secure financial basis is vital in such situations.



The Victorian paper also argues the necessity for negotiations to be conducted with a new indigenous body, along the lines of the Congress in South Australia, and indicates a conscious need to properly establish a strong foundation for negotiations – identifying the appropriate negotiating partners, identifying the needs and aspirations of all parties (including economic and industrial sectors), and recognising the need for financial independence in order to establish the level of self-governance that could make such an agreement possible and sustainable.



The proposal also specifically supports negotiation of Native Title and use agreements (leases) over national parks,[68] for which there is already provision in Victoria, and precedents in Queensland, the Northern Territory and in New South Wales in Biamanga and Gulaga National Parks on the south coast. In addition, in New South Wales, negotiation for regional framework agreements in some areas, for example in the Northern Rivers region in the 1990s, have been going on for longer than the South Australian negotiations.[69]



However, New South Wales, especially due to the great degree of European settlement and subsequent extinguishment of rights under Native Title, has little land to negotiate over. Given the concentration of indigenous people in that state, this can only very partially be made up for by the funds awarded the New South Wales Aboriginal Lands Council, which currently administers 616,460 hectares of land in the state.[70]



In Queensland there are already regional and local agreements in existence, but no statewide agreement. As mentioned above, a large proportion of ILUAs are negotiated in Queensland (and New South Wales), and, as with the recent Native Title awards in Cape York, are commonly individual agreements combining ILUAs with a limited form of Native Title recognition.



Probably the most notable agreement in Queensland is that in Cape York, which O’Faircheallaigh describes,[71] but outcomes from these agreements are almost impossible to determine until something goes badly wrong, as the content is usually confidential.



Agius et al admit a certain amount of cross-fertilisation between the Cape York negotiations and those in South Australia, and point out what they regard to be shared features of both negotiation processes:[72]



1. The relationships between Indigenous leadership, expert advisers and community members.

2. The balance between process and outcomes.

3. The availability of independent ‘arm’s-length’ resources for Indigenous participation in negotiation.

4. The nature of accountability and the evaluation of outcomes.

5. The amount of resources required is also an issue.



Non-opposition by Governments can also make the process significantly easier, but this has not taken place everywhere. Western Australia, for example, has not set in train discussions like those in South Australia, or even Queensland. Probably because of the abundant mineral wealth there, and economic interest that flow from it, has come under criticism in the past for not engaging enough with indigenous communities, for not recognising indigenous property rights sufficiently, and for contesting Native Title claims more vigorously.[73] Ironically, as mentioned above, over 90% of recognised Native Title held land in Australia has been determined to fall in that state.



Predictably, criticism has flowed in the opposite direction, too. On August 3, 2007, the Association of Mining and Exploration Companies (AMEC) complained that Native Title holders were “blackmailing” mining companies in the Northern Territory and Western Australia by demanding payment for exploration rights.[74]



AMEC’s complaint was that communities were demanding money from mining companies (who termed this “go-away money”) to allow exploration for minerals often even before the negotiation process (or the presence of the minerals) had been established.



This stands clearly at odds with the criticisms attributed to Fred Chaney by Stephen Hagan in Online Opinion in April 2007, to the effect that the National Native Title Tribunal and the process it oversees is biased in favour of mining corporations and other economic interests, making satisfactory outcomes for indigenous communities much harder to achieve.[75] These criticisms are supported by analyses elsewhere, and by even the most cursory reading of the Native Title legislation.



What stands out in the criticism by AMEC is a desire that the Western Australian and Commonwealth governments to employ the option of litigation more often in Native Title and Land Rights situations, which, as is abundantly clear, is a route that disadvantages indigenous interests profoundly.



In this climate, land use agreements may not be a particularly fruitful alternative. While ILUAs and other agreements can be mutually beneficial to all parties if negotiated in an amicable environment, the very opposite can be achieved during hostilities – a truth which lead to the development of the court-negotiated settlement process in the first place.



This stands true at the moment for possibly the most important land under a degree of Aboriginal control in Australia, that in the Northern Territory. It has not come within the ambit of the discussion here, mostly because is largely held under the Land Rights Act (NT) (1976), which has its own problems and benefits distinct from the Native Title regime.



The Northern Territory is, however, a major source of minerals, while around 40% of land there is held under Land Rights, and Aboriginal and Torres Strait Islander administration. The AMEC statements above, therefore, come at a highly contentious time, when the federal government’s violent and opportunistic “intervention” in the Northern Territory – ostensibly in response to social issues in indigenous communities including child abuse, alcoholism and violence – is being interpreted by many within that community – and more widely – as a cover for further “land grabs”.[76]



Implications



Native Title on its own remains particularly vulnerable to extinguishment, and its utility is questionable without a legal framework that enables economic activities to be pursued beyond a mere “right to negotiate”, not to mention deeper recognition of right to land. Despite the further legal complications such a situation might bring, it is the combination of that framework and the underlying native title rights that re-enliven the question of indigenous governance and self-determination.



Undoubtedly, while it might not be recognised at law, some degree of indigenous governance (if not sovereignty) goes on regardless. What is, and always has been, lacking in Australian law and politics has been the proper recognition of Aborignal and Torres Strait Islander peoples, their sovereignty and rights, and the means for them to exercise those rights in a negotiated conversation with the Australian state.



For some time, the argument has revolved around a “treaty” (or a “makarrata”, or ‘compact’), but the Commonwealth government of the past decade has forced this off the table, for the forseeable future. Instead, there has been a focus on “practical” reconciliation and self-determination, accompanied by a series of roll-backs in what little rights constitute legally recognisable Native Title, and an approach to indigenous issues that some have compared to a “new assimilation” and a new and cynical disempowerment of Aboriginal and Torres Strait Islander communities.[77]



The decision to abolish ATSIC in 2004, and the rapid dissolution of limited self-governance in the Northern Territory in June 2007 seems to represent only the latest step in a perspective at odds with the kind of processes being negotiated at a regional level in almost every state and territory – or at least with the image they present.



The central aim of Native Title rights, like other land rights, is ostensibly to not only to provide justice to indigenous Australia as symbolic justice, in the form of an apology, a compact and/ or a treaty. It must also be social and economic justice for centuries of dispossession, genocide and marginalisation, which can begin to give the first kind substance.



The two are of course inter-related, for while the second is more immediate, it is no good to provide social and economic opportunities, if there are no mechanisms for implementing them and no sense of ownership and self-determination. Those that best can do these things are those on the ground in communities, rather than tribunals, parliaments or law offices.  



As the Central Land Council said in 2004, "direct funding to responsible regional bodies - with solid mechanisms for good governance - is the best way to deliver programs on the ground.”[78]



The same goes for negotiating land use agreements. As the ILUA experiences, and the SANTR negotiation process in South Australia, have illustrated over the past decade, the most effective and promising organisations and agreements within which to negotiate indigenous governance issues are ones where indigenous communities themselves play a leading and independent role, from a position of relative strength.



Equally, from the position of non-indigenous negotiating partners, the greater social and political stability made possible by indigenous-controlled agreements not only have the advantage of creating circumstances favourable to the overcoming problems of dependency and poor governance structures in indigenous communities, but provide potentially greater certainty for economic interests, on all sides.



It is the challenge of recognising indigenous self-governance, and granting it the means to take effect, that is proving to be the challenge facing governments and other sectors. If the experience of South Australia continues to advance, and similar projects develop nationally, then it seems that at some point in the future, a fuller, national and public, engagement with indigenous concerns, including a serious and meaningful reassessment of Native Title and Land Rights, will be necessary, if not inevitable. What remains lacking – as ever – is a political will to engage beyond electoral cycles and selfish economic interests.


 
Cases

Bennell v State of Western Australia [2006] FCA 1243 (19 September 2006).

De Rose v State of South Australia (No 2) [2005] FCAFC 110.

Kennedy v Queensland [2002] FCA 747 (13 June 2002)

Mabo v The State of Queensland [No. 2] (1992) 175 CLR 1.

Members of the Yorta Yorta Aboriginal Community v The State of Victoria [2002] HCA 58, 214 CLR 422.

The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] 1606 FCA (18 December 1998) at 129 per Olney J.

Western Australia v Ward [2002] HCA 28; 213 CLR 1.

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (13 December 2005).

Yanner v Eaton, [1999] HCA 53 (7 October 1999)

Yarmirr v Northern Territory (Croker Island) (1998) 156 ALR 370, at 122.





Legislation

Aboriginal Land Rights Act (Northern Territory) 1976

Native Title Act (Cth) 1993.



Articles

Agius, P., and R. Howitt, “Different Visions, Different Ways: Lessons and challenges from the native title negotiations in South Australia”, http://ntru.aiatsis.gov.au/conf2003/papers/agius.pdf,



Agius, P., J. Davies, R. Howitt and L. Johns (2001) “Negotiating Comprehensive Settlement of Native Title Issues: building a new scale of justice in South Australia”, Native Title Representative Bodies Legal Conference, Townsville, December 2002. (published at http://ntru.aiatsis.gov.au/ntpapers/IP20v2.pdf)



Agius, Q., “Wattle Point Developers Breach Aboriginal Heritage Act - the Nightmare continues”, Media Release on behalf of the Narungga Heritage Committee, 15/3/05, http://www.adjahdura.com.au/media-nightmare.continues.htm,



Agius, Q., “Wattle Point Developers Desecrate Protected site”, Open Letter 26/1/05, http://www.adjahdura.com.au/media-desecrate.site.htm



Agius, Q., “Traditional Owners SOLD OUT by SA's first major ILUA  (Indigenous Land Use Agreement)”, media release 19/10/05, http://www.adjahdura.com.au/media-ILUA.soldout.htm



Atkinson, W., “Balancing the scales of Indigenous land justice in Victoria”, Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [2006]
(Volume 3, No.5) http://ntru.aiatsis.gov.au/ntpapers/ip05v3.pdf,



Australian Bureau of Statistics, Population Distribution: Aboriginal and Torres Strait Islander Australians 2001, ABS cat. no. 4705.0, Commonwealth of Australia, Canberra, 2002, p. 12. http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/85AB4A6668629B77CA256BE400026A25/$File/47050_2001.pdf, accessed 3/7/07.



Behrendt, L., “Bargaining on More than Good Will: Recognising a Fiduciary Obligation in Native Title”, Land, Rights, Laws: Issues of Native Title, [1999] (Volume 2, No. 4), http://ntru.aiatsis.gov.au/ntpapers/IPv2n4.pdf



Brennan, S., “Native title is still alive”, The Age, September 25, 2006, http://www.theage.com.au/news/opinion/native-title-is-still-alive/2006/09/24/1159036410579.html accessed 15/7/07.



De Soyza, A., “Engineering Unworkability: The Western Australian State Government and the Right to Negotiate” Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [1998] (No. 26), http://ntru.aiatsis.gov.au/ntpapers/IP26web.pdf



Dixon, I., “SA Native Title Resolution (previously SA ILUA Statewide Negotiations)”, Presentation to the South Australian Natural Resources Management Council Board, 1 June 2007, http://www.dwlbc.sa.gov.au/assets/files/NRM_Council_IanDixon_presentation.pdf



Dixon, I., P. Agius and P. Hall, “Implementing the South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations, paper presented at the AIATSIS Conference June 2005, http://ntru.aiatsis.gov.au/conf2005/papers/DixonI_AgiusP_HallPpaper.pdf,



Flanagan, F., “The Burrup Agreement: a case study in future act negotiation”, Limits & Possibilities of a Treaty Process in Australia, AIATSIS Seminar Series, 3 September 2001, http://www.atns.net.au/papers/Flanagan%20Paper.pdf,



Godden, L., and S. Dorsett, “The Contractual Status of Indigenous Land Use Agreements”, Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [1999] (Volume 2, No. 1), http://ntru.aiatsis.gov.au/ntpapers/IPv2n1.pdf

Hagan, S., “Chaney drops native title tribunal”, Online Opinion, 19/4/2007,   http://www.onlineopinion.com.au/view.asp?article=5717, accessed 12/7



Howitt, R., The other side of the table: Corporate culture and negotiating with resource companies”, Land, Rights Laws: Issues of Native Title, Regional Agreements Issues Paper 3, Native Title Research Unit Issues Papers, AIATSIS, [1997], http://ntru.aiatsis.gov.au/ra/RAIP3.pdf



Human Rights and Equal Opportunity Commission, Native Title Report 2006, April 2007.



Mansell, M., “The Court Gives an Inch But Takes Another Mile”, (1992) 2 ALB 5, 6.



O’Faircheallaigh, C., “Process, Politics and Regional Agreements”, Land, Rights Laws: Issues of Native Title, Regional Agreements Issues Paper 5, Native Title Research Unit Issues Papers, AIATSIS, [1998], http://ntru.aiatsis.gov.au/ra/RAIP5.pdf



O’Faircheallaigh, C., ‘Native Title and Agreement Making in the Mining Industry: Focusing on Outcomes for Indigenous Peoples’, Land, Rights, Laws: Issues of Native Title, Vol. 2, No. 25, Native Title Research Unit, AIATSIS, Canberra, 2003, http://ntru.aiatsis.gov.au/ntpapers/ipv2n25.pdf



O'Faircheallaigh, C., ‘Negotiating Major Project Agreements: The 'Cape York Model', AIATSIS Research Discussion Paper No 11, Canberra, 2000, http://www.aiatsis.gov.au/__data/assets/pdf_file/5578/DP11.pdf



O’Hair, R. B., “Mabo and Land Rights - Searching for a Golden Thread” in M A Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution, St Lucia: University of Queensland Press, (1993).



SA ILUA Statewide Negotiations, South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations Strategic Plan 2006-2009, January 2006, http://iluasa.com/dl/ILUA_FINAL.pdf



SA ILUA Statewide Negotiations, ILUA Templates, http://iluasa.com/info/templates.asp



Sydney Morning Herald, “Native Title recognised in Cape York”, July 26, 2007 http://www.smh.com.au/news/National/Native-title-recognised-in-Cape-York/2007/07/26/1185339142189.html accessed August 2, 2007.



Victorian Traditional Owner Land Justice Group, “Towards a Framework Agreement between The State of Victoria and the Victorian Traditional Owner Land Justice Group”, Framework Agreement, Discussion Paper, Revised after LJG meeting on 26 August 2006, http://www.antarvictoria.org.au/documents/FrameworkAgreement21July06.pdf



Weatherill, J., “Agreement puts Aboriginal heritage first”, Media Release 11 July 2007, http://www.premier.sa.gov.au/news.php?id=1877



            “Working Relationship Agreement between the State Aboriginal Heritage Committee and the Congress of Native Title Management Committees”, 11 July 2007.



Other articles

  “Aborigines’ demands ‘blackmailing’ miners”, Mining Journal Online, August 3, 2007, http://www.mining-journal.com/Breaking_News.aspx?breaking_news_article_id=3366, accessed 3/8/07.

           

“PM accused of Black land grab”, Sydney Morning Herald, July 9, 2007, http://www.smh.com.au/news/national/pm-accused-of-black-land-grab/2007/07/09/1183833415790.html, accessed 3 Aug 2007



“Native Title Chief to Quit”, ABC News, 14 Mar, 2007, http://www.abc.com.au/news/stories/2007/03/14/1871020.htm, accessed 1 Aug 2007.

 



[1] Mabo v The State of Queensland [No. 2] (1992) 175 CLR 1.

[2] Native Title Act (Cth) 1993.

[3] Godden, L., and S. Dorsett, “The Contractual Status of Indigenous Land Use Agreements”, Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [1999] (Volume 2, No. 1), http://ntru.aiatsis.gov.au/ntpapers/IPv2n1.pdf, p. 1.

[4] “Native Title recognised in Cape York”, Sydney Morning Herald, July 26, 2007 http://www.smh.com.au/news/National/Native-title-recognised-in-Cape-York/2007/07/26/1185339142189.html accessed August 2, 2007.

[5] Brennan, S., “Native title is still alive”, The Age, September 25, 2006, http://www.theage.com.au/news/opinion/Native-title-is-still-alive/2006/09/24/1159036410579.html accessed 15/7/07.

[6] Members of the Yorta Yorta Aboriginal Community v The State of Victoria [2002] HCA 58, 214 CLR 422.

[7] Western Australia v Ward [2002] HCA 28; 213 CLR 1.

[8] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] 1606 FCA (18 December 1998) at 129 per Olney J.

[9] Above n. 1, at 60 per Brennan J.

[10] Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (13 December 2005).

[11] Atkinson, W., “Balancing the scales of Indigenous land justice in Victoria”, Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [2006]
(Volume 3, No.5) http://ntru.aiatsis.gov.au/ntpapers/ip05v3.pdf, p. 6.

[12] Bennell v State of Western Australia [2006] FCA 1243 (19 September 2006).

[13] De Rose v State of South Australia (No 2) [2005] FCAFC 110.

[14] Human Rights and Equal Opportunity Commission, Native Title Report 2006, April 2007, p. 43.

[15] “Native Title recognised in Cape York”, Sydney Morning Herald, July 26, 2007, http://www.smh.com.au/news/National/Native-title-recognised-in-Cape-York/2007/07/26/1185339142189.html accessed August 2, 2007.

[16] HREOC, above n. 14, p. 43.

[17] Australian Bureau of Statistics, Population Distribution: Aboriginal and Torres Strait Islander Australians 2001, ABS cat. no. 4705.0, Commonwealth of Australia, Canberra, 2002, p. 12., available at: http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/85AB4A6668629B77CA256BE400026A25/$File/47050_2001.pdf, accessed 3/7/07. 

[18] For instance, land held under the Land Rights Act (Northern Territory) 1976, which comprises over 40% of land in that region, and is held with a greater degree of legal ownership than Native title land, being equivalent to inalienable freehold communal title.

[19] Yarmirr v Northern Territory (Croker Island) (1998) 156 ALR 370, at 122.

[20] Yanner v Eaton, [1999] HCA 53 (7 October 1999).

[21] O’Hair, R. B., “Mabo and Land Rights - Searching for a Golden Thread” in M A Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution, St Lucia: University of Queensland Press, 1993), pp. 70-71.

[22] Above n. 11,  p. 3.

[23] Mansell, M., “The Court Gives an Inch But Takes Another Mile”, (1992) 2 ALB 5, 6.

[24] HREOC, above n. 14, p. 30.

[25] HREOC, above n. 14, p. 30.

[26] HREOC, above n. 14, p. 26.

[27] Kennedy v Queensland [2002] FCA 747 (13 June 2002), at 32 per Sackville J.

[28] Above n. 11, p 6.

[29] Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129.

[30] HREOC, above n. 14, p. 31.

[31] HREOC, above n. 14, p. 32.

[32] HREOC, above n. 14, p. 9.

[33] HREOC, above n. 14, p. 25.

[34] Agius, P., J. Davies, R. Howitt and L. Johns (2001) “Negotiating Comprehensive Settlement of Native Title Issues: building a new scale of justice in South Australia”, Native Title Representative Bodies Legal Conference, Townsville, December 2002, http://ntru.aiatsis.gov.au/ntpapers/IP20v2.pdf, 6p. 1-2

[35] O’Brien, K., Chaney retires after 12 years”, The 7:30 Report, 19/4/07, http://www.abc.net.au/7.30/content/2007/s1901893.htm, accessed 3/8/07.

[36] “Native Title Chief to Quit”, ABC News, 14 Mar, 2007, http://www.abc.com.au/news/stories/2007/03/14/1871020.htm, accessed 1 Aug 2007.

[37] O’Faircheallaigh, C., 2003, ‘Native Title and Agreement Making in the Mining Industry: Focusing on Outcomes for Indigenous Peoples’, Land, Rights, Laws: Issues of Native Title, Vol. 2, No. 25, Native Title Research Unit, AIATSIS, Canberra, http://ntru.aiatsis.gov.au/ntpapers/ipv2n25.pdf, pp. 2-5.

[38] Agius, above n. 34, pp. 1-2.

[39] SA ILUA Statewide Negotiations, South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations Strategic Plan 2006-2009, January 2006, http://iluasa.com/dl/ILUA_FINAL.pdf, p. 1. accessed 1 August 2007.

[40] Dixon, I., P. Agius and P. Hall, “Implementing the South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations, paper presented at the AIATSIS Conference June 2005, http://ntru.aiatsis.gov.au/conf2005/papers/DixonI_AgiusP_HallPpaper.pdf, p. 2

[41] Ibid.

[42] SA ILUA Statewide Negotiations, ILUA Templates, http://iluasa.com/info/templates.asp accessed 1 August 2007.

[43] Dixon, I., “SA Native Title Resolution (previously SA ILUA Statewide Negotiations)”, Presentation to the South Australian Natural Resources Management Council Board, 1 June 2007, http://www.dwlbc.sa.gov.au/assets/files/NRM_Council_IanDixon_presentation.pdf, p. 9, accessed 1 August 2007.

[44] Agius, P., and R. Howitt, “Different Visions, Different Ways: Lessons and challenges from the Native title negotiations in South Australia”, http://ntru.aiatsis.gov.au/conf2003/papers/agius.pdf, pp. 4-5.

[45] O’Faircheallaigh, C., “Process, Politics and Regional Agreements”, Land, Rights Laws: Issues of Native Title, Regional Agreements Issues Paper 5, Native Title Research Unit Issues Papers, AIATSIS, [1998], http://ntru.aiatsis.gov.au/ra/RAIP5.pdf, p. 9.

[46] Agius et al, above n. 45, p. 1, fn 1.

[47] Ibid, p. 1.

[48] Ibid., p.7.

[49] Ibid., p. 7.

[50] Ibid., pp. 7-8.

[51] Ibid., p. 2.

[52] Dixon, above n. 44, p. 9.

[53] SA ILUA Statewide Negotiations, South Australian Indigenous Land Use Agreement (ILUA) Statewide Negotiations Strategic Plan 2006-2009, January 2006, http://iluasa.com/dl/ILUA_FINAL.pdf, accessed 1 August 2007.

[54] “Working Relationship Agreement between the State Aboriginal Heritage Committee and the Congress of Native Title Management Committees”, 11 July 2007.

[55] Weatherill, J.,  “Agreement puts Aboriginal heritage first”, Media Release 11 July 2007, http://www.premier.sa.gov.au/news.php?id=1877

[56] Dixon, above n. 44.

[57] Dixon et al, above n. 41, p. 13.

[58] Agius, Q., “Wattle Point Developers Desecrate Protected site”, open letter 26/1/05, http://www.adjahdura.com.au/media-desecrate.site.htm,

[59] Agius, Q., “Wattle Point Developers Breach Aboriginal Heritage Act - the Nightmare continues”, Media Release on behalf of the Narungga Heritage Committee, 15/3/05, http://www.adjahdura.com.au/media-nightmare.continues.htm

[60] Ibid.

[61] Agius, Q., “Traditional Owners SOLD OUT by SA's first major ILUA  (Indigenous Land Use Agreement)”, media release 19/10/05, http://www.adjahdura.com.au/media-ILUA.soldout.htm

[62] Howitt, R., The other side of the table: Corporate culture and negotiating with resource companies”, ”, Land, Rights Laws: Issues of Native Title, Regional Agreements Issues Paper 3, Native Title Research Unit Issues Papers, AIATSIS, [1997], http://ntru.aiatsis.gov.au/ra/RAIP3.pdf, p. 2.

[63] HREOC, above n. 14, p. 42.

[64] Victorian Traditional Owner Land Justice Group, “Towards a Framework Agreement between The State of Victoria and the Victorian Traditional Owner Land Justice Group”, Framework Agreement, Discussion Paper, Revised after LJG meeting on 26 August 2006, http://www.antarvictoria.org.au/documents/FrameworkAgreement21July06.pdf

[65] Ibid., pp. 7-8.

[66] Ibid., p. 8.

[67] Behrendt, L., “Bargaining on More than Good Will: Recognising a Fiduciary Obligation in Native Title”, Land, Rights, Laws,: Issues of Native Title, [1999] (Volume 2, No. 4, ), http://ntru.aiatsis.gov.au/ntpapers/IPv2n4.pdf

[68] Ibid., pp. 3-4.

[69] McLaughlin, S., “Toward a Coherent Claim Strategy: Developing a Framework Agreement in the Northern Rivers Region of NSW”, [1999] ILB vol 4, issue 21, p 18 ff.

[70] “PM accused of Black land grab”, Sydney Morning Herald, July 9, 2007, http://www.smh.com.au/news/national/pm-accused-of-black-land-grab/2007/07/09/1183833415790.html, accessed 3 Aug 2007.

[71] O'Faircheallaigh, C., ‘Negotiating Major Project Agreements: The 'Cape York Model', AIATSIS Research Discussion Paper No 11, Canberra, 2000, http://www.aiatsis.gov.au/__data/assets/pdf_file/5578/DP11.pdf

[72] Agius et al, above n. 34, p. 3.

[73] De Soyza, A., “Engineering Unworkability: The Western Australian State Government and the Right to Negotiate” Land, Rights Laws: Issues of Native Title, Issues Paper series, Native Title Research Unit Issues Papers, AIATSIS, [1998] (No. 26), http://ntru.aiatsis.gov.au/ntpapers/IP26web.pdf

[74] “Aborigines’ demands ‘blackmailing’ miners”, Mining Journal Online, August 3, 2007, http://www.mining-journal.com/Breaking_News.aspx?breaking_news_article_id=3366, accessed 3/8/07.

[75] Hagan, S., “Chaney drops Native title tribunal”, Online Opinion, 19/4/2007,   http://www.onlineopinion.com.au/view.asp?article=5717, accessed 12/7. See also above n. 36.

[76] “PM accused of Black land grab”, Sydney Morning Herald, July 9, 2007, http://www.smh.com.au/news/national/pm-accused-of-black-land-grab/2007/07/09/1183833415790.html, accessed 3 Aug 2007

[77] Behrendt, L., “Blood from a stone”, Arena Magazine, Issue 60, Aug-Sept 2002, http://www.arena.org.au/ARCHIVES/Mag%20Archive/Issue%2060/features_60_2.htm, accessed 3 Aug 2007.


[78] Central Land Council (Northern Territory), “CLC welcomes ATSIC reform”, undated, (2004), http://www.clc.org.au/media/releases/undated_atsic.asp

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