COEXISTENCE -
NEGOTIATION and CERTAINTY
Indigenous Position in Response to the Wik Decision and
the Government's Proposed Amendments to the Native Title Act (1993)
Prepared by the National Indigenous Working Group on Native
Title
April 1997
CONTENTS:
Executive Summary
Introduction
Key Principles
1. Pastoral Leases and Coexistence
1.2. NIWG Proposal to Address
Co-existence
1.3. Protection of Rights
of Native Title Holders
1.4. Protection of Rights
of Pastoralists
1.5. Resolution of Coexistence
Issues
2. Amendments to the Native
Title Act
2.1. Threshold Test
2.2. Right to Negotiate
2.3. Agreements
2.3.1. Regional Agreements
2.3.2. Site Specific Agreements
2.4. Enhance role of Representative
Bodies
2.4.1. Recognition
2.4.2. Functions
2.4.3. Accountability
3. Validation of Mining and Other
Interests
4. Indigenous Economic Empowerment
Package
5. Fast Tracking Native
Title on Aboriginal Reserves and Leases
6. Heritage Protection
Conclusion
EXECUTIVE SUMMARY
The Government proposes many amendments to the Native Title Act which
should be negotiated with the National Indigenous Working Group on Native
Title.
The Indigenous position addresses proposals both for a legislative response
to Wik and the Government's amendments to the Native Title Act.
The National Indigenous Working Group negotiation position is based on
these key principles:
- Respect for property rights of all titleholders on a non-discriminatory
basis
- The principles of non-discrimination, as set out in the Racial Discrimination
Act 1975, must be respected
- No extinguishment of native title without informed consent of native
titleholders
- Continuing protection of native title under the Native Title Act
- No de facto extinguishment of native title by
- unreasonable threshold test for the acceptance of claims
- minimisation of native title rights through codification
- "physical connection" tests
- imposition of sunset clauses on claims
- precluding towns, cities and waterways from claims or the right to
negotiate process
- Native titleholders have a right to negotiate over development on native
title land.
The NIWG believes that Indigenous people must have the right to negotiate
changes which affect their fundamental legal rights.
- Coexistence of rights on pastoral leases
The Indigenous position recognises the legitimate rights of all parties
and confirms the rights of pastoralists and native titleholders. Coexistence
issues can be best resolved by negotiated agreements.
The proposal to broaden permitted land uses on pastoral leases under a
definition of primary production will effectively upgrade leases while
blocking and extinguishing native title.
- Amendments to the Native Title Act
- Threshold Test
The NIWG agrees that native title claimants should have to make out
a reasonable case before lodging a claim, but the Government's proposed
test is too extreme.
- Right to Negotiate
The right to negotiate enables Indigenous peoples to protect their
culture, and participate in development and economic activity. The Government
proposes to severely limit this right and in some cases, remove it altogether,
such as for mining lease renewals. The NIWG opposes amendments that propose
unreasonable Ministerial intervention and powers, exclusion of spiritual
attachment in assessing interference of developments in community life,
shortening negotiating times and excluding profit sharing arrangements
from arbitral determinations.
- Agreements
The NIWG has developed a model which is flexible, simple and efficient
for negotiating regional and site-specific agreements and which provides
certainty for all parties.
- Indigenous Representative Bodies
The NIWG is proposing enhanced recognition of and functions for Representative
Bodies by providing statutory mandatory functions for them under the Native
Title Act. The Government's amendments won't address the problem of multiple
claims being lodged.
The Government proposal for a process of re-recognition of Representative
Bodies will also cause problems and uncertainty. The proposed functions
of Representative Bodies will not achieve good outcomes.
The NIWG supports accountability of Representative Bodies, but the further
accountability requirements the Government wants to impose will be oppressive
and unproductive. The current system is workable and already meets general
standards of accountability. Proper accountability is best achieved by
making Representative Bodies fully answerable to their constituents.
- Validation of Mining and Other Interests
The NIWG rejects blanket validation of potentially invalid interests granted
in land since 1 January 1994.This would reward flagrant breaches of the
law by some Governments. Validation of such grants should be through the
Future Act regime of the Native Title Act or through regional agreements.
The Working Group proposes a process for speedy and fair resolution of
compensation claims.
- Indigenous Economic Empowerment Package
Native Title rights are the key to addressing the economic disparity
between Indigenous and non-Indigenous Australians which will otherwise
widen significantly in the next decade. The NIWG has developed an economic
package to establish a capital base to enable indigenous participation
in development and investment on native title lands. Such an economic package
cannot be seen as any form of compensation for loss or impairment of native
title rights.
- Recognition of Native Title on Aboriginal Reserves and Leases
Procedures for recognising native title on land already set aside for
Aboriginal use should be streamlined. The new system will be cheaper and
provide for compensation for non-indigenous interests.
- Heritage Protection and Native Title
Heritage protection laws are vital for the protection of native title rights.
The NIWG wants a national model for heritage protection with criteria for
minimum standards for complementary State standards as recommended in the
Evatt report on the review of Commonwealth Aboriginal heritage protection
legislation.
Indigenous Position in Response to the Wik Decision and
the Government's Proposed Amendments to the Native Title Act (1993)
Introduction
This submission of the National Indigenous Working Group (NIWG) outlines
the Indigenous position in relation to legislative response to the Wik
decision and the Government's proposals to substantially amend the Native
Title Act.
The submission provides an overview of the main components of the Indigenous
position and sets out the basic principles underlying the position.
The NIWG believes that there is a need for certainty and equitable outcomes
for native title holders as well as for other landholders. The legitimate
needs for certainty in land management and development is recognised. The
NIWG proposes practical arrangements for effective land management regimes
which respect the rights and interests of native title holders and which
do not derogate from those rights.
The submission is the result of extensive consideration by the NIWG comprising
ATSIC, Native Title Representative Bodies, and other key indigenous stakeholders
since the Government announced its intention to amend the Native Title
Act in early 1996. This process has been difficult because of the Government's
preference to merely consult about changes to native title rather than
to negotiate. The NIWG believes that Indigenous people have a right to
negotiate changes to their fundamental legal rights.
The submission also reflects the serious endeavours of Indigenous parties
not only to protect their position, but also to search for compromises
which will assist other stakeholders to obtain certainty and workability.
The NIWG has repeatedly stated its respect for the legitimate rights
of pastoralists consistent with Wik and is supportive of amendments to
the NTA which will deliver efficient operation of the Act.
The proposals as set out in the draft outline produced by the Government's
Wik Task Force, violate the principles presented by the NIWG to the Prime
Minister on 6 February and 23 March 1997. Particularly the proposals will
necessitate discrimination contrary to the requirements of the Racial Discrimination
Act and the International Convention on all Forms of Racial Discrimination
(CERD).
We will not support the upgrading or enhancement of leases without satisfactory
legal measures supporting our legitimate property rights. This is only
fair.
Indigenous people are strongly opposed to proposals to limit the right
to negotiate and are concerned about validation of titles issued since
1 January 1994 in contravention of the provisions of the Native Title Act.
It is not accepted that the right to negotiate can be truncated by providing
for Ministerial intervention and by shortening time as proposed in the
Government's amendments. There must be fair dealing in relation to such
matters.
It is recognised that a higher threshold is the strong desire of industry
and Government. However, a new threshold test has to be fair, and not preclude
legitimate native title claimants from gaining access to the procedures
and protections provided by the Act. Some of the current proposals have
the effect of denying procedural protection to native title holders by
the imposition of onerous threshold requirements. These need to be further
considered and negotiated with Indigenous people.
The submission does not attempt to cover all matters arising from Wik and
the Government's amendments package. It concentrates on the main issues
facing Government, industry and indigenous interests and which will make
up the parameters of the Government's response to these issues, especially,
but not restricted to, Wik outcomes.
The submission covers the following matters:
- coexistence of native title with pastoral leases;
amendments to the Native Title Act:
- threshold test;
- the right to negotiate;
- agreements;
- functions and accountability of Representative Bodies
- validation;
- Economic Empowerment Package;
- Fast tracking of native title on certain categories of land;
- heritage protection.
Legislation on its own will not resolve all matters arising from the
coexistence of native title with the statutory rights to land enjoyed by
other Australians. Native title is a common law right and can not be unilaterally
defined by Parliaments. At the end of the day Indigenous people are entitled
to have their native title declared by the courts. However, the NIWG strongly
urges the resolution of coexistence issues through local and regional agreements,
guided by a national framework.
Legislation provides a base which guarantees the rights and obligations
of parties, and sets the parameters for the relationships which will constitute
coexistence. However, a legislative response to Wik which is not fair and
balanced will only encourage dispute and litigation which will be counter
productive in terms of the certainty which is being sought.
The NIWG is mindful of the Prime Minister's commitment to seek responses
which deliver predicability and justice to all concerned. Predicability
and justice for Indigenous interests requires the Government to accept
that native title is of fundamental importance in dealing with the impact
of dispossession. Native Title provides the way forward for Indigenous
economic and social development and participation on a full and equal basis
in the life of the nation.
Key principles
The following principles are fundamental to a fair resolution of Wik
and Native Title issues. They must be the non-negotiable foundation principles
for legislation:
- Respect for the property rights of all title holders (including native
title holders) on a non-discriminatory basis;
- The principles of non-discrimination set out in the Racial Discrimination
Act 1975 and binding on Australia under CERD and under international law
must be fully respected; and
- No extinguishment of native title by the Commonwealth, States or Territories
without the informed consent of native title holders. On 30 October 1996,
a bipartisan resolution was carried unanimously in the Commonwealth Parliament
on the motion of the Prime Minister. The resolution stated that "This
Parliament reaffirms its commitment to the right of all Australians to
enjoy equal rights and be treated with equal respect regardless of race,
colour, creed or origin." Extinguishment of one group's common law
rights on the basis of race will violate this historic commitment;
- Continuing protection of native title under the Native Title Act, and
maintenance of ongoing national standards for dealing with native title
through:
- the operation of the National Native Title Tribunal;
- the s. 209 reporting function of the Aboriginal and Torres Strait Islander
Social Justice Commissioner; and
- Commonwealth approval of State or Territory structures set up in accordance
with national standards.
- No de facto extinguishment of native title by:
- an onerous threshold test for the acceptance of claims;
- or a minimalist codification of native title access and usage rights;
- requiring Indigenous people to demonstrate a current physical connection
to land in order to enjoy native title;
- imposing a sunset clause on claims; and
- precluding towns and cities from being claimed.
- native title holders have a right to negotiate over development on
native title land.
1. Pastoral
Leases and Coexistence
The NIWG has made clear its acceptance of the existing rights of pastoralists
to operate and develop their leases without the requirement to negotiate
about such uses. Indigenous people have accepted the Wik position that
the existing rights of pastoralists' will prevail wherever they may conflict
with native title rights.
If there is a need to clarify the ability of pastoralists to carry out
development activities under their leases, the NIWG policy position is
that it is prepared to support appropriate legislative confirmation of
the existing legal rights of pastoralists under their leases.
This issue is basically one of legislative drafting. The NIWG is concerned
that the mechanism to be used to confirm existing pastoral lease rights:
- does not effect any impairment or extinguishment of native title contrary
to the position at common law, and
- that there be a reciprocal confirmation of the existing native title
rights of native title holders within leaseholds including validated perpetual
leaseholds and lease renewals.
The NIWG wishes to work closely with Government in the drafting of the
appropriate mechanism.
The NIWG recognises that in addition to the question of confirmation of
existing rights under pastoral leases there is the question of the definition
of these rights. The NIWG believes that the definitional problem has been
overstated. Pastoral lease legislation in South Australia, Northern Territory,
Western Australia and New South Wales is sufficiently clear in relation
to leaseholder rights. It appears that Queensland legislation poses some
definitional problems.
In dealing with this issue, the Government's Wik Task Force has proposed
that the 'future act' provisions of the NTA will be disapplied in relation
to any activities falling within the definition of 'primary production'
in the Income Tax Assessment Act. This is the widest definition possible.
The approach will allow state and territory governments to immediately
amend leasehold legislation to grant full primary production rights to
leaseholders (who presently do not have such rights) and thereby extinguish
native title.
Clearly this is an unacceptable model. The payment of compensation resulting
from extinguishment does not justify this approach.
Apart from native title there are important public policy issues raised
by the prospect of pastoral leases becoming de-facto freehold titles, not
the least of which is the issue of environmental sustainability and the
prudent management of Australia's rangelands.
1.2 NIWG Proposal to Address
Co-existence
The NIWG believes it is possible to develop an approach which avoids
a lease-by-lease assessment and which does not expose native title to arbitrary
extinguishment by State and Territory Governments taking advantage of the
very wide Income Tax Act definition of primary production.
The NIWG proposal for coexistence comprises the following principles:
1.3 Protection of the
Rights of Native Title Holders
- Guarantee under the NTA that the rights of native title holders under
all forms of pastoral leases, including validated perpetual leases and
renewed leases are confirmed in the same way as the rights of leaseholders;
- Where the threshold test has been satisfied and a claim has been registered
native title holders should have immediate rights of access set out in
the Native Title Act.. Such access rights will include the right to hunt,
fish and camp; the right to access sites of significance; the right of
access for traditional ceremonies; and protection of cultural heritage
- Existing State or Territory statutory access rights should not be displaced
by the access regime provided by the NTA;
- Native title holders should not be precluded from seeking further expansion
of their native title rights either through agreement processes or through
the Federal Court. The registration of a claim will entitle native title
holders to the right to negotiate processes under the NTA; and
- Native title holders should have heritage protection guarantees and
a right of access in relation to this protection.
1.4 Protection of the
Rights of Pastoralists
- Guarantee under the NTA that the rights of pastoralists under all forms
of pastoral leases, including validated perpetual leases and renewed leases
are confirmed in the same way as the rights of native title holders;
- A process for the Commonwealth Minister to classify the activities
authorised or permitted under the various forms of pastoral leases; and
- A process for the Commonwealth Minister to exempt certain acts or classes
of acts, ancillary to the purposes of pastoral leases, from negotiation
requirements with native title parties, as long as the act or acts will
have minimal effect on native title, and there has been proper consultation
about the proposed exemption. See the analogous provision in s. 26 (4)
of the NTA.
1.5 Resolution of Coexistence
Issues
- The approach to coexistence should encourage the early settlement of
native title claims so that pastoral leaseholders, governments and resource
developers know who they are supposed to deal with;
- Site-specific and regional agreement processes should be seen as the
principal means of resolving coexistence issues;
- Consideration should be given to "off-the-shelf" options
for coexistence to be available under the NTA which parties (governments,
native title holders and pastoral leaseholders) can voluntarily adopt;
- Where land clearing, tourism, taking of natural resources and change
or upgrade of tenure is proposed in cases where the pastoralist does not
have an existing right to undertake such activities or to change their
tenure arrangements native title holders should be entitled to 'future
act' procedures under the NTA;
- There should be opportunities for diversification in leases through
agreement processes underpinned by a 'future act' procedure; and
- Native title holders would need to satisfy an enhanced threshold
test but not the extreme test set out in the current amendments .
2. Amendments
to the Native Title Act
The Government has proposed comprehensive and extremely complex amendments
to the Native Title Act through the amending Bill of 27 June 1996 and its
Exposure Draft of 8 October 1996. The NIWG will only make reference to
three substantial areas covered by the proposed amendments. Other matters
contained in the proposed amendments will be discussed with the Government
in conjunction with the matters contained in this paper.
2.1 Threshold test
The NIWG proposes a new threshold test. It is higher than that set
out in the Amendment Bill introduced by the Labor Government in 1995 but
it does not include some elements of the current amendments. Problems posed
by the Government's current amendments include:
- The need to establish each of the native title rights and interests
claimed, thus creating the potential for the whole claim to fail even if
certain lesser rights can be established;
- The requirement to provide details of the current use of land or waters
by native title claimants. This presumes a current physical connection
to the land under claim which is not a known common law requirement; and
- The proposal that claims over ordinary title, residential, commercial,
agricultural and perpetual leases (other than pastoral) will not be accepted;
The NIWG proposes respectively that:
- The Registrar be expressly empowered to amend (to read down) the claim
to cover those rights established on a prima facie basis;
- A general description of the factual basis of the claim be provided,
comprising:
- claimants' (and predecessors') association with the claimed area;
- existing traditional laws and customs underpinning the claim;
- continuity of title in accordance with traditional laws and customs.
It is agreed that claims over ordinary title and leases conferring exclusive
possession will not be registered. However, Crown to Crown, or Crown to
Statutory Authority freehold grants and freehold title held by, or on behalf
of, Aboriginal people are to be excluded from the threshold test amendments.
The NIWG does not accept that a claim should fail because of previous expired
tenures. In addition, the NIWG proposes that:
- the Registrar have the power to extend the 3 month period for registration,
where claimants have lodged within the 3 month period but the Registrar,
has been unable to deal with the application; and
- Information supplied by governments be limited to information relevant
to extinguishing acts.
Further details of the full proposal for a strict threshold test developed
by the NIWG are available for discussion with the Commonwealth Government.
2.2 Right to Negotiate
The current amendments severely limit the right to negotiate and, in
some cases, remove it all together. This contravenes the agreement embodied
in the Native Title Act negotiated between indigenous people and the Commonwealth
Government. They contradict previous agreements with Australia's indigenous
peoples and international human rights principles and obligations.
The changes significantly reduce the rights of indigenous people to
control activity on their land, undermines common law principles of native
title and go well beyond any requirements for workability.
The right to negotiate principles in the Act have provided many Aboriginal
people with a real right for the first time to directly control the protection
of their culture, to be involved in economic activity through agreements
which deliver employment and wealth generation opportunities and allowing
them to control negative social impacts related to these developments.
The Act has therefore provided an incentive for indigenous people to constructively
engage in economic development proposals.
The amendments propose to exclude mineral exploration and other acts from
the right to negotiate and replace it with State and Territory schemes.
In addition the right to negotiate will not apply to apply to mining renewals
therefore denying native title holders the ability to negotiate over the
terms and impacts of mining. Attempting to redesign the right to negotiate
process for non-pastoral development such that it is consistent with pastoralists'
rights is contrary to native title rights.
The NIWG will oppose these changes.
Further, the NIWG considers the following proposals to be unjustifiable:
- Ministerial intervention prior to the completion of the right to negotiate
process;
- Ministerial intervention during the arbitration process;
- the exclusion of spiritual attachment as a consideration in assessing
interference with community life for the purposes of 'expedited procedure'
applications;
- the shortening of the current negotiation time frames;
- the proposal to exclude profits from determinations made by arbitral
bodies; and
- the proposal to allow the Minister to exempt from the right to negotiate
an acquisition of land by government for a third party privately developing
so-called public infrastructure.
2.3 Agreements
The national indigenous bodies developed an Indigenous Land Use Agreements
(ILUA) model which was submitted to Government in 1996. Some aspects of
that proposal were incorporated into the Government's amendments.
The NIWG has refined this earlier model to accommodate the post Wik issues
based on the ILUA principles to provide for the comprehensive resolution
of native title matters through agreements. The model provides for regional
and site-specific agreements that provide a flexible, simple, efficient
and certain alternative to the costly, claim-based processes contained
in the Native Title Act.
The NIWG is investigating linkages between native title and governance
and service delivery through regional and site-specific agreements and
will be seeking to make a further submission to Government on this matter
in the near future.
2.3.1 Regional Agreements
Regional agreements provide a comprehensive means of resolving coexistence
issues, and future indigenous and non-indigenous land use, without extinguishing
native title and can facilitate social and economic development through
regional or statewide:
- Framework agreements for the negotiation of site-specific agreements
within a region;
- Process agreements regarding the coexistence of native title and non-native
title rights; and
- Agreements dealing with future acts and the validation of past acts.
Matters which can be the subject of regional agreements include:
- Water usage rights; access to beaches and foreshores; fishing rights;
access to and use of national parks, recreation areas and State forests;
development of infrastructure facilities such as roads, railways, pipelines,
electricity transmission lines, dams and ports; and mining and pastoral
rights.
2.3.2 Site Specific
Agreements
Site-specific agreements provide a comprehensive means of resolving
coexistence issues and future indigenous and non-indigenous land use at
a regional or local level and can facilitate social and economic development
through:
- Agreed determinations of native title;
- Process agreements regarding the coexistence of native title and non-native
title rights; and
- Agreements dealing with future acts and with the validation of past
acts.
Site-specific agreements can be negotiated independently or linked to
a comprehensive regional agreement through a framework agreement.
The proposal provides a workable agreements process which protects the
rights of indigenous people while giving certainty to developers and governments
prior to a formal determination of native title. It will:
- Ensure that agreements are enforceable;
- Enable project specific agreements as well as regional or state-wide
agreements about classes of activities or particular procedures;
- Allow greater flexibility in the scope and content of agreements; and
- minimise the risk of expensive litigation.
2.4 Recognition, Functions
and Accountability of representative Aboriginal/Torres Strait Islander
bodies
2.4.1 Recognition
The Government's proposals to enhance the role of Representative Bodies
by providing statutory mandatory functions for them within the NTA is broadly
supported. There is no doubt that a statutory framework, particularly one
which requires Representative Bodies to operate as professional service
delivery organisations, will generate greater confidence in them by all
parties and contribute to greater certainty.
The NIWG agrees there should be one Representative Body for each area and
that the areas should remain as they are. However, the Government proposes
to re-define Representative Body areas, and have each Representative Body
go through a process of obtaining re-recognition of its Representative
Body status. This is likely to be a blatantly political process.
The process of re-recognition will cause a number of problems for Representative
Bodies that are re-recognised as well as for those who rely on the service
and expertise they provide. There will be uncertainty for all parties concerned,
as no one will be absolutely sure they will be dealing with the same body
in twelve months, or even longer. Representative Bodies will be distracted
from achieving outcomes for native title holders and the parties they deal
with.
The NIWG proposes that the Minister makes a determination where a Representative
Body is not satisfactorily performing its functions, and therefore commence
the process of de-recognition. The provisions regarding extension of areas,
variation of adjoining areas, reduction of areas, and withdrawal of recognition
provide enough flexibility for the Government to change the recognition
of Representative Bodies where appropriate.
2.4.2 Functions of Representative
Bodies
The NIWG proposes that additional functions should be given to Representative
Bodies. The most useful of these will be that of protecting the interests
of native title holders, and those of other Indigenous people who are interested
in the particular land, similar to that in s23(b) of the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth).
The amendments do not explicitly give to Representative Bodies the function
of determining priorities in allocating already scarce resources, in order
to perform their functions efficiently. Given the considerable workload
imposed by these mandatory functions and the extra accountability requirements
the NIWG proposes that additional functions should be given to Representative
Bodies.
Under the amendments, Representative Bodies are not to exercise their facilitation
and assistance functions in particular matters unless requested to do so.
Non-indigenous parties will still be able to go outside the Representative
Body direct to the native title holders, who will not then have the protection
of the skills and advocacy of the Representative Body.
The Government's proposed amendments will not address the problem of multiple
claims being lodged.
The certification function is a useful adjunct to Representative Bodies'
current powers. However, there is nothing forcing a properly certified
applicant to continue to act with the authority of all the native title
holders. It would be appropriate to have a re-certification at the point
where an agreement is made through the right to negotiate process.
The proposed functions do not all provide the necessary flexibility for
Representative Bodies to represent their constituents and achieve good
outcomes for all concerned in the native title process. An example is the
requirement to obtain consent from the native title holders for whom the
Representative Body already acts, if it is to facilitate and assist others
in a matter concerning the same land or waters. Others, such as the notification
function are expressed too broadly.
2.4.3 Accountability
The NIWG supports adequate accountability arrangements for publicly
funded Representative Bodies which are likely to have important statutory
functions to perform on behalf of native title holders. Representative
Bodies are already subject to adequate accountability arrangements.
The requirement for Representative Bodies to provide a process for native
title parties to seek internal review of their decisions is supported.
By enabling Representative Bodies to be accountable internally, actively,
and directly to their constituents, Government will achieve the accountability
it seeks to impose externally.
However, the Government's proposals duplicate existing ATSIC and other
financial and accountability arrangements for Representative Bodies, which
are already daunting. These further accountability requirements will be
oppressive and will detract from accountability and performance.
The Commonwealth is proposing that the functions of Representative Bodies
be subject to internal review, investigation, report and possible Ministerial
sanction, in addition to administrative review by the courts and the Ombudsman.
Further, there is the potential for ATSIC, the Office of Evaluation and
Audit, the Registrar of Aboriginal Corporations, state authorities and
professional regulatory bodies to become involved. The multiple layers
of agencies directed at delivering accountability will undermine the protection
of native title. The current, single line of accountability is the proper
and desirable approach, and meets general standards of public accountability.
In addition, the proposals place significant control of, and involvement
in, Representative Bodies in the hands of the Minister, which is highly
inappropriate given the Commonwealth is a significant stakeholder in native
title and party to a number of native title matters. The Minister should
not make funding decisions. Nor, given the controversial and political
dimensions of native title, should the Minister be placed in a position
of potential leverage over Representative Bodies. The NIWG opposes such
provisions.
To proceed with the new accountability measures in their present form will
be a mistake. These amendments need further careful consideration, taking
into account the views of the NIWG.
The NIWG opposes proposals that discriminatively prevent Aboriginal and
Torres Strait Islander Legal Services (ATSILS) from holding Representative
Body status, or which prevent a Representative Body which is also and ATSILS
from conducting any litigation in which their solicitors are lawfully and
properly instructed to act.
3. Validation of
Mining and Other Interests Granted Without Using the Right to Negotiate
Process
The NIWG is advised by the Government's Wik Task Force that Government's
preferred approach is a blanket validation of all interests granted in
land since 1 January 1994 where those grants may be invalid due to the
failure of governments to follow the 'future act' provisions of the NTA.
A blanket validation is unacceptable to the NIWG. It is unnecessary and
rewards the flagrant avoidance of the Native Title Act's provisions by
some Governments. The basic unfairness is that blanket validation damages
native title rights potentially provides up-front solutions to non-native
title parties, whilst leaving compensation for native title holders to
slow and expensive processes, possibly taking years.
The NIWG view is that some categories of grants have no compelling urgency
or commercial imperatives requiring immediate validation. These include:
- Crown to Crown grants and Crown grants to Statutory authorities that
do not involve the grant of an interest in land where there are third parties;
- Vacant Crown Land where native title may exist;
- Aboriginal held land including Aboriginal Reserves; and
- Grants made over land that was and subject to an existing and accepted
claim.
Validation of such grants should be through the Future Act regime, or
the proposed Regional Agreements process.
The NIWG will be prepared to discuss with Government the categories of
grant to be validated and the mechanisms to ensure that native title parties
are treated fairly and expeditiously in respect of compensation should
such validation proceed.
To avoid the problems of costly and drawn out compensation claims the NIWG
proposes that a process (perhaps via a temporary commission) be established
to provide speedy resolution of claims for compensation where claimant
groups have met the requirements of the enhanced threshold test (see above)
and had their claims accepted for registration.
Such claims should be classed by major and minor impact on native title.
In determining compensation arrangements priority would be given to major
projects on a case by case basis (however, note that this would not effect
the validation already provided). Such compensation could extend to employment
opportunities, training and other benefits (including speedy resolution
of any residual claim after validation of a grant) as well as financial
benefits.
Projects of minor impact could be subject to a general compensation allowance
rather than being considered on a case by case basis.
4. Indigenous Economic Empowerment Package
The National Indigenous Working Group has proposed to the Government
the creation of a capital base to allow equity participation in developments
and investment on native title lands. This capital fund represents the
core of an Indigenous Economic Empowerment package and is intended to benefit
all Indigenous Australians. In doing so, consideration was given to indigenous
Australians being economically disadvantaged and also to the prospect that
the economic disparity with other Australians will worsen significantly
in the next decade.
The package establishes a framework within which Indigenous people can
secure recognition of their rights from governments and other land users,
beneficial outcomes from that recognition, better relationships with governments
and other land users, and more security and certainty in key areas of community
life. Private sector interests will benefit by securing the certainty and
security they seek in the wake of the recognition of the persistence of
native title and from the inducements afforded native title holders to
invest on indigenous held land. In the medium term, the package will reduce
the substantial financial, economic, human and environmental costs imposed
by policies and practices which maintain the status quo of marginalisation
and disempowerment. Specifically, Commonwealth, and also State and Territory
governments will secure benefits in the form of:
- Efficiency benefits from improved policy and service delivery
to Indigenous people.
- Revenue benefits from increased economic contributions from
Indigenous people eg taxation, exports, increased industry productivity
on Indigenous lands, increased flow-on activities in regional economies.
- Outlays benefits from reduced welfare payments as a result of
increased wage employment and other non-welfare incomes.
- Credibility benefits in the international diplomatic and investment
communities from improved human rights performance and provision of investment
certainty.
Implementation of this package would not reduce or supersede Indigenous
people's legal rights.
There are procedures in the Native Title Act such as the right to negotiate
and regional agreements which enable Indigenous people to achieve economic
outcomes while maintaining cultural integrity and social cohesiveness.
The Economic Empowerment Package is a social justice measure that enables
native title holders and other Indigenous Australians who are affected
by development to improve their economic and social circumstances.
The Indigenous Economic Empowerment Package acknowledges the need for substantial
resources to address the legacy of denial of native title rights and the
erosion of Indigenous property rights over many generations.
The package should complement existing Commonwealth structures and programs
that address Indigenous economic development.
A detailed paper is being prepared by the National Indigenous Working Group
which proposes options for funding of an Indigenous Economic Empowerment
Package.
5. A More
Efficient Process for the Recognition of Native Title on Aboriginal Reserves
and Leases (Fast Tracking)
Rather than continue time consuming and expensive claims in the Federal
Court for the recognition of native title on land already set aside for
Aboriginal use, a streamlined procedure is proposed for certain categories
of land.
A paper outlining the proposal was adopted in principle by the National
Indigenous Working Group on Native Title and presented to the Government's
Wik Task Force on 24 March 1997. In essence, it involves:
- the registration of an approved determination of native title once
the Native Title Representative Body has identified all the indigenous
people with a traditional connection to the land;
- the protection of existing indigenous interests in the reserves (including
residential and historical interests); and
- compensation for non-indigenous interests adversely affected by the
determination of native title rights.
Governments will benefit from the reduced cost of the new system and
indigenous people will obtain secure title to their land sooner and access
to the right to negotiate.
Further details of the proposed scheme will be provided during the process
of negotiations with Government.
6. Heritage Protection
and Native Title
Cultural heritage protection as it relates to land and waters is central
to the protection of native title. The international law basis for cultural
heritage protection is to be found in Article 27 International Covenant
on Civil and Political Rights (ICCPR) which states:
Article 27:
In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the right,
in community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own
language.
As such heritage protection laws are vital for the protection of native
title rights and interests. Heritage legislation must provide actual and
legal protection of sites and areas of significance for an indefinite duration.
Heritage protection legislation is required to achieve equality for indigenous
people in the protection of cultural and religious traditions, specifically
as they relate to land and waters. It does so by affording protection and
access to sites and areas of significance in accordance with tradition.
The NIWG calls for a national model for heritage protection which requires
Commonwealth laws with criteria for minimum standards for complementary
state legislation. Section 43 of the NTA provides a model for such a legislative
scheme. The Evatt Report provides a basis for minimum standards for State
legislation.
The NIWG recognises that regional agreements may provide the basis for
site-specific agreements for heritage protection by including a work area
clearance model for site protection.
Conclusion
The NIWG remains committed to negotiating the resolution of native title
issues with the Government. In this submission, the NIWG has set out the
parameters for those negotiations. The Government is requested, again,
to fully engage indigenous interests in a process, with other stakeholders,
to achieve an outcome which provides justice and certainty for everybody.
Adopting the position advanced in this submission provides the basis for
achieving that outcome.
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