Aboriginal and Torres Strait Islander Social Justice Commissioner

Native Title Report January - June 1994

Human Rights and Equal Opportunity Commission

27 April 1995

The Hon. Robert Tickner, M.P.Minister for Aboriginal and Torres Strait Islander AffairsParliament HouseCanberra ACT 2600

Dear Minister

I am pleased to present my first report regarding the operation of the Native Title Act 1993 (Cth) and its effect on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples as required by s.209 of the Native Title Act.

The report covers the period from the date of the commencement of the Act, 1 January 1994, to 30 June 1994.

Yours sincerelyMichael DodsonAboriginal and Torres Strait Islander Social Justice CommissionerThe land is my backbone ... I only stand straight, happy, proud and not ashamed about my colour because I still have land. I can paint, dance, create and sing as my ancestors did before me.

I think of land as the history of my nation. It tells of how we came into being and what system we must live. My great ancestors who live in the times of history, planned everything that we practise now. The law of history says that we must not take land, fight over land, steal land, give land and so on. My land is mine only because I came in spirit from that land, and so did my ancestors of the same land ... My land, is my foundation.

Galarrwuy YunupinguAustralian Catholic Social Justice Council, Recognition: The Way Forward

Introduction

In addition to my responsibilities as Social Justice Commissioner under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I have been given a statutory function in relation to native title. I therefore have a particular responsibility in respect of the very special relationship of Aboriginal peoples and Torres Strait Islanders to our land. This responsibility, under s. 209 of the Native Title Act 1993 (Cth) (NTA), requires me to report to the relevant Commonwealth Minister on the operation of the NTA and its effect on the human rights of Aboriginal peoples and Torres Strait Islanders.

This responsibility primarily involves:

a functional review of the operation of the NTA; and

a consideration of the impact of the NTA on the exercise and enjoyment of human rights of Indigenous Australians.

This, my first report under s. 209, deals with the period from the substantive commencement of the NTA on 1 January to 30 June 1994. The report will therefore focus on the operation and human rights aspects of the NTA in its implementation phase. It attempts to provide an account and analysis of the major issues and events which are connected to the first six months of the life of the Native Title Act and which lie at the heart of native title, irrespective of any strict reporting period.

In pursuing this approach, I have taken a flexible stance to issues arising and events occurring after 30 June 1994. That is, I have regularly commented on relevant issues or events occurring after 30 June, usually where they are linked to some event within the reporting period and my commentary is of greater utility by virtue of taking into account such later developments. For example, a claim for native title by the Waanyi Peoples was lodged with the National Native Title Tribunal (the Tribunal) on 27 June 1994 within the reporting period. Rulings in relation to the acceptance of this application were made by the President of the Tribunal on 15 September 1994 and 14 February 1995. 1 As will be seen, the acceptance of applications, the relevant procedures of the Tribunal and the extinguishment of native title, which were at the centre of these rulings, were key issues during the implementation phase of the report and continue to be so. Accordingly I have dealt with these rulings in this report. However, I have not attempted to comprehensively deal with events outside the reporting period.

Under current arrangements I report on native title to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs. I welcome the opportunity to report to the Minister with responsibility for issues concerning Indigenous peoples in Australia. However, I believe it would be more appropriate for me to report to the Commonwealth Attorney-General. Briefly, this is because of:

the human rights nature of my reporting function and the Attorneys responsibilities and resources in respect of human rights and international law;

the legal character of my task in assessing the legislation as moulded by the common law on native title; and

the efficiency, continuity and consistency of reporting to the Attorney as I do in relation to my general social justice functions under the Human Rights and Equal Opportunity Commission Act.

I intend to seek the agreement of the relevant ministers with a view to my reporting responsibilities on the NTA being redirected to the Attorney-General.

I share a reporting function in respect of the NTA with the Parliamentary Joint Committee on Native Title and with the National Native Title Tribunal. The Parliamentary Joint Committees duties are set out under s. 206 of the NTA and involve consultations and reporting on the implementation and operation of that Act. Additionally, after two years from the commencement of the NTA, the Committee must inquire and report on such things as the effectiveness of the National Native Title Tribunal and the degree of extinguishment and impairment of native title.

Under s. 133, the President of the Tribunal is required to report on the Tribunals management of its administrative affairs and provide financial statements to the Commonwealth Minister. In canvassing the administration of its statutory functions, the 1993/94 Annual Report of the Tribunal necessarily raises a number of the pertinent issues regarding the operation of the Tribunal which are germane to the implementation period of the NTA. 2

It has been suggested that there is unnecessary duplication in the reporting responsibilities under the NTA and that it would be more efficient to have a single review mechanism. 3 I do not agree. Briefly, I believe the Parliamentary Joint Committee provides a useful consultative and monitoring mechanism for the Commonwealth Parliament on a statute that has great significance for all Australians. The Committee is specifically established to assist the Commonwealth Parliament which, since it is responsible for the legislation, has a particular interest in the NTA. The National Native Title Tribunal is reporting on its operations, which is a very specific aspect of the NTA.

Certainly there is overlap between the subject matter that both these bodies and myself might report on namely the operation of the NTA. However, I am uniquely charged with monitoring the legislation in terms of its impact on the human rights of Aboriginal and Torres Strait Islander peoples. I undertake this responsibility as an Aboriginal person and as the Social Justice Commissioner from the perspective of Indigenous Australians. The people of Australia intend that Indigenous Australians will:

...receive the full recognition and status within the Australian nation to which history, their

prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. 4

I believe that all the reporting functions currently provided for in the NTA are necessary to ensure that the Australian community has the opportunity to be informed of the operation and evolution of the legislation and of perspectives and emerging views on native title as recognition of it unfolds. I look forward to continuing my sound and co-operative working relationships with both the Parliamentary Joint Committee and the Tribunal as we carry out our responsibilities.

To assist me to carry out my responsibility I called for submissions in the national press. I also made contact with a number of key stakeholders in relation to native title and established a native title unit to consult, research and advise on native title issues relevant to my functions under the NTA. I have received significant input from the community as to their views and concerns about the NTA and I thank those people and organisations who made contributions to this process. I also wish to thank those people who directly contributed to the compilation of this report. 5

Since I am dealing in this report with fundamental concepts of native title and the implementation of the NTA I have given emphasis to examining and analysing native title in terms of human rights principles as well as reviewing the Act itself and its functioning. I have now established an ongoing capacity within my office to continue this work. I envisage enhancing my future reports with a more comprehensive and detailed reflection of community views. Of course in light of my responsibilities I will continue to pay particular attention to Indigenous opinion and concerns.

I would like to reiterate what I said in my First Report about attempting to reflect the wide range of Indigenous viewpoints across the country:

I acknowledge to my country men and women that it is not appropriate that my views should be substituted for their own direct voices or that I can presume to speak for any persons particular traditional country. I ask for the support and assistance of the Aboriginal and Torres Strait Islander peoples in undertaking this work. 6

I hope to stimulate discussion with this report and the range of recommendations and suggestions that I make should be seen in this context. That is, I am not in all cases making hard and fast proposals but rather offering an opinion which may develop through consultation.

This report is solely focused on native title. Clearly Indigenous land ownership needs to be addressed in the full context of the concerns of Indigenous peoples for their rights. Inaddition to the Native Title Act, the Commonwealth quite rightly responded to Mabo [No:2] 7 with the Land Acquisition Bill and, following discussions with Aboriginal and Torres Strait Islander representatives, it agreed a Social Justice Package should be implemented. I have taken up the land acquisition issue in a number of forums 8 and I am about to deliver to all Commonwealth Parliamentarians my comprehensive response to the social justice initiative. As a result, I have not dealt with the Land Acquisition Bill or the Social Justice Package in this report.

In my First Report I addressed perspectives on native title at a time when negotiations were reaching high temperatures as the Native Title Bill moved through the Parliament. I focused on thematic aspects of native title as a detailed consideration of native title at that juncture was premature.

In the time that has since elapsed, the Bill has been proclaimed and has been implemented. At the time of writing, in April 1995, complementary validating legislation has been enacted in every State and Territory except Western Australia, where attempts to extinguish native title and replace it with statutory rights of traditional usage have foundered against the bulwark of the Racial Discrimination Act 1975 (Cth).

In addition to the implementation of the NTA, a national tribunal has been established, claims lodged and negotiations are well under way. But strikingly, no determinations recognising native title have been made. Native title has to date only been recognised by the non-Indigenous legal system on the island of Mer.

In many parts of the country native title has been the subject of concerted action by Indigenous communities. Native title has been the source of cohesion and dispute as the opportunity of gaining title has both opened up expectations of the return of country and tensions and wounds around connections to country, family histories and community relationships. As I point out in chapter 2 of this report, the existence of these complexities is a natural consequence of decades of government policy which denied the existence of our ownership of land and promoted forced removal. Native title has spurred governments, industry and others into action so as to cope with the legacy of over 200 years of denial and so as to maintain their claimed dominium over titles.

With Mabo [No:2] and the NTA, native title burst through the countrys consciousness with the force expected from seeds that were for so long in germination. Following the passage of the Act there

was a change in momentum with the unfolding of the struggle to establish and work with newly fashioned procedures. The task was to make sure these procedures accommodated traditional title in the non-Indigenous legal and administrative systems. They confronted the responsibility of absorbing Indigenous aspirations for justice in a community fearful of perceived threats to their titles, such fears are evident from the following newspaper article:

Bill and Marie McKay have more than $230,000 and plans for a peaceful retirement invested in their home at Crescent Head....

The Minister for Land and Water Conservation, Mr Souris, ordered that land on the Goolawah Estate at Crescent Head, 20 kilometres north-east of Kempsey, be withdrawn from sale as it could not guarantee that those sites were safe from land title claims by local Aborigines under the Mabo legislation....

What concerns us the people that bought and built here is that we have not heard anything from the Lands Department about where we stand, [Mr McKay] said....

A spokesman for the Kempsey Aboriginal Lands Council, Mr Colin Campbell, said many of the 2,500 local Aborigines who needed housing were living with uncertainty just as the Goolawah Estate landowners were.

He said the lands council had been seeking land on the Goolawah Estate since the early 1980s. It had dropped a claim to land on the site, in order to smooth the way for development, in return for six blocks which would be developed to house Aboriginal families.

But Mr Campbell said negotiations between Aborigines, Kempsey Council and the Department of Conservation and Land Management had broken down.

It was all agreed before Mabo came on the scene, he said, but no-one wants to talk about it. We feel just like those people out there [on the estate] now who could have a claim against them after they bought the land in good faith.

A spokesman for Mr Souris said that he was unaware of any such agreement and that the Kempsey Aboriginal Lands Council should produce documentation. 9

The period following the enactment of the NTA has given rise to a strong sense of frustration for native title claimants as the prospect of completing successful claims emerged as a distant reality. Instead of gaining recognition of native title, Indigenous claimants found themselves enmeshed in the intricacies of having their claims accepted. They are being asked to demonstrate the strength of their claims just to get in the door!

The communities efforts were not directed towards gaining recognition of native title. Rather, the stage has been firmly anchored in the archives of historical tenure searches as the lottery of extinguishment is played with increasing finesse. At the same time, the financial support required to equip parties to be players in this theatre has been siphoned out of Canberra at a less-than-satisfactory pace.

Native title exists for Indigenous peoples whether or not it is recognised by non-Indigenous law. If this is understood, it should be clear why it is of small comfort to us thatwe are forced to prove our native title in an imposed legal system. We do not come to the process by which native title is recognised devoid of misgivings and the system will have to be sensitive to our situation if the claims process is to meet the necessary human rights standards.

In my First Report, I identified principles that can be useful when reflecting on the framework in which native title is to be recognised:

there should be a maximum degree of co-existence between native title and validated titles;

the unequivocal international obligation is to provide protection and not to simply pay for the considered violation of human rights;

a true application of the principle of non-discrimination recognises and gives equal protection to different ways;

[n]on-discriminatory recognition of native title requires the recognition of the full spiritual, cultural and economic significance of traditional estates and corresponding rights of full enjoyment and

beneficial ownership. 10

These themes inform my discussion in this report on the foundations of native title and the legislative framework in which it is regulated.

The basis for native title is the recognition of our human rights, which requires that respect be given to our relationship to our lands and concepts of land ownership. Native title must be approached from this principled position. When discomfort arises in the non-Indigenous community, with fear of uncertainty, inconvenience and the cost of dealing with native title, we must continually return to an immovable conviction that our human rights to our lands cannot be compromised. The non-Indigenous community must come to accept this. If reconciliation is to be achieved, it is essential that they do. The well-being of a community cannot depend on the dispossession and denial of the human rights of a minority. The perspective that native title is a privilege needs to be corrected and in gaining a sharper focus of the NTA it should be clear to the non-Indigenous community that governments no longer have the capacity to arbitrarily and unfairly extinguish native title so as to remove obstacles to development. Native title is a right it is not a benefit or a privilege.

Attitudes towards the process of the recognition of native title should not be locked into a belief that it is all about a system of resolving competing interests. We must look deeper and beyond the many ways in which the process is played out and align our perspectives to the universal and fundamental human rights principles arising from our dispossession. If those non-Indigenous Australians, secure in their property rights and yet opposed to the recognition of native title, could put themselves in our place of vulnerability, they may well perceive the injustice of the situation and develop a firm commitment to co-operatively erasing that injustice. They will realise that human rights derive from the inherent dignity of all human beings. As the Prime Minister said in Redfern Park:

...it might help us if we non-Aboriginal Australians imagined ourselves dispossessed of land we had lived on for fifty thousand years and then imagined ourselves told that it had never been ours.

Imagine if ours was the oldest culture in the world and we were told that it was worthless.

Imagine if we had resisted this settlement, suffered and died in the defence of our land, and then were told in history books that we had given up without a fight.

Imagine if non-Aboriginal Australians had served their country in peace and war and were then ignored in history books.

Imagine if our feats on sporting fields had inspired admiration and patriotism and yet did nothing to diminish prejudice.

Imagine if our spiritual life was denied and ridiculed.

Imagine if we had suffered the injustice and then were blamed for it.

It seems to me that if we can imagine the injustice we can imagine its opposite.

And we can have justice. 11

I acknowledge again the significance of Mabo [No:2] in recognising native title. However, with the trend of the common law towards the massive extinguishment of our lands, a trend which I most emphatically believe needs to be urgently redressed, Indigenous Australians hold very modest hopes for the capacity of the Native Title Act to deliver justice through the protection of our titles. The likelihood is that our aspirations will be confined to very limited horizons. In this context, is it too much to ask that non-Indigenous Australians work co-operatively with Indigenous peoples to maximise what justice there is to be obtained from the NTA?

A notable feature of the NTA is its dependence on the common law to give substance to its provisions. For example, the crucial definition of native title in the Act is open-ended, it picks up the common law as articulated by the judges in Mabo [No.2] but it does not guide or restrict the development of that definition in future judicial decisions. 12 Another important example of the NTAs deference to common law is that it does not make any provision about the effect on native title of valid past grants of interests. The policy reason is that, because native title is derived from our laws and customs, native title rights must be determined in accordance with the evidence in each particular case and not predetermined by the structure of the NTA. 13 Courts were thought to be better placed than the legislature to grapple with these vital but specific questions about the content of native title and the extent to which it co-exists with other forms of title.This close relationship with the common law is obviously crucial to the operation of the NTA. An examination of the NTA is not possible without consideration of the common law. Consequently my approach to reporting on the NTA is infused with consideration of that branch of the law.

One more introductory remark needs to be made before I review the major elements of the NTA and native title. The High Court, in surveying some provisions of the NTA, qualified its own analysis by saying that any attempt to summarise aspects of the Act will inevitably be inexact, but a summary must suffice to expose the salient features of the Act.... 14 I acknowledge this inevitability and I deal with the NTA in this light and in service of my assessment of its operation and impact on our human rights.

Executive Summary

Chapter 1 The Native Title Act

The Native Title Act 1993 (Cth) (NTA) is a complex piece of legislation. Its provisions constitute an attempt to balance many competing interests. The degree to which the balance reflected in the content of the Act and in its interpretation and application adequately protects the human rights of Indigenous peoples is a central theme of this report.

In chapter 1, I have reviewed the features of the NTA and some significant aspects of its application. In the course of this review I have noted certain areas in the operation of the Act that I believe are of concern. In particular, I have reservations as to whether the claims procedure is operating in a way that provides appropriate access to Indigenous peoples to achieve recognition of their ownership of land. Significant defects in the procedure for seeking a determination of native title include the requirements in the regulations for claimant applications and the existence of the acceptance test, which creates a serious obstacle to even beginning to prove a claim to land. Another important difficulty which has been experienced by Indigenous peoples in attempting to use the claims procedure is the inadequacy of the funding which has been provided to representative bodies.

Although some provisions of the NTA are clearly directed to the protection of native title, the Act also allows for the validation of invalid past acts. This process facilitates the extinguishment or impairment of native title. While the Act sets up a system of compensation for native title holders whose rights are affected by the validation of past acts, it is important to remember that compensation does not undo a breach of Indigenous peoples human rights. It is necessary that the criteria for assessing entitlement to compensation for native title holders are capable of accommodating Indigenous relationships to land. If the criteria fail to recognise unique characteristics of Indigenous land ownership then compensation will be granted on a discriminatory basis.

An important and controversial aspect of the NTA is the right to negotiate. The right to negotiate is a key component of the regime for future acts affecting native title and it is an essential entitlement which allows native title holders some control over activities on their land. Notwithstanding that its application is already limited, there have been many proposals to further restrict its scope and to exclude certain categories of acts from the requirement. I have reviewed some of the proposals to amend the right to negotiate provisions and I consider that there is no justification for changing the provisions at this stage. Many of the concerns that give rise to the proposals to restrict the right to negotiate are exaggerated or misconceived. These proposals should be rejected and the concerns which give rise to them should be balanced against the rights of native title holders to participate in decision making about their land.

The Act anticipates that State and Territory legislatures will enact complementary legislation. A relevant issue in this regard is the recognition of State bodies and the conferral on these bodies of jurisdiction in relation to native title. It is critical that the

institutions that administer native title are able to understand the concerns of Indigenous people and that those institutions operate in a way that is in keeping with the national approach to the recognition and protection of native title.

An issue which I have briefly considered is the complex relationship between native title and statutory schemes for granting land to Indigenous peoples. The recognition of native title is a new and significant event that must be accommodated into these schemes.

Chapter 2 Human Rights

The recognition of native title was more than a recognition of Indigenous property interests, it is also

about the recognition of our human rights. While the tendency has been to examine the impact of the NTA in terms of economic criteria, the true test for the NTA is the degree to which it protects the human rights of Aboriginal and Torres Strait Islander people.

Human rights are those minimum entitlements or standards that are recognised internationally as applying to all people. The Australian Government and many other nations have acknowledged that these rights are inherent, inalienable and universal by becoming signatories to the international instruments that outline minimum human rights standards. Relevant instruments which Australia has ratified include the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Also relevant is the International Labour Organisation Convention No: 169 and the Draft Declaration on the Rights of Indigenous Peoples. While ILO 169 has not been ratified by Australia and the Draft Declaration is not finalised, both documents provide an important gauge as to the standards required to be upheld by the international community. In particular, the Draft Declaration reflects the standards expected by the international Indigenous community.

The provisions of ratified conventions constitute obligations that are binding in international law on the Australian Government and international human rights standards are also influential in the way judges shape the common law. Indeed, one significant motivation for the High Court in rejecting the common law doctrine of terra nullius was to ensure that the common law did not repudiate international standards.

These international instruments are relevant to native title in that they protect property against arbitrary and discriminatory interference and they provide rights to the free exercise of culture. It is the expectation of the international community that Australia will comply with these standards in its treatment of the property rights of Indigenous peoples. The Commonwealth Government appeared to be conscious of its obligation to maintain human rights standards when it passed the Native Title Act but the Act does not offer complete protection of native title and it does not completely guard against the infringement of Indigenous peoples human rights.

Some emerging issues are vital to the question of whether the Act adequately protects Indigenous human rights. The legal definition of native title must be broad enough to fully accommodate Indigenous land relationships and Indigenous law. If the content of native title is not fully consistent with Indigenous systems of land tenure then the treatment of native title will become a means of assimilation rather than recognition. The legal means of proving native title claims must be culturally sensitive, procedures must be accessible and resources available to allow Indigenous peoples to assert and protect their property rights. Extinguishment of native title is a breach of Indigenous human rights. The Government clearly believed that this breach was a necessary compromise in balancing the competing interests. By contrast, I maintain that extinguishment of native title should be kept to a minimum. Co-existence between native title and other interests should be given effect where possible and native title should be understood to revive after the expiry of a granted interest.

Commonly, proper recognition of Indigenous human rights and a non-discriminatory accommodation of native title as a property right will require something other than the treatment of native title as equivalent to title granted by the Crown. For example, where native title holders are compensated it is not sufficient to treat the loss of native title as nothing but loss of an economic resource. Land to Indigenous peoples is not understood solely in economic terms and the criteria for compensation will have to take this into account in order for native title holders to be treated in a way that is genuinely equal to other property holders. In addressing all the specific issues that have arisen and will continue to arise in relation to native title, it is vital to keep the nature of that title in perspective. Native title is a property right. It is the very foundation of Indigenous culture and well-being and the non-discriminatory protection of it is a recognised human right.

Chapter 3 Extinguishment

The question of where native title has been extinguished in the past is fundamental to the operation of the Native Title Act. Because the NTA is focussed on the presence of native title, the processes by which Australian governments can validly extinguish native title is a central issue. Apart from constitutional and statutory limitations on extinguishment, there are also important common law rules which may place limits on the extent to which native title is found to be destroyed by past acts. The extent of common law restrictions on the extinguishment of native title is presently unclear.

The NTA only clarifies when extinguishment has occurred with regard to invalid acts that have been validated in accordance with the NTA. However, most acts which may affect native title are not invalid and therefore do not attract the validation provisions. The effect of these acts on native title is left to the common law. The common law rules about extinguishment are consequently of fundamental relevance to the proper recognition of Indigenous property rights and to the operation of the NTA.

In Mabo [No:2] 1 the High Court was not clear on when the common law considers native title to be extinguished. The ambiguity in this area of law is even more apparent after consideration of common law precedents in other jurisdictions which conflict with the approaches adopted by the High Court. Chapter 3 examines these approaches and the issues involved.

It is clear that native title can be extinguished through legislation that manifests the legislatures intention to extinguish clearly and unambiguously. That much is consistent with case law from Canada, New Zealand, the United States and England. The degree to which native title can be extinguished by legislation which does not reveal such an intention but is merely inconsistent with native title is less clear. In my view, legislation that lacks clear and unambiguous words professing the intention to extinguish does not have the effect of destroying native title rights.

Aspects of the judgments in Mabo [No:2] also suggest that native title may be extinguished by an inconsistent grant. This proposition is at odds with the general common law rule that, while the Parliament can take away anyones property interest, the executive can only do so after it has received clear legislative authorisation. I reject the notion that an inconsistent grant by the executive without legislative authorisation can extinguish native title. If the executive acts without authorisation then it is acting beyond its power and I see no justification for native title to be extinguished as a result. I refer to a number of common law determinations in other jurisdictions to support my view.

Even accepting the suggestion that inconsistent grants extinguish native title, a crucial issue remains to be resolved that is, what amounts to inconsistency? Whether or not a lease extinguishes native title depends upon the way inconsistency is interpreted. It is my view that the most equitable way to apply the test for extinguishment by inconsistency is by only allowing inconsistency to extinguish when the inconsistency exists in fact and not when it is merely a matter of theory. In other words, only when a grant is actually used in a way that is irreconcilable with the continuation of native title should that grant be said to affect native title rights. The requirements that must be fulfilled in order for native title to be extinguished should be strict because the consequence of extinguishment is the destruction of property rights.

The key factors which influence my discussion and conclusions in this chapter are the strong presumption against extinguishment of native title referred to in Mabo [No:2], the common law presumption against extinguishment of property interests without legislative authority, the possible existence of a fiduciary duty imposed on the Crown and the fact that many past grants could well be wrongful at law and to hold that wrongful acts extinguish native title would be manifestly unjust.

It is clear from the discussion in this chapter that the issue of extinguishment and the effect of inconsistent grants on native title is an open legal question. The most important consideration in working out the issues around extinguishment is the people who may be dispossessed as a result of the way the legal principles develop. Regardless of what the common law says, the legitimacy of the extinguishment of native title can only be determined by native title holders themselves. It may be that the High Court will accept the view that native title can be extinguished by inconsistent grants irrespective of any inconsistency in fact. Ultimately, such court decisions and the consequences of them will be judged by the Indigenous people whose rights are affected. If the law clings to abstract administrative dealings to assert that Indigenous peoples property rights have been obliterated, the law will be understandably perceived as barren and devoid of justice.

Chapter 4 The National Native Title Tribunal

The National Native Title Tribunal (the Tribunal) is set up under the NTA and is given significant functions in relation to native title including accepting applications, conducting inquiries about certain applications and dealing with special references from the Commonwealth Minister. In opposed applications the Tribunal directs mediation between the parties. The Tribunal also has a series of functions that require it to make determinations on particular issues. For example, the Tribunal makes determinations in relation to the acceptance test for claimant applications and determines unresolved right to negotiate proceedings.

Given this jurisdiction, it is clear that the Tribunal is a significant part of the regime for the recognition and protection of native title set up under the NTA. Indigenous peoples are concerned that its procedures are accessible, culturally appropriate, flexible and that its determinations are enforceable. On this last issue an important concern is whether the Tribunal structure offends the separation of

judicial and administrative powers. A recent High Court decision that struck down the registration and enforcement of determinations of a non-judicial body in the Federal Court has made finding a solution to this problem urgent. Any changes to the structure of the Tribunal which may be implemented to cure the problems arising from the separation of powers must maintain the goals of providing accessible, affordable and equitable procedures for Indigenous peoples.

I identify some areas of the Tribunals operations in which I believe problems have arisen. In particular, I consider that some of the regulations relating to claimant applications are inappropriate and I consider that the Tribunals requirements for mapping of claim areas have sought excessive detail. One danger that I see in requiring claimants to provide significant detail of their claims before they can gain access to the Tribunal is that in the process the native title claimed will be transformed from an Indigenous land relationship into a foreign and unrecognisable claim defined exclusively in terms of western land tenure systems.

Another area of real concern to me is the existence and interpretation of the acceptance test. In my opinion, the prima facie standard of proof of a claim required of applicants under the NTA is a low-level test. It seems, however, that the standard is being applied in a way that is requiring something more of claimants than the presentation of an arguable case. Claims are being rejected on contentious grounds and the Tribunal seems to have formed the view, without unequivocal legal authority, that whole categories of land are not capable of being claimed. The Tribunal, for example, has a procedure whereby the Registrar will not ordinarily accept a claim to pastoral land that is wider than any reservation contained in a pastoral lease for the benefit of Indigenous people.

If there is to continue to be an acceptance test, then it must operate as a screening test and not as a preliminary trial of the issues in the claim. However, I believe that there is an urgent need to replace the acceptance test by strike out procedures in the Federal Court.

I briefly review the Tribunals mediation function and some notable features of applications to the Tribunal during the reporting period. To put into perspective some of the specificcriticisms I have made of some of the decisions emanating from the Tribunal, I commend the effort that has clearly been made by Tribunal personnel to ensure that it operates in a way that is responsive to the concerns of Indigenous people.

Although it is too early to fully evaluate the Tribunal structure or its functioning, a range of circumstances (such as the High Court decision noted above) has provided an impetus to restructure it. I have commented on a detailed proposal by Justice French, President of the Tribunal, which puts forward changes to the functions exercised by the Tribunal and calls for a wider role for the Tribunal in mediation. Justice Frenchs proposal is broad-ranging and thoughtful and I find much in it to commend. However, I reserve my opinion on important aspects of it pending further consultations.

Chapter 5 Economic and Resource Management Issues

In chapter 5, I review and evaluate some of the responses to the NTA by governments and industry groups. This review is not done for the purpose of comprehensively evaluating the impact of the Act, it is clearly too early to make such an assessment. Its purpose is to canvass the issues and to put some of the more common criticisms into perspective.

The most often-repeated complaints about the NTA from state and territory governments are that it does not resolve the uncertainty surrounding native title and that government procedures have had to be restructured as a consequence of its requirements.

Specifically, governments have complained that their dealings with land are hampered by the future act regime. In my view, the future act regime is not a barrier to future dealings on native title land. In many cases the procedural entitlements of native title holders will be no greater than the entitlements of other title holders. In addition, many types of acts may proceed in the absence of a determination about the existence of native title.

The right to negotiate appears to be a particular irritation to some state governments. For Indigenous people it is a minimum requirement which may enable them to have a say about dealings with their land. The right to negotiate may cause some delay in the granting of interests over native title land but that delay will be reduced as the procedures become more familiar to all participants. It also needs to be recognised that the rights to negotiate can proceed concurrently with lead times arising from some other requirements affecting land use. Any inconvenience caused to governments and applicants for interests in land by the right to negotiate must be balanced against the imperative that Indigenous people be able to freely exercise their rights to land. This imperative must be kept in mind in considering government proposals for exclusions from the right to negotiate.

Although I think that some of the complaints of governments are exaggerated, I do not disagree that the requirements of the NTA may cause some additional delays and impose some new costs on land dealings. However, I believe that whatever the cost and delay, the recognition of native title and the implementation of procedures to accommodate it was overdue. Old procedures that allowed native title to be affected by grants without consultation with Indigenous landholders are no longer acceptable. Certain conduct by governments has contributed to the uncertainty surrounding native title. The refusal by some governments, particularly the Western Australian State Government, to accept the national approach to the recognition of native title has meant that some of the processes of the NTA have not been fully implemented or utilised.

The uncertainty for governments needs to be set against the uncertainty felt by Indigenous peoples. Although Indigenous peoples feel secure about our rights to country in the Indigenous system, until Mabo [No:2] we had no security to enjoy our property ownership in the non-Indigenous system. We suffered continued uncertainty, vulnerability and loss due to the capacity of governments arbitrarily to divest us of our rights. Now that the common law recognises our property rights we still have to prove our claims to ownership under the non-Indigenous system. If the dimensions of native title remain uncertain in the non-Indigenous system then that is a function of that system, it is not attributable to the existence of Indigenous land ownership.

One way that government, in co-operation with native title holders, can reduce uncertainty is by entering into agreements about land development and land management. Governments have not fully explored the possibilities of negotiation and agreement as a means of alleviating their concerns.

The recognition of native title and the enactment of the NTA provides an opportunity for governments to re-evaluate their land management practices with a view to fully including Indigenous peoples. The possibilities of co-operative management range from small-scale co-existence (for example on a pastoral lease) to more extensive projects like joint control of national parklands. There are numbers of examples to indicate that co-existence between native title and other land uses and interests is not only possible but produces beneficial outcomes for the whole community.

Like governments, certain sectors of Australian industry hold the view that the NTA has caused uncertainty about security of land tenure and future land use. In my opinion, the effect of the NTA is to lay down firm procedures for future acts and to validate or allow for the validation of ineffective past grants. Some of the apprehensions of industry can be put down to a misunderstanding of what the NTA actually does. However, certain specific concerns of industry groups are not attributable to ignorance and I have addressed these in detail.

The fishing industry has concerns about the extent of the common law recognition of native title rights to the sea and rights to take sea resources. The industrys concerns are not assisted by the fact that the law on this important issue is still being developed. However, after reviewing the relevant provisions of the NTA, I have come to the conclusion that whatever the extent of native title over sea resources, it is unlikely to interfere with past grants of interests to the fishing industry nor to seriously impact on the grant of new rights.

The mining industry has been particularly vocal in its opposition to the recognition of native title and the procedures introduced in the NTA. It is my opinion that much of the rhetoric from the mining industry is referable to its ideological opposition to a proper acknowledgement of Indigenous land ownership and their protests are not always genuinely directed to perceived defects in the Act. However, some mining companies havemanaged to adopt creative approaches to mining developments on Indigenous land and some agreements that have emerged provide indicators of how to reconcile industry objectives with Indigenous property rights.

The approach of some pastoral industry representatives to native title has been pragmatic. These representatives sought to protect farmers interests by ensuring that an effective and comprehensive scheme for the validation of past grants was instituted. The NTA contains such a scheme and so, since the enactment of the NTA, the pastoral industry has been less vocal and less critical than some other industry groups. One issue that remains a concern to the pastoral industry is the making and acceptance of native title claims to pastoral leases. Pastoralists complain that, on their understanding of the law, these claims are without merit and cause respondents considerable inconvenience, expense and financial hardship. I do not agree that claims to pastoral leases are doomed. My analysis of the law is that native title will co-exist on pastoral leases to some extent. It is my opinion that although the claims may inconvenience farmers, such inconvenience cannot outweigh the rights of Indigenous peoples to attempt to prove their claims to their traditional country.

It is important to put the issues about native title on pastoral leases in the historical context of Indigenous peoples participation in the pastoral industry. When the experience of Indigenous people

in the industry is understood, it is easy to see why the traditional owners of land used for farming will not give up their claims. I believe that the rights of Indigenous peoples and the objectives of the pastoral industry can be reconciled given a genuine will to find mutually acceptable compromises. In attempting to resolve the issues about native title on pastoral leases and other issues about native title, we should strive for a process and an outcome that respects both Indigenous and non-Indigenous laws.

Chapter 6 Community Awareness

The NTA is complicated legislation dealing with complicated legal and social issues. Present indications are that the level of knowledge among both Indigenous and non-Indigenous Australians as to the nature of the common law recognition of native title and the provisions of the Native Title Act is low.

This lack of understanding must be redressed. Both Indigenous and non-Indigenous people must have access to simple and accurate information as to the content of the NTA and the procedures that it establishes. This is particularly so for Indigenous peoples who must rely on the NTA for the assertion and protection of their native title rights. The Act will do little to assist Indigenous peoples if they are not aware of its existence or are not informed as to how they can receive the benefit of it.

While a number of materials have been produced on the operation of the NTA, not all have been designed to be accessible to Indigenous people. They have not been designed to specifically cater for people who have not had a secondary education or who have English as a second language. A significant number of native title claimants and potential claimants fall into this category. Education and community awareness programmes must be flexible enough to cater for the needs of specific communities and be culturally appropriate in order to be effective.Materials that have been produced have not been disseminated to a satisfactory degree among non-Indigenous people who are concerned about native title and the NTA. Given the level of misinformation that exists in the community over the recognition of native title and the NTA, this is most unfortunate.

Greater community awareness is needed, not only so that people gain greater understanding of the NTA, but also to ensure that the Act operates in an efficient and beneficial manner. This is essential given the heavy emphasis placed on mediation and negotiation by the Act and the procedures emerging under it. There is a need for cultural awareness so that dialogue can take place in an environment where there is a reasonable level of understanding and respect for the issues, participants and cultures. The non-Indigenous community must be assisted to understand the history of the dispossession of Aboriginal and Torres Strait Islander peoples and be encouraged to accept the ramifications of native title for Australias land use systems. Without this, the procedures in the NTA are likely to be hampered by unnecessary tensions which have already been exacerbated by misinformation and hysteria on the part of some sections of the community. The effect of this misinformation has been further exacerbated by the lack of accurate and objective information or its limited distribution.

Those in professions associated with the implementation and operation of the NTA must also be adept in cross-cultural communication. This will be crucial in order to make many of the procedures in the NTA work effectively. Poor communication and lack of understanding will result in an outcome likely to be detrimental to all parties concerned.

Unless adequate educative processes are implemented to explain the NTA and to assist those who have to work with it or are affected by it, then the procedures it establishes will be undermined.

The imminent passage of the Native Title Bill will be a great day for Indigenous Australians ... and I hope a great turning point in their recent history.

This has been the longest continuing problem that Australia has faced now for over 200 years recognising that Indigenous people, that native people, had a right to their own soil. It is the end of the great lie of terra nullius and the beginning, we all hope, of a new deal, the basis of social justice and reconciliation. A real basis of reconciliation. ...

It was a very hard process, I think too hard, but nevertheless the Bill will be there, and most people in the state bureaucracies negotiated to try to find a basis of preserving the states

rights in land management while dealing with the broader rights of justice for Indigenous Australians.

In the end, the Government was able to bring together a disparate group of interest groups, and fashion a policy which, I think, will stand Australia in good stead, which will stand the Aboriginal and Islander community of this country in good stead, but which we have now got to make work.

The Prime Minister, Paul Keating21 December 1993

The Native Title Act

1 Introduction

The Native Title Act 1993 (Cth) (NTA) is to a unique degree negotiated legislation. 1 The negotiations involved miners, pastoralists, bureaucrats, members of parliament of all political persuasions and representatives of many Indigenous organisations, such as the Aboriginal and Torres Strait Islander Commission, land councils and Aboriginal legal services.

The result is an Act which is quite obviously complex but with patience it is comprehensible. As Hal Wootten said:

I can understand the Chief Executive of BHP describing it as like reading porridge, but my own reaction was to describe it as a labyrinth. The tracks you have to follow are really good clear tracks, but you sometimes seem to be going backwards and forwards to get to where you have to go, and you may make a few false starts that don't lead you where you thought you were going. In the end, if you are patient, you usually get a pretty clear result. 2

He identifies the problem which many readers have in this way:

One reason the Act comes across as complex and even baffling on a first reading is because of its extensive use of definitions. It is usually possible to get the drift of legislation without studying the definitions. One usually reads a new Act with the mental reservation that definitions will have to be checked to see just where they draw the boundaries around the concepts that are being used, but one expects the general structure, policy and process to emerge from the substantive provisions.

Much of the Native Title Act cannot be read like that. You sometimes learn more about what the Act is doing from the definitions than from what you expect to be the substantive provisions. Some of the definitions contain major statements of policy or process. 3

In this chapter I comment on a range of provisions in the NTA, respond to calls for amendments and generally review the operation of the Act. In doing this I have had to track through many of the provisions in the legislation. Whilst on this journey, in addition to Hal Woottens advice to pay attention to the definitions in the Act, I have found it useful to keep in mind a very clear view of what the Act sets out to do.

The first object of the Act is the recognition and protection of native title. This is principally achieved through the statutory declaration that native title is not able to be extinguished contrary to this Act.4 The provisions in the NTA which permit the extinguishment or impairment of native title constitute an exclusive code. 5 The defeasibility of native title at common law is otherwise removed. The extent to which native title is protected can be gauged by examining the code provided by the NTA and by considering the impact of valid past grants, which are beyond the reach of the NTA. As pointed out by the High Court:

An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act. 6

The second object of the Act relates to the facilitation of future dealings which affect native title. Future acts are either permissible or impermissible. 7 The particular type of permissible future act will determine the effect of that act in relation to native title. In some circumstances, the NTA

imposes requirements that native title holders be given notice of intention to do the future act and that native title holders have the right to negotiate.

The NTA sets up the National Native Title Tribunal (the Tribunal) and establishes a regime for identifying and registering native title interests pursuant to its third object, which is to establish a mechanism for determining claims.

The fourth object of the NTA is to provide for the validation of past acts which may be invalid because of the existence of native title. The manner in which validation would be achieved was possibly the most controversial aspect of the native title negotiations. The NTA directly validates commonwealth grants which may have been invalid because of the existence of native title. It also removes any inconsistency between the Racial Discrimination Act 1975 (Cth) (RDA) and complementary state or territory law, enacted after the NTA, which seeks to validate past acts attributable to the State or Territory. In other words, it cures, or allows for the cure, of all grants which otherwise may have been invalid because of the existence of native title. The effect of validation of past grants will depend upon the nature of the act.

2 Recognising Native Title

Applications

Claimant applicationsNative title is also recognised and protected in the NTA by a process of application for a determination of native title and registration of such determinations. Applications for determinations of native title may be made by Aboriginal and Torres Strait Islander peopleclaiming to hold native title. In the application, the claimant must describe or identify the other people with whom the claim is made but need not name the individuals nor state numbers of native title claimants. 8 The NTA appears to contemplate that an individual or a small number of individuals will represent a communally defined group. It appropriately recognises that Indigenous claimants may not be in a position to identify each person with an entitlement to the native title. (See the section on claimants in chapter 4.)

Non-claimant applicationsThe NTA also provides for applications as to whether native title exists in relation to a particular area to be made by people who are not claiming native title. Such an application may be made by:

a person with an interest in the whole of the area for which the application is being made; or

the relevant Commonwealth, State or Territory Minister.

This type of application is called a non-claimant application. 9 If in response to such an application, a claimant application is lodged then the non-claimant process will be dismissed or come to an end for the area covered by the claimant proceedings. 10 If it is unopposed, then any future act done prior to a determination is valid and there will ultimately be either a determination that native title does not exist or the non-claimant application will be dismissed. 11

Revocation or variationA revised native title determination application for the revocation or variation of an approved determination of native title may be made under s. 13 by:

a registered native title body corporate;the relevant Commonwealth, State or Territory Minister; orthe Registrar of the Tribunal.

Regulations for claimant applicationsThe Native Title Tribunal Regulations 12 set out the form by which applications for determinations of native title must be made. In some areas the regulations exceed the requirements of s. 61 of the NTA, which provides that the application contain such information in relation to the matters sought to be determined as is prescribed.The matters to be determined are:

whether the native title exists;

who holds it;

whether the native title rights and interests confer possession, occupation, use and enjoyment of the land and the waters on its holders to the exclusion of all others; and

the nature and extent of any other interests which may affect the native title rights and interests. 13

The regulations, however, go on to prescribe information which is unrelated to the matters to be determined. They prescribe that the application include:

the description of the area claimed, which must include the Indigenous name of the area. There may be no Indigenous name for the area and the existence of an Indigenous name is largely irrelevant to the existence of native title;

a description of sites within the area. This requirement tends to imply a particular type of Indigenous custom and practice which may not be relevant to claimants or to the matters to be determined;

details of the native title rights and interests possessed under traditional laws and customs of the applicants. This requirement is potentially consistent with the NTA where it is interpreted as requiring no more than the specification of a claim to possession, occupation, use and enjoyment of the land. This was the description of native title rights and interests used in Mabo [No: 2] 14 and I can see no reason why the regulations should require more detail. In some cases this provision has been interpreted as requiring detailed particulars of rights and interests beyond this type of general statement. 15 This interpretation fails to comprehend that native title amounts to full beneficial ownership and not a series of incidents of title. (This and the Indigenous name issue are further discussed in chapter 4.)

A non-discriminatory recognition of native title acknowledges the full spiritual, cultural and economic significance of that title and accords rights commensurate with the content of Indigenous law and tradition. A determination of native title rights, based on a description of incidents of title limited by an assumed list of traditional activities, fails to recognise the true content of native title, which is determined according to our law and custom. While native title is derived from traditional laws, it is not circumscribed by particular traditional forms of use. To do so is to convert a right into a relic as I explained in my First Report. 16It appears to me that the regulations were produced at an early stage in the drafting of the NTA and despite amendment have not been modified to take account of the evolution of the NTA in its passage through the Senate. The regulations require detailed reconsideration and redrafting in consultation with Aboriginal and Torres Strait Islander interest groups.

It is noted that the claimant application form provided by the Tribunal fails to specify the requirement for applicants to list the details of the native title rights and interests possessed under their laws and customs. The relevant section merely refers to the connection between the applicants and the land being claimed. The form also needs to be amended to clearly specify this requirement so as to avoid confusion as to what information has to be provided. 17

Acceptance testUpon an application being made to the Registrar, the NTA imposes an administrative procedure of acceptance which is to be carried out by the Tribunal Registrar and a presidential member (a judge or a former judge). 18 This preliminary step to the application being considered for determination is not one which applies to any other area of the law concerning the recognition or enforcement of property rights. I believe that, because native title claimants are subjected to a procedure that does not apply to the legal assertion of any other property right, the procedure discriminates against Indigenous people.

The closest analogy to the acceptance test in civil proceedings is the susceptibility of claims to strike out proceedings. The availability of a strike out application to a respondent means that a claim may be dismissed prior to hearing. There is also the concern that well-resourced parties, such as governments, could use strike out proceedings to exhaust the resources of applicants. These are clearly justifiable concerns, nevertheless I believe the nature of a strike out proceeding makes it preferable to the acceptance test because:

in a strike out proceeding, in court, questions of law are judicially determined. The acceptance test produces only an administrative determination which may be subject to judicial review;

the onus is on the party seeking to strike out the pleading which is entirely reasonable as they seek

the early intervention of the court. Under the acceptance test the onus is on the applicant who merely seeks to embark upon the process of having their claim determined; and

the power to strike out will only be exercised in plain and obvious cases and the court must be satisfied that the claim is untenable. This reflects the seriousness of the consequences of pre-emptively excluding a party from seeking to prove their claim and it also reflects the courts reluctance to prejudge and reject a claim with any prospects of success even if such prospects are remote.

See chapter 4 for further discussion of the acceptance test, including a proposal that would result in the acceptance test being replaced by strike out proceedings.

Bodies corporateThe NTA makes it compulsory that the holders of native title have a prescribed body corporate acting on their behalf. They are entitled to choose a body to act on their behalf but, if they do not choose one, the choice will be made by the Tribunal or the Federal Court. Title holders also have a choice under the NTA as to whether the body corporate holds the title on their behalf, as trustee, or merely acts as their agent in making decisions concerning their land. 19

Bodies corporate under the NTA have several functions including:

i authorising future acts; 20ii entering into regional or local agreements with government; 21iii applying for compensation; 22 andiv exercising procedural rights in relation to permissible future acts. 23

At the end of the reporting period, regulations had not yet been made prescribing the kinds of bodies which may perform these functions under the NTA.

Dr James Fingleton has expressed a preference, with which I agree, for regulations favouring prescribed bodies corporate with the following features:

1. the body corporate to include all members of the title-holding group and no-one else;2. its powers to be limited to management of native title and related matters; and3. its rules to provide for consultation, dispute settlement, decision-making machinery and

notification of group decisions. 24

Dr Fingleton suggests that the Aboriginal Councils and Associations Act 1976 (Cth) does not meet the requirement for minimum administrative intervention consistent with a self-management ethos. He suggests that native title corporations are best arranged by means of special legislation 25 such as regulations under the NTA. In the interim, that seems to be the most appropriate course to take. However, I note that a review of the Aboriginal Councils and Associations Act is proposed and I would like to see the outcome of the review produce proposals for reform of the Associations legislation and its operation so that it becomes a suitable source of incorporated status for native title holders. One problem which appears not to have been anticipated in the framing of the provisions dealing with bodies corporate is that the Tribunal or the Federal Court is required to request a representative of the common law (native title) holders to nominate a prescribed body corporate. If there is a conflict between common law holders, then the NTA does not provide any mechanism for addressing that conflict and reaching a determination as to which body corporate is to perform the functions. This is a problem which is likely to arise frequently enough to necessitate making good the omission.

Representative BodiesAdequate fundingRepresentative bodies are facing a number of difficulties in performing their functions under the NTA. The first function of representative bodies listed in the NTA is to facilitate, research and prepare claims. Performance of this role has been hampered by a lack of funding. For instance, the Aboriginal Legal Service of Western Australia reports that it did not receive its 1993-1994 funding until June 1994 and (submitting in August 1994) had still not received a decision on its application for funding for the 1994-1995 year. The funding body, the Aboriginal and Torres Strait Islander Commission, faced the constraints of implementing a new and quickly established programme during the reporting period and it clearly made an effort to distribute funds fairly. Nevertheless, such constraints on funding make it difficult for representative organisations to perform their functions, such as preparation for lodgment of claims and the requirement to invoke the right to negotiate at the earliest opportunity under the NTA in the interests of native title claimants. 26 (See further discussion

on this issue in chapter 2.)

Adequate resourcing of representative bodies will continue to be of concern until it reaches much higher levels than at present. Significant considerations on this issue of funding are:

representative bodies must have the capacity to assist in making claims that communities seek to pursue;

they must be able to respond fully to the filing of potentially large numbers of non-claimant applications (50 in the Cape York region alone) 26 within the two month statutory time limit;

funding must be made available based upon realistic assessments of the cost of bringing a claim including incidental costs such as transport and accommodation for claimants for attendance at related meetings and mediation conferences etc.

The timing and present levels of funding are not satisfactory to allow representative bodies to provide these essential services.

Resolving disagreementsThe NTA provides that representative bodies may assist in the resolution of disagreements among applicants for native title. Ethically, lawyers are generally prohibited from acting for clients who have competing interests. In particular, Aboriginal legal services have historically avoided participating in legal activity where a conflict has arisen between Indigenous people. Conflicts have been managed by the provision of separate and independent legal advice to the parties to the dispute. In more recent times the duplication of costs which has resulted has forced Aboriginal legal services to attempt to adopt a preliminary mediation role in an attempt to avoid being obliged to fund competing interest groups with independent representation.

Land councils have developed with a different perspective and have attempted to help individuals and groups in conflict to reach agreement. They have also sought the assistance of outside bodies, particularly where any disagreement is seriously entrenched.

Attempts to resolve disagreements about the complicated issues which surround native title are inevitably fraught with problems. It has been suggested that in some situations, the handling of conflicts within and between communities could be assisted if there was more than one representative body in a region as allowed for under s. 202(2) of the NTA. 28 It is argued that this would provide Indigenous peoples with a choice about their representation and it would provide a capacity for at least some competing claimant groups to be independently represented. By way of example, the availability of alternative representative bodies in the Kimberley has allowed separate representation for separate interest groups which are so entrenched in their conflicts that they could not be represented by the one organisation.

When the proposal is considered more closely it gives rise to several major issues which require careful examination. These issues include:

the need to support the capacity of representative bodies to prioritise native title claims;

the relationship of representative bodies to communities and the need for grievance procedures as a means of resolving any dissatisfaction;

the availability of alternatives to overlapping representative bodies as a means of providing a choice of representation;

the duplication of costs in an environment where there are insufficient funds for existing representative bodies;

the means by which funds and work are allocated; and

the relationship between representative bodies where there is overlapping coverage, including the method of responding to non-claimant applications.

In relation to these matters, there is the pertinent situation that representative bodies have to concern themselves with a complex array of interests held by their constituents. They perform the task of consulting and working through a range of interests and allocate scarce resources in accordance with priorities which are set through what might be a delicate and evolving process. There will often be scope for disaffected people in such a situation. They have strong claims for independent assistance if they feel that their interests are not being properly addressed. Then again, to provide alternative resources for claims for such people might effectively mean that they jump the queue by getting assistance ahead of other groups who are in front of them on the representative bodys order of priorities. Further, any such pressure for assistance may come from a preference for individual

claims over more comprehensive and broader claims. There is concern about the potential fragmentation of communities and their native titles that is seen to result from such a preference.

For very good reasons there are strong expectations about native title. This makes it all the more necessary that information and complaints systems are available for claimants who have to wait their turn for assistance, or who cannot get assistance. Information should be provided that clearly explains the system of handling requests for assistance and the reasons for the decisions that are taken by representative bodies. Informal mechanisms should be available for handling any complaints made by native title applicants. 29

In addition to the setting of priorities, representative bodies have to deal with conflicts between claimant groups. In line with the approach adopted by the Cape York Land Council, I believe that it is appropriate that organisations providing assistance with native title should consult with all the claimants that are connected with the land being claimed. Differences between claimants should be dealt with through meetings and consultations, where groups can be encouraged to work together. Representative bodies can attempt to mediate differences and should, where possible, avoid lodging claims until those differences are largely settled. 30 If the differences cannot be resolved and the point is reached where separate representation is required then alternatives which could be considered include:

one group remaining with the representative body and the other group(s) being referred to independent legal representation; or

all groups being referred out to independent legal representation. The representative body, could then use its resources and expertise to support all groups, to continue with its mediation role, and to allocate and monitor the funding being provided for the independent representation.

That independent legal representation could be another Indigenous legal service, a legal aid organisation or a private practioner. Thus, independent assistance can be provided without establishing overlapping bodies. But there is then the issue of the relative costs involved of achieving this outcome as opposed to using overlapping bodies.In assisting with differences over native title, it is inevitable that there will be tensions between representative bodies and individuals or groups. The importance of access to independent legal assistance, particularly in such situations, should not be underestimated. However, at the same time, it is important that tensions are not aggravated by moving into an adversarial position. It might be more appropriate for any disaffected claimants to take their concerns up through any complaint mechanisms at the representative body. If necessary, the matter could be taken up with an outside body, which could attempt to assist in finding a solution. For example, the regional council of the Aboriginal and Torres Strait Islander Commission could provide such assistance. 31 Then again, there will be individuals and communities who will require advice and assistance to use those mechanisms effectively. Indeed, the receipt of advice and the knowledge that it is from an independent source, may redress the concerns held by some disaffected claimants. It is fair to say that the appropriate way of resolving the concerns of claimants will vary with the circumstances.

Nevertheless there is a very strong case that before there be any further duplication of representative bodies, existing organisations be provided with the extra funds that are needed to allow them to perform their responsibilities. If there were sufficient funds available then more of the complexities associated with claims could be addressed with the likely result that there would be less of a need for separate representation. Within the realistic likely parameters of any increase in funds in the medium term it will be difficult to further duplicate any representative bodies.

There are a range of reasons operating against a general establishment of overlapping representative services. But in some regions of Australia, due to particular histories, relationships and service needs, it might be appropriate for there to be overlap. Indeed, as has been mentioned, there already exists duplication in Western Australia.

Certainly if there are to be multiple representative bodies in a region, it is necessary that communication be maximised between them to ensure, as much as possible, that claims are being pursued in a co-ordinated and complimentary way. It is important for a single representative body to do this. It is essential that it is done where there are multiple organisations. It is necessary that representative bodies have the capacity to deal with the demand for assistance with claims in a way that allows for an optimal response to the complex and testing issues that can arise in relation to the recognition of native title after two centuries of dispossession and dislocation.

Representative bodies must be supported to meet the challenges that they face. They play a vital role in achieving, in line with ILO No 169, the objective that there be [a]dequate procedures...within the national legal system to resolve land claims. 32 These procedures must ensure that claimants enjoy equality of treatment before the law. This involves access to legal and other assistance.

Access must be built around maximising the choice of claimants to choose the assistance that is perceived to best meet their needs and preferences. A variety of factors, including community and other affiliations, will influence how claimants will want to exercise their choice. If the needs of claimants are not met, then their sense of injustice will prevail and be a continuing source of disputation.

There can be tensions for representative bodies between their representative role in relation to the broad interests of their constituents and the discreet interests of individuals and groups. There might be no straightforward way of resolving those tensions. Indeed they could be a fact of life for some representative organisations. Given the short-term that representative bodies have been handling native title claims, it is too early to be definitive as to how the difficulties I have canvassed can be best approached. It would seem that these issues will be alive for some time to come. It is necessary that there be further dialogue and policy development with regard to them, with a view to ensuring that the human rights of native title claimants are protected. This entails Indigenous people receiving assistance with their native title matters in a way that respects their choice, meets their needs, promotes their access to professional and culturally sensitive assistance and minimises disruption and conflict in communities.

3 Validation and Extinguishment

The NTA protects existing native title from extinguishment by many future acts (that is, generally legislation from 1 July 1993 or non-legislative acts from 1 January 1994) but it also provides for the validation of past acts which would otherwise be invalid because of native title. 33

The impact of the validation of past commonwealth acts is likely to be very limited. The Commonwealth has relatively rarely acquired title or used areas of land since the enactment of the RDA (inconsistency with the RDA being the most likely cause of invalidity). One example of the possible operation of the NTA is the Commonwealth military training base north of Derby in the west Kimberley, which was the subject of commonwealth acquisition after the enactment of the RDA and is the subject of native title claims pending in the Supreme Court of Western Australia. 34

The effect of validation of particular grants depends upon which category they fall into under the NTA. For example, the validation of some interests (such as freehold and certain sorts of leases) extinguishes native title whereas the validation of other interests (such as mining leases) does not extinguish native title. 35

Where a validated interest falls into one of the categories of acts which does not extinguish native title it is still exercisable during its term. To the extent that native title interests conflict with the validated interest, native title interests are suspended but they revive when the other interest expires. This result achieves approximate formal equality for native title holders. A similar situation applies to a freeholder where a mining lease isgranted over the property. Activities conducted under a mining tenement may limit the exercise of rights of the freeholder during the period of the tenement but the impairment abates upon its termination.

As has been mentioned, the NTA leaves the question of the extinguishment by valid past grants for determination by the common law.

One important issue in the recent High Court challenge to the NTA was whether the Commonwealth provisions which purport to validate past acts were constitutional. The Commonwealth cannot pass a law that retrospectively validates legislation which was in the past invalid because of an inconsistency between a state law and the RDA. 36 The key validation provision in respect of the States and Territories, s. 19 of the Native Title Act, declares that:

...The law of a State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

In upholding the validity of this provision, the High Court reasoned that:

Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was

invalid by force of s. 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognized only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s. 19. 37

Aboriginal and Torres Strait Islander landThe NTA excludes from specified categories of validated past acts which effect extinguishment, grants to or for the benefit of Aboriginal and Torres Strait Islander peoples or land which on 1 January 1994 was held under certain land rights legislation. 38 The NTA avoids the irony of the validation regime extinguishing native title to areas which are already held by Aboriginal and Torres Strait Islander peoples.

CompensationNative title holders are entitled to compensation for extinguishment by validated past acts. Similarly compensation is payable for validated past acts which impair native title:to the extent that the past act would not have been validly done had the native title holders held

ordinary title;

where compensation would be payable if they did hold ordinary title; or

the native title relates to an offshore place. 39

(Ordinary title is defined to mean a freehold estate in fee simple, except in the Australian Capital Territory and Jervis Bay, where it is defined to mean a lease of land granted by or on behalf of the Commonwealth. It does not include grants to or for the benefit of Aboriginal people or Torres Strait Islanders.) 40

Subject to an exception where native title is impaired, s. 51 of the NTA provides for an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. As I point out in chapter 2, this requirement is derived from the Commonwealth Constitution.

In determining what just terms would be for the loss or impairment of native title, it would be a mistake to place undue emphasis on western concepts of land values as determined by economic factors. Such a reliance is unlikely to be sufficient to deal with the spiritual attachment to land that Indigenous peoples have. To overcome the inequity that would arise, spiritual attachment to land and consequential cultural loss must be taken into account. To do otherwise will not deliver genuine equality to Indigenous peoples for the loss or impairment of their native title lands. As Silas Roberts, the first chairperson of the Northern Land Council, has pointed out:

It is true that people who belong to a particular area are really part of that area and if that area is destroyed they are also destroyed. In my travels throughout Australia, I have met many Aborigines from other parts who have lost their culture. They have always lost their land and by losing their land they have lost part of themselves. 41

Whether or not a State or Territory validates a past act, native title holders are entitled to compensation from the particular State or Territory if they would be entitled to compensation if the act was done by the Commonwealth under s. 17. 42 This provision provides a clear mechanism for native title holders to recover compensation when the effect of a past act is still uncertain because the relevant State or Territory has not validated the act. It is important to note, however, that where an act has not been validated, native title holders may have the option of pursuing their rights under the RDA. That Act may operate to invalidate the grant and preserve native title rather than providing the title holders with a bare right to compensation.

Despite any right to compensation, I maintain my view, as discussed in chapter 2, that the extinguishment of native title cannot be cured by the payment of compensation.

4 Future Acts

Future acts are classified in the NTA as impermissible and permissible. Apart from a number of exceptions, a permissible future act is defined by s. 235 as one which:

applies to native title holders as it would to ordinary title holders; oradditionally and in relation to legislation, it does not disadvantage native title holders any more than if

they held ordinary title.

Again, native title is placed in a position of formal equality with other titles. But the Indigenous relationship with land is incompatible with the western economic approach to land value. The impairment of a native title interest not only limits the enjoyment of that interest by the native title holders, but in many cases will impair an aspect of the culture of those people. Land to Indigenous peoples is more than a production asset. Ethnocentric comparisons which form the basis of what is and what is not permitted to be done to particular parcels of land will not account for the real impact of acts affecting native title land. For example, there is no justification for permitting acts over native title land that is culturally significant on the basis that the s