Native Title Act changes challenged

Native title rights, founded in our common law, and recognised in legislation, should not be changed, extinguished or modified at the whim of Governments, as part of any business-as-usual approach. This might not be the accepted position of most lawyers or politicians. However, as both a native title holder and a Parliamentarian, this is the view I take.

Common law rights in native title do not exist as a gift of the Parliament, nor as an act of largesse by the Government of the day. They are held exclusively by First Nations Peoples. However, Parliament has the authority to do, more or less, what it wants through the legislative process. 

The Parliament can legislate which aspects of common law native title rights one can enjoy. It does not require consent from the First Peoples. The courts can then interpret whether the Parliament has validly enacted that legislation into Australian law. There may be some moral and political consequences for Governments that legislate without consideration of the views of native title holders.

This is how creeping, continuing dispossession happens. When native title holders enter into negotiation processes as set down in the legislation, they become enmeshed in the process of accepting the terms set down by Parliament that puts limits on the extent of their native title rights. In this way Parliaments assert their sovereignty over First Nations.

These rights are common law rights of the First Nations peoples, not the rights of the common man in the British tradition. They require more than a business as usual approach in the legislative process. Amending such legislation should always require the “free, prior and informed consent” of native title holders and First Nations Peoples, who are entitled to enjoy and hold such rights.

These rights can be however changed or modified by Parliaments as we do not have any Treaty or Constitutional entrenchment protecting the native title rights of First Nations peoples. The Crown through the Parliament can do what it likes with them without consequences except from laws based on its own British traditions. When Government compulsorily acquires or restricts these rights it should be morally obliged to compensate for them.

The Government has released an Options Paper, Reforms to the Native Title Act 1993. It was launched at the end of November 2017 and submissions are due by the end of February 2018. This is a ridiculously short period and highly inconsiderate of those native title nations that live across northern Australia and elsewhere. 

This Options Paper seeks to consider matters discussed in the:

• “Connection to Country” report by the Australian Law Reform Commission (2015);
• the report to COAG of late 2015; and
• the Office of the Registrar for Indigenous Corporations technical review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI) Act announced by the Minister in July 2017

A consultation process on these complex issues was promised by the Government at the time of the passage of the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 earlier this year, in response to the McGlade decision of the Federal Court (McGlade v Native Title Registrar [2017] FCAFC 10). 

The consultation process is meant substantially to happen at the end of the year and over the Christmas break. In remote northern Australia, this period of time, at the peak of the Wet, is less than ideal for consultation with native title holders.

Many of the issues raised in the Options paper go to significant issues of procedure, functioning and efficiency of the Native Title Act, with potential consequences known and unknown for native title holders. There is a need for ample time, resources and expertise to be devoted to such a project. I have urged the Government to ensure that its consultation and engagement processes on these issues are transparent and respectful; not rushed through as though they have the answers ready for delivery. 

Since the days in 1998 of Howard and Fischer’s “10-point plan and bucket loads of extinguishment”, respect for native title rights has steadily diminished.

Since the original passage of the Act much has been done to restore the myth of terra nullius and to give it dominion over the existence of native title. 

The purpose of the Act, “to recognise and protect native title”, has all but been set aside. I consider it necessary to shift the point of balance of honour in the Native Title Act more towards the rights, interests, needs and enjoyment of the First Nations peoples. 

Pragmatism, efficiencies, and procedures under the Act should not be weighted in favour of third parties to the detriment of native title holders. The underpinning principles of cultural continuity, communally held interests, and country shared and cared for by native title holders should inform any changes. These foundations are the very essence of native title rights and indeed are what constitutes the uniqueness of people holding native title rights or asserting a claim for it against the Crown.

From my own perspective, as a native title holder, and now as a legislator in opposition, I have identified six key areas where the functioning of the Act requires some reworking to maintain, strengthen and to enable native title holders to truly enjoy them. Hopefully, to also better align the legislation to the vision of Eddie Koiki Mabo that was recognised by the High Court. 

These matters will probably not be considered in these consultations by the Government. However, they should be matters for native title holders to consider and put forward if they wish.

These are the issues of:

1. Extinguishment, (the ruse to eliminate native title);
2. Consensus decision making (the drive towards individual rather than communal decision making);
3. Fungibility, (a commercial means to achieve economic development and prosperity without loss of native title);
4. Compensation, (for extinguishing native title and the loss of enjoyment);
5. Burden of Proof for native title (terra nullius is discredited so the crown needs to prove how it got good title to first nations people’s lands) ; and
6. Primary Production upgrades on pastoral leases to provide for diversification without requiring native title consent.

Dialogue around these issues with a view to recognising, honouring and protecting native title is surely overdue. A more honest debate around these areas would, in my view, restore the Act to something that the common law initially offered. Its fundamental purpose as stated in the objects of the Act is “to recognise and protect native title”. That fundamental purpose has been eroded.

Extinguishment

Extinguishment is a simple western legal concept but a weighty issue for native title holders. Deciding in an agreement to extinguish native title rights is a solemn and weighty burden for the native title holders. There is no treaty or constitutional entrenchment protecting native title rights. 
Once it’s extinguished, native title is gone forever under western law, and terra nullius is reinstated. That is, the western land tenure system gets reinstated again over the lands and our unique native title rights are eliminated. If freehold is substituted (for native title) the land may have to be leveraged for the financial sustainability necessary to hold on to it; otherwise the land may be lost and we revert to requiring the largesse of the Crown.

Amending legislation that ignores this problem will only continue to entrench injustice and more native title will be lost.

There are some Noongar people, from the southwest of my state of Western Australia, who were intensely concerned about this fact. That is that the Indigenous Land Use Agreement over the region of Perth required them to consent to the extinguishment of what remained of their traditional lands and hence their native title. It was an unjust legal fact that extinguishment of native title had occurred without the right to compensation prior to the commencement of the Racial Discrimination Act in 1975 over much of their traditional lands and waters.

The Agreement provided a significant bundle of benefits, that could go some way to providing the opportunity for their community to better deal with its legacy of disempowerment, discrimination and subsequent disadvantage.

It is a high price to pay though for the current generation of Noongar peoples, to agree that forever and a day, any native title rights they may hold are, by virtue of this agreement, extinguished forever on registration of the agreement. To be asked to deny your essence for monetary gain was not fair in their view. McGlade was about decision making. The Noongar peoples in the McGlade case had a victory in court but when it was brought to the Parliament, the Government with limited consultation, amended the Native Title Act in a way that did not support the McGlade ruling of the Federal court.

In my view, the dispute may have been avoided. Under the terms of the Native Title Act, such an Indigenous Land Use Agreement should have been made without requiring the extinguishment of the Noongar native title rights.

Our colonial history in Western Australia was often bitter and violent, as it was elsewhere. We need to ensure agreement making and truth telling acknowledges this kind of history and that reconciliation can emerge from that history.

The “extinguishment as a first resort” mentality disrupts the process of agreement making. It becomes a challenge to align the needs and desires of powerful third parties, like miners, with the rightful position of First Nations peoples.

Agreements need to be made without the price tag of extinguishment of native title; without requiring signing off on the permanent and total loss of our cultural and spiritual entitlements; and without denying our survival as a People and our ongoing rights to our native title lands.

As First Nations peoples we are not on equal terms with the Government and those that lobby against us or our unique identity. We do not have parity on the playing field of law making.

This denies our rights as First Nations Peoples and works against us maintaining our status as the world’s longest living surviving culture on this Earth. It denies our rights as Indigenous people, as recognised by Australia under the United Nations Declaration on the Rights of Indigenous Peoples.

Decision-making

The Government’s Options Paper considers changes to the way native title claim groups and native title holders make decisions under the Act. Traditional decision making is seen by some as problematic.

For corporations time is money and lengthy consultation processes are seen as costly and unnecessary.

However, the cultural and communal integrity of decision-making processes based on customary law and practice should not be sacrificed to business expediency and corporate demands. There are big stakes at play and time should not be used against us. 

Individualism and the western mode of decision-making may have impacted on traditional ways of decision making for some First Nations peoples. Contemporary decision-making needs to respect our foundational fundamental traditions we hold or we risk becoming more western than cultural in our decision-making processes. Government decision-making processes tend towards that end.

The Government Options Paper raises significant questions on whether the Act and its associated Prescribed Body Corporate (PBC) requirements and regulations should be amended to allow native title claim groups and native title holders to determine their own decision-making processes, rather than mandating the use of traditional decision-making where such a traditional process exists.

Ideally the Government wants nominated native title holders that are on the PBC to control the decision-making process. In my view, it is a problematic proposition that there should be a move away from traditional decision-making processes in the context of native title decision making. While I see the argument for greater efficiency of decision-making and the autonomy of native title bodies and PBCs, it is necessary for these groups to ensure that such actions do not erode or undermine the authority, culture and power we hold as Peoples with unique cultures, protocols, practices and traditions. 

Fungibility

This is finding a way to do commercial things that lead to ongoing prosperity without losing the native title or having it extinguished and thereby losing communal title. 

In economics, fungibility is the property of a good or a commodity whose individual units are essentially interchangeable; you can trade with it.
In May 2015, the Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda and the then Human Rights Commissioner Tim Wilson, now member for Goldstein, convened the Broome roundtable on Indigenous property rights. They began grappling with the communal, cultural, individual and corporate components that arise in this space.

This was no anti-development gathering; in fact there was much common ground found on what are more often than not conflicting positions. 

The primary issue they identified was that of fungibility and communally held native title – enabling communities to build on their underlying communal title and create opportunities for sustainable economic development and prosperity. The grant of freehold automatically extinguishes native title and they were not supportive of this. 

First Nations Peoples’ interests in land come from our inherited connection to specific country, connection to family and community from the same country, traditions and cultural beliefs. This is something all Australians should rejoice in rather than have Government seek to extinguish this essence.

Our native title land doesn’t inherently have the character of fungibility in the western sense. It is not tradable for a like commodity. Native title is collective and inalienable; it cannot be sold or transferred under state and territory conveyancing legislation. Its existence is an affront to this western land tenure thinking – what has to happen is a change to the way western thinking deals with this truth rather than seek to extinguish it.

The fact that native title and other Indigenous land is communally held and inalienable should not prevent it being used for economic gain, or community development. But it does require innovative and careful consideration on ways in which title and tenure can be held while pursuing economic opportunities. In this way we also ensure the hard won rights we have inherited from our ancestors can be used for the benefit of future generations and not surrendered for the convenience of third parties.

Compensation

Any reforms of the Native Title Act need to address the rights of compensation for the loss of enjoyment, access and use of native title lands and not just for its compulsory aquisition or extinguishment by the Crown. 

While the constitutional just terms requirement will allow for this eventually, the requirement for extinguishment and the lack of fair compensation up front is unfair. There needs to be some administrative scheme that can provide compensation in a reasonably expeditious and inexpensive manner not the current requirement of endless court cases.

We need to get past the stumbling point in the conversation that crops up when the issue of compensation for lost land and opportunities arises.
It is an undeniable historical fact that First Nations Peoples in this continent had our lands taken from us without negotiation, without purchase, without consent; without any treaty, unlike other Commonwealth nations. We were also denied the opportunity to enjoy what was to be ours before it was taken without regard or justice to our unique human existence, cultures and enjoyments of our land, waters and environments. 

The Timber Creek native title compensation case is an opportunity to go beyond just physical redress in defining compensation. 

Onus of proof

There is a need to change the onus of proof the burden of proving native title in the Native Title Act from native title applicants to that of the Crown. I look to the example of Canada, where the common law has recognised that the Crown has a fiduciary relationship to the Indigenous peoples of Canada.

In Sparrow v. the Queen (R. v. Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC)), it was found that the Crown is constitutionally charged with providing guarantees to the First nations, so that the “honour of the Crown” is at stake in dealings between it and First Nations Peoples. In Australia, our sorry experience has been that the Crown has too often acted dishonorably in its dealings with First Nations Peoples. This is in the land tenure domain but also in the justice and constitutional recognition space as well.

Reforming the Native Title Act can address that point and return honour to the Crown. Reforming the Native Title Act to give enhanced recognition to the inherent and ongoing rights of First Nations Peoples is a worthy endeavour for any Government. Should this Government seek to go down this path, I will certainly lend my weight to the effort. 

I recall sitting through protracted court procedures in my own native title case and witnessing the cross examination of my people, most unfamiliar with courtroom tactics and proceedings. They were constantly challenged by lawyers about their credibility, but they adhered to their Laws and customs and their protocols and they established that they had withstood the processes of colonisation and the dominance of Government politics of assimilation. The history of assimilation, incarceration and domination since the occupation of their lands was thrown at my people to try and discredit their maintenance of their beliefs, practices and cultural lives. The Crown should be on trial for how they tried to eradicate and destabilise us. 

Pastoral Lease Upgrades

When the Wik Judgement came down in 1996, the pastoral lobby was up in arms. The High Court judgement talked of native title being coexistent and concurrent with those of the lease holder, but yielding if they conflicted with the purpose of the lease – usually grazing cattle or sheep.

What Howard gave to the lobby was a gratuity that they could upgrade up to 50% of their leases without requiring the consent of native title holders. This happened after all pastoral leases since 1975 were validated. 

Now some state jurisdictions are talking about giving pastoral lease holders the right to sublease at commercial rates for a wide range of primary production activities. This includes irrigation, aquaculture, horticulture and forestry when pastoralists do not own the land and the co-existing title holder – the native title holders have no right to be involved in the proposed development on their traditional lands. 

Native title holders are being dealt out of any such deal. Certainly, the right to negotiate over these upgrades has to be considered. This also has relevance to discussions on leveraging Native title held by First Nations people for economic growth and future prosperity. 

No doubt these difficult and challenging topics will be put to one side in the current round of consultations by the Government. However, any of the current discussions should be mindful of just how much dispossession has already taken place through the processes of the Native Title Act. 

This article appeared in Land Rights News Northern Edition February 2018.