Guiding principles

1.44       In addition to guidance from the Preamble and objects of the Native Title Act, the ALRC developed five guiding principles for reform. The ALRC invited comment on these principles in the Issues Paper.

Principle 1: Acknowledging the importance of the recognition of native title

Reform should acknowledge the importance of the recognition and protection of native title for Aboriginal and Torres Strait Islander peoples and the Australian community.

1.45       The principle that reform to the Native Title Act should adhere to the importance of the recognition and protection of native title received support in many submissions.[41]        

1.46       In a legal sense, recognition may be thought of as

[l]ying at the heart of the common law of native title and the Act … It is embedded in a matrix of rules defining the circumstances in which recognition will be accorded to native title rights and interests and those in which it will be withheld or withdrawn. The idea of recognition operates in a realm of legal discourse. It may be seen as a kind of translation of aspects of an indigenous society’s relationship to land and waters into a set of rights and interests which exist under non-indigenous laws.[42]

1.47       The importance of a determination of native title is captured in that

[r]ecognition of native title is significant for the individual native title holders, the native title holding body and the broader Australian community. It will usually also give rise to an entitlement to compensation for some past extinguishment, to exclusive rights in some areas, and to statutory procedural rights, including the ‘right to negotiate’.[43]

1.48       The Australian Human Rights Commission highlighted the ongoing importance of the recognition and protection of native title as

reforms to both the Native Title Act and the native title system more generally have been ad hoc and only ‘tinkered around the edges’. This has resulted in a native title system that has created some opportunities for Aboriginal and Torres Strait Islander communities, but which remains slow and cumbersome in the delivery of outcomes.[44]

1.49       Some commentators argued that ‘recognition’ is no longer a barrier to achieving outcomes under the Act.[45] The Chamber of Minerals and Energy of Western Australian questioned the assumption that ‘the system established under the NTA for the recognition of native title has somehow failed or is “unduly limiting”’. [46] In respect of any proposed reforms, their submission ‘cautions against amending the core provisions of the NTA that concern the recognition of native title without probative and objective evidence to this effect’.[47]

1.50       Just Us Lawyers stressed the need to return a balance to the Act. [48]

Principle 2: Acknowledging interests in the native title system

Reform should acknowledge the range of interests in achieving native title determinations that support relationships between stakeholders.

1.51       It is inherent to the nature of native title rights and interests in land and waters that a claim will interact with many other interests.[49] Section 225 of the Native Title Act sets out, with respect to a determination, the relationship between native title and other interests in a claim area. The precise interaction will depend upon the law and custom of the relevant claimant group, and the specific interests held by others in the area concerned.[50]

1.52       Section 253 of the Native Title Act defines an interest in land and waters.[51] The guiding principles extend that meaning to encompass consideration of a wider range of interests including those of Aboriginal and Torres Strait Islander communities, governments at all levels, the courts, industry and commerce, and community organisations that may be involved in the native title system. A determination of native title takes effect as a judgment in rem—a legal right that is enforceable against third parties over time.[52]

1.53       The many interests involved in any native title determination can also include overlapping claims or disputed claims by Aboriginal or Torres Strait Islander peoples. Particular issues in terms of ‘access to justice’ arise for native title claimants and potential claimants.[53]

1.54       ‘Co-existence’ captures the idea that there are complex inter-relationships between native title holders and the wider community.[54] Agreement-making has built relationships between all stakeholders in the native title system.[55]

1.55       Nonetheless, the Western Australian Government submission called for an additional principle for ‘ensuring consistency and compatibility with the development of Australia’s unique political and legal history, including its history of European settlement.[56]

1.56       Relevant industry groups acknowledged the importance of fostering relationships.

Members of the MCA recognise that industry’s engagement with Indigenous peoples needs to be founded in mutual respect and in the recognition of Indigenous Australian’s rights in law, interests and special connections to land and waters. This point is made even more acute by the fact that more than 60 per cent of minerals operations in Australia have neighbouring Indigenous communities.[57]

1.57       It would be unrealistic to expect that all conflict has been resolved since the Native Title Act was enacted, particularly given the strong divisions when the legislation was introduced.[58] Further, the objectives of stakeholders within the native title system are not necessarily congruent.

1.58       The need for the Native Title Act to achieve certainty is emphasised by some stakeholders.[59] The Chamber of Minerals and Energy of Western Australian suggested adoption of guiding principles which seek to ensure that the native title system maintains integrity, efficiency, timeliness, and certainty.[60] In this light, the Minerals Council of Australia ‘supports the guiding principles but suggests that providing ‘transparency and certainty’ for all stakeholders should be added to Principle 2.[61] Ed Wensing noted that certainty as a goal needs to be balanced against other outcomes to be achieved under the Act.[62]

1.59       As the Association of Mineral Exploration Companies stated,

[t]he NTA is of course concerned with more than simply the recognition and protection of native title. It is in effect a compromise between the recognition and protection of native title rights and interests and the provision of certainty to the wider community, which holds or may seek to acquire or exercise non-native title rights.[63]

1.60       The ALRC notes that acknowledging all interests within the native title system will require balance and proportionate responses.

1.61       Commentators from a range of perspectives urged a move toward a settlement framework, rather than the current claims process under the Native Title Act.[64]

1.62       The Native Title Act is to give precedence to conciliation and negotiation of native title determinations where possible.[65] Chapter 3 outlines the shifts in practice toward achieving consent determinations,[66] and a growing emphasis upon settlements.[67]

1.63       A lack of certainty on legal points may inhibit effective negotiation and conciliation. As the South Australian Government explained:

As the law on the recognition of native title became clearer, the State Government and other parties could more confidently proceed with negotiations to resolve claims by consent … While there is no doubt scope for improvement in the native title system, South Australia is concerned that significant changes to native title law will actually slow down and complicate the State’s current program for resolving native title claims. [68]

Principle 3: Encouraging timely and just resolution of determinations

Reform should promote timely and practical outcomes for parties to a native title determination through effective claims resolution, while seeking to ensure the integrity of the process.

1.64       There was general support for this principle. However, AIATSIS qualified its  support by indicating that timeliness in itself should not be the primary concern, arguing for a  

principled approach to reform that encourages savings in time and resources; though not at the cost of achieving just recognition of the rights of Aboriginal and Torres Strait Islander peoples. The paramount ‘integrity’ of the system in this context lies in ensuring that measures to improve the timeliness of matters will at least do no harm. An appropriate policy rationale applies considerations of efficiency, only in the context of a focus first on ‘just’ and then on ‘timely’.[69]

1.65       A need for balance was stressed. AIATSIS further submitted that

[p]romoting the timely and effective resolution of native title matters is an appropriate concern for any actor in the system. While avoidable delay can be a denial of justice, a lapse of time may be necessary for the just and efficient resolution of a matter. This is particularly the case in native title matters, which are unique in the Federal Courts’ jurisdiction, as they are lodged well before the parties are prepared for litigation.[70]

1.66       The North Queensland Land Council directed attention to securing the integrity of the claims process and its role in building capacity for all parties to successfully engage.[71] Adherence to international best practice built on human rights standards for negotiation and consultation was identified as another important factor.[72]

1.67       Claims should not be unnecessarily prolonged. Long time frames have repercussions for the viability of current and future native title communities, and in terms of commercial certainty.[73] Costs for the parties involved and, more generally, within the native title system, can escalate if there are long time frames. The Federal Court has instituted practice initiatives designed to ‘ensure where possible that resolution of native title cases is achieved more easily and delivered in a more timely, effective and efficient way’.[74]

1.68       The balance between timely and practical outcomes, and procedural and substantive integrity, assumes particular significance as native title moves into the ‘next phase’. Attention is shifting to governance of native title.[75] The Australian Human Rights Commission explained:

The Commission also considers it appropriate that any suggested amendments that relate to benefits obtained from either determinations of native title or Indigenous Land Use Agreements (ILUAs), also take into consideration the need to build good governance capacity within the native title system. This is particularly important to enable PBCs to manage native title benefits into the future.[76]

Principle 4: Consistency with international law

Reform should reflect Australia’s international obligations in respect of Aboriginal and Torres Strait Islander peoples, and have regard to the United Nations Declaration on the Rights of Indigenous Peoples.

1.69       Australia has international obligations in respect of Aboriginal and Torres Strait Islander peoples under a range of binding international law instruments. The United Nations Declaration on the Rights of Indigenous Peoples[77](‘UNDRIP’ or ‘the Declaration’) also reflects human rights standards that are relevant to the Native Title Act.[78] The Terms of Reference direct the ALRC Inquiry to Australia’s statement of support for the Declaration.[79]

1.70       The Minerals Council of Australia, while agreeing ‘it is important to have regard to international law’, noted also ‘it needs to be applied as ratified within the Australian context where the Crown has sovereign rights over minerals and with regard to the overall context and objects of the instruments in question, not just provisions read in isolation’.[80]

1.71       The National Congress of Australia’s First Peoples supported the view that ALRC proposals should be consistent with Australia’s international obligations while stating:

we are cognisant that despite repeated calls from UN treaty bodies for the Act to be amended to reduce the high evidentiary requirements that prevent many Aboriginal and Torres Strait Islander Peoples from regaining control of their traditional lands, successive Australian governments have failed to move beyond piecemeal amendments.[81]

1.72       The Native Title Act was enacted in light of developments in international law.[82] The Convention on the Elimination of all Forms of Racial Discrimination, to which Australia is a party, was of particular relevance.[83] Under article 1(4) of the Convention an allowance is made for ‘special measures’.[84]

1.73       Australia signed the International Covenant of Economic, Social and Cultural Rights (ICESCR) on 18 December 1972 and ratified the Convention on 10 December 1975, with no reservations. The UN ICESCR Committee noted the high cost, complexity and strict rules for native title claims, and the inadequate protection of Indigenous cultural and intellectual property and language, in accordance with art 15.[85]

1.74       Since the enactment of the Native Title Act, specific human rights frameworks for Indigenous peoples have emerged internationally. UNDRIP is the most significant. In 2009 Australia issued a statement of support for the Declaration.[86] The Declaration has provisions relating to the recognition and protection of Indigenous peoples’ lands and waters.[87]

1.75       Professor Megan Davis suggests that

[t]he Declaration represents an important framework from which the Australian state can re-engage Indigenous communities in relation to native title on the basis of internationally recognised and accepted standards pertaining to the rights of Indigenous peoples to land and the recognition of their culture.[88]

1.76       The Declaration is a resolution of the General Assembly giving Indigenous Peoples ‘an evidentiary and persuasive role in stimulating the development of jurisprudence on the rights of indigenous people’.[89] As the National Congress submission states, in regard to the Native Title Act,

Congress draws distinction between the requirements of the Act, which merely extend to clarifying where land ownership of our Peoples might have survived the imposition of British and Australian law over our territories, combined with the additional requirement to provide evidence of continued customary practices; in contrast to the human rights standard, requiring independent and balanced adjudication of the rights of the Aboriginal and Torres Strait Islander Peoples.[90]

1.77       Article 38 of the Declaration provides that:

States, in consultation and cooperation with Indigenous Peoples, shall take appropriate measures, including legislative measures, to achieve the ends of the Declaration.

1.78       Within Australia, the Aboriginal and Torres Strait Islander Social Justice Commissioner has advocated a ‘principled approach’ to implementing the Declaration.[91] The Australian Human Rights Commission stated:

The Declaration is a remedial instrument, designed to rectify a history of failings when it comes to protecting Indigenous peoples’ human rights. The Declaration contains the ‘minimum standards for the survival, dignity and well-being of the indigenous peoples of the world’. It elaborates the rights already set out in existing human rights instruments, including the treaties to which Australia is a party.[92]

1.79       Free, prior and informed consent (FPIC) is a principle that has gained increasing acceptance as an international best practice standard to govern dealings between indigenous peoples and third parties.[93] More informal concepts such as a ‘social licence to operate’ have gained increasing acceptance in industry and the community.

1.80       These standards have important practical ramifications:

[s]uccess on projects, or at least a smooth process from inception to conclusion, depends for a large part on how you build relationships with people along the way. It is critical that you engage Aboriginal people early in the piece. People are keen to be involved—they are very determined to protect their country and sacred sites, but they do not want to stifle development. People want to participate—it’s as simple as that. Sure you may have some challenges through the process, but they are never insurmountable and if you treat people with respect—that includes affording people the right to their free, prior and informed consent—and listen to what they are saying, you will get things done.[94]

Principle 5: Supporting sustainable futures

Reform should promote sustainable, long-term social, economic and cultural development for Aboriginal and Torres Strait Islander peoples.

1.81       Many submissions supported this principle, but also raised some caveats about the capacity of the Native Title Act to deliver effective social, economic and cultural development.[95] Other submissions emphasised the need for economic development to occur in a culturally appropriate way:

The Aboriginal and Torres Strait Islander Social Justice Commissioner encourages that outcomes sought be measurable, highlighting the critical importance of economic development occurring in a way that supports and respects Aboriginal and Torres Strait Islander peoples’ culture and identity.[96]

1.82       The NSW Young Lawyers Human Rights Committee endorsed the view of the UN Human Rights Committee to the effect

that culture manifests itself in a variety of forms, including livelihood activities including fishing or hunting, in addition to the right to live on reserves protected by law. The right of indigenous peoples to participate in resource development on their traditional land has also been recognised by international law.[97]

1.83       The Preamble to the Native Title Act draws a link between Indigenous disadvantage and the dispossession of Aboriginal and Torres Strait Islander peoples. Since that time, many Commonwealth and state policies have been developed to redress Aboriginal and Torres Strait Islander disadvantage. For example, on 1 July 2014, the Australian Government’s Indigenous Advancement Strategy commenced.[98]

1.84       Several submissions noted that few policies effectively link socio-economic opportunities for Aboriginal and Torres Strait Islander peoples with native title outcomes.[99]

1.85       The importance of simultaneously developing sustainable native title outcomes and policies designed to enhance Aboriginal and Torres Strait Islander peoples’ economic opportunities was highlighted by Professor Jon Altman. He questioned, ‘how can socioeconomic gaps be closed without economic development where people live?’[100]

1.86       Other submissions emphasised that ‘[r]ecognition and protection of native title under the NTA is a starting point but not a complete answer to the social and economic issues which may face native title holders’.[101]

1.87       Several submissions identified wide variation in native title outcomes.[102] The Kimberley Land Council noted that the Native Title Act

provides the best opportunity for economic, social and cultural development to those Aboriginal and Torres Strait Islander people who are least impacted by colonisation … It is important to recognise that the NTA is not a panacea for all of the wrongs of dispossession and colonisation, but is one important device in addressing these wrongs. [103]

1.88       Other submissions identified the need for a longer term perspective. Frith and Tehan contended that

more attention should be paid, in terms of sustainable futures, to achieving mechanisms by which native title groups can sustainably and effectively manage their determined native title rights and interests to achieve their long term land justice aspirations. Ultimately, a native title determination is not the only or even the main outcome of the native title process in the NTA.[104]

1.89       There are expectations that native title can achieve effective economic outcomes for Aboriginal and Torres Strait Islander peoples in coming years.[105] The identification of native title with sustainable future outcomes also suggests that critical components, such as the underpinning rights and governance structures, will be important for long-term social, economic and cultural development for Aboriginal and Torres Strait Islander peoples.

1.90       A robust framework for reviewing the Native Title Act based on the principles identified in this chapter is important in that regard.