Collings, Neva --- "Native title, economic development and the environment" [2009] ALRCRefJl 15; (2009) 93 Australian Law Reform Commission Reform Journal 45
Native title, economic development and the environment
By Neva Collings*
Economic development underpins ‘development’ which is a fundamental human right of all peoples. Yet native title is not conducive to ‘development’ and is in most cases an inferior form of land title. Other forms of Aboriginal title such as Aboriginal freehold under land rights legislation enables greater opportunity for development outcomes.
There is an often-touted view that economic development is somehow contradictory to traditional land use, and what it means to be Indigenous. There is also a view that development threatens conservation objectives. With the burgeoning recognition of the value of environmental services and stewardship provided by land holders—particularly that provided by Indigenous peoples who have nurtured their lands and territories for millennia—there are emerging commercial opportunities that credit land management practices while achieving conservation objectives and traditional land use. For example, carbon credits, bio-banking, geo-sequestration, bio-mass power generation and wildfire management all provide opportunities for Aboriginal people. Whether Indigenous landholders can benefit economically from such opportunities, and develop economically, depends on the full recognition of legal title to their traditional lands and not just the native title rights.
Aboriginal and Torres Strait Islander peoples control between 16 and 20% of Australia under a range of land title regimes.1 Nearly all (98.6%) of Indigenous owned or controlled land is in very remote areas of Australia.2 This represents a significant proportion of the Australian land and seascape. The stumbling block is that exclusive possession and legal title to land is required to enter into commercial agreements, and to reap economic benefits. This is not always the case with native title where a bundle of rights approach means traditional owners may only be granted limited access to their traditional lands.
It is imperative that legislation conferring land rights and native title be reformed to enable Indigenous people to take full advantage of the emerging environmental land management opportunities as a springboard for economic development. It is also important for economic development to be firmly grounded on principles of self-determination and sustainable development, which will have the dual outcomes of economic development and environmental conservation. Presently this is stymied by native title due to the length of time it takes to obtain native title determinations and the non-exclusive nature of many determinations.
The different categories of title throughout Australian jurisdictions include freehold title, inalienable freehold title, lease-in-perpetuity and land held in trust.3 State and territory jurisdictions have legislation that confers freehold land rights, such as the New South Wales Aboriginal Land Rights Act (1983). The federal Native Title Act 1993 (Cth) (NTA), however, confers native title, which is a communal title. This article will explore the limitations of native title.
Economic development
The Australian government has pledged that ‘economic development will lie at the heart of a Rudd Labor Government’s efforts to improve the lives of Indigenous Australians’, by ‘helping individuals and communities achieve economic self-reliance’.4 It ‘supports the efforts of Aboriginal people to use their land for economic development’.5 However, the scope for native title to contribute to economic development is itself problematic.
Before exploring in summary the key problems with native title in the context of economic development, it is important to appreciate the basis of the right to development, which is articulated in the United Nations Declaration on the Right to Development. Article 1 states that:
1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
Development is not limited to material and economic outcomes but encompasses the constant improvement of the wellbeing of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of resulting benefits. As noted by Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner:
Development is not only a human right in itself, but also defined by reference to its capacity as a process to realise all other human rights. ...The goal of social and economic development is relevant to self-determination; because social wellbeing and economic prosperity will sustain independent, self-determining Indigenous communities.6
Taking into consideration all facets of development—economic, social, cultural and political—payments for land management services provided by Indigenous landholders can achieve the range of outcomes and complement conservation outcomes. Yet Indigenous peoples have sometimes been marginalised from development outcomes on their lands.7
Land management environmental services
There is significant potential for Indigenous landholders to obtain income from land management practices, but which generally require exclusive possession due to the commercial nature of such dealings. The potential for Aboriginal land to be part of the climate change mitigation response is noted in the Garnaut final report, which proposes that ‘government regulation or acquisition may be justified where land is of significant conservation value, or where certainty of outcome is required’.8 Approximately 10% of the Indigenous estate, or 2% of Australia’s landmass, is within the boundaries of the National Reserve System.
Already, traditional owners in the Northern Territory have entered into land management agreements that involve burning practices. The West Arnhem Fire Management Agreement (WAFMA) was signed in August 2006. It creates a partnership between Darwin Liquefied Natural Gas (DLNG), the Northern Territory Government, the Northern Land Council (NLC) and traditional owners from coastal Maningrida to the headwaters of the Katherine and Mann rivers. Under the WAFMA, the Northern Territory Government will contract the NLC and traditional owners to implement the fire management strategy.9 DLNG will provide about $1 million per year for 17 years to the traditional owners for this purpose.10
Traditional owners and land managers will carry out the burning, which will also be monitored by the Tropical Savannas CRC.11 WAFMA is designed to offset about 100,000 tonnes of greenhouse gas emissions per year.12 Unchecked wildfires create about 40% of greenhouse gas emissions in the Northern Territory.13
The Commonwealth Government is currently considering the introduction of a Carbon Pollution Reduction Scheme (CPRS) that would commence in 2010. At present, the CPRS green paper
canvasses options and preferred approaches on issues [related to the scheme], such as which industry sectors will be covered and how emission caps will be set. It also includes ways to address the impacts on Australian households, emissions-intensive trade-exposed industries and other strongly affected sectors.14
The green paper makes it clear that ‘only forestry activities that are recognised in Australia’s Kyoto Protocol accounts will be eligible for inclusion in the [scheme]’.151This is likely to significantly restrict the capacity of Indigenous people to be involved in the scheme. In addition to this restriction, the government has stated that ‘emissions from the uncontrolled burning of savannah in the tropical north of Australia, which can be reduced through controlled burning management practices’,16 are unlikely ever to be included in the scheme. Later in the report, seemingly in contradiction to the previous point, the government states its commitment ‘to facilitating of the participation of Indigenous land managers in carbon markets and [a promise to] consult with Indigenous Australians on the potential for offsets from reductions in emissions from savanna burning and forestry opportunities under the scheme’.17 It is therefore unclear what opportunities will arise for Indigenous Australians from CPRS at this time, although this is likely to become clearer later this year when draft legislation is introduced.
Avoided deforestation is also an issue that the international community is exploring and is being discussed at international climate meetings in Poznan in December 2008 and Copenhagan in 2009. If, internationally, avoided deforestation becomes part of the formal international mechanisms under the United National Framework Convention on Climate Change, it is likely to become part of any CPRS over time. This could provide considerable opportunities for Indigenous land rights, including native title land.
Native title reform
Native title over lands and waters is the legal recognition of the rights and interests of Aboriginal and Torres Strait Islander people over lands and waters according to their traditions, laws and customs. The purpose of the NTA is to protect and recognise native title by providing a national scheme for its recognition and protection, and to provide for the coexistence of native title with the national land management system.18
The scope for traditional owners of native title lands to develop by taking advantage of emerging commercial land management opportunities requires a land base. Legal title is considered critical to leveraging outcomes from property. Yet this is obstructed by the onerous requirements of proving native title and thwarted by the bundle of rights approach that may not confer exclusive possession.
However, the Aboriginal and Torres Strait Islander Social Justice Commissioner has described the native title claim process as being in ‘gridlock’ given the length of time to process claims, and the energy, emotion and resources involved.19 On the rare occasion a native title claim succeeds, the rights and interests are limited over native title lands. Furthermore, common law recognition through litigation is difficult.
One of the primary difficulties with the native title claim process is that claimants have to show that they have existed as a community continuously since British acquisition and continued to observe their laws and customs.20 To add a further layer of difficulty, traditional laws and customs are transmitted orally, which means evidence may be inadmissible or restricted under the hearsay rule. This test means it is far more difficult to prove native title in south-east and southern parts of Australia, where dispossession occurred first.
Supposing a native title claimant succeeds in proving native title by continuous connection, native title is either partially or fully extinguished by non-Indigenous interests over the land under claim. If only partially extinguished, this partial access to land does not enable traditional owners to derive economic benefits from the land because it does not allow for co-existence and diversity of interests to be pursued over a parcel of land.21 As noted by the Aboriginal and Torres Strait Islander Social Justice Commissioner in his 2006 Native Title Report:
The economic effect of the legal test for extinguishment is to permit the expansion of non-Indigenous interests in land and erode the Indigenous land base.22
The formulation of native title as a bundle of rights was established in the High Court in Western Australia v Ward.23 Therefore, native title is not title to land as such, but a bundle of rights that can each be extinguished. This means that native title holders may be granted rights to do only certain things on land, not gain the title to the land itself. Clearly, this limits development because economic development is not possible without legal title. Exclusive possession is possible, but only where there is no extinguishment by other interests on the land.
Without title to land, ‘there is no entitlement to participate in the management of land, control access to land, or obtain benefit from the resources that exist on the land’.24 Furthermore, classifying native title rights as ‘traditional’ inhibits the economic use of such rights, and stifles the development trajectory Indigenous peoples are entitled to pursue as of right. Indigenous people have to rely on a combination of different systems of state land rights to ensure economic development occurs.
*Neva Collings is an Indigenous Solicitor at the Environmental Defender’s Office New South Wales.
Endnotes
1 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2005, Productivity Commission, (2005), [11.26].
2 Ibid.
3 The intricacies of economic development and native title have been comprehensively documented and critiqued by the Aboriginal and Torres Strait Islander Social Justice Commissioner.
4 Australian Labor Party Policy Statement, Indigenous Economic Development (2007), <www.alp.org.au/download/now/indig_econ_dev_ statement.pdf>, (accessed 17 December 2008).
5 Ibid.
6 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, (2007) 31.
7 Ibid, 115.
8 R Garnaut, The Garnaut Climate Change Review Final Report (2008), Ch 15.
9 M Scrymgour (Minister for Environment, Northern Territory) ‘Multi-Million Dollar Arnhem Land Greenhouse Gas Fire Sale’ Media Release, 24 August 2006 <http://newsroom.nt.gov.au/index.cfm?fuseacti on=viewRelease & id=283 & d=5> (accessed 17 December 2008).
10 Tropical Savannas CRC (2006) ‘Fire Agreement to Strengthen Communities’ in Issue 33, Savanna Links.
11 Tropical Savannas CRC (2006) Annual Report 2005–06.
12 Northern Territory Government (January 2007) ‘Fire plan leads the world’ Issue 8, Common Ground.
13 Tropical Savannas CRC (2007) ‘Eureka win for Arnhem Land fire project’, in Issue 34, Savanna Links.
14 Department of Climate Change Carbon Pollution Reduction Scheme Green Paper (2008), available at <www.climatechange.gov.au/greenpaper/index.html.
15 Ibid, Summary, 17.
16 Ibid, Summary, 19.
17 Ibid, Summary, 38.
18 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, (2008) ch 1.
19 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006 (2007).
20 Yorta Yorta Aboriginal Community v Victoria (2002) HCA 58.
21 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006 (2007), 37.
22 Ibid, 39.
23 Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483.
24 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006 (2007), 40.