Reconciliation and Social Justice Library

• INTRODUCTION
  • THE PROJECT
  • PROJECT TEAM
    • Investigators
    • Industry Partner
  • THE COLLABORATION
  • THE BENEFITS
    • Economic
    • Social
  • THE ELEMENTS OF THE PROJECT
  • QUALITY OF RESEARCH
  • RELATIONSHIP OF THE PROJECT TO OTHER RESEARCH
  • OTHER COLLABORATING BODIES

INTRODUCTION

An Australian Research Council Collaborative Research Grant was awarded for 1997-1999 to Emeritus Professor Garth Nettheim (University of NSW), Ms Donna Craig (Macquarie University) and Associate Professor Gary Meyers (Murdoch University) to work with the National Native Title Tribunal (NNTT) as `industry partner'.
Research conducted to date, and subsequently, will be released as a series of Discussion Papers on specific aspects of the Project. Responses to the Discussion Papers will be invited, in the form of written submissions and through one or more workshops.
This Discussion Paper gives an overview of the Project. It is based on the Supporting Statement lodged with the original application to the Australian Research Council and has been updated in the light of developments since that time.

THE PROJECT

In Mabo v Queensland (No 2) (Mabo) the High Court held that the pre-existing rights of Indigenous Australians in respect of land and waters may survive under the Common Law as `native title'.[1] Legislation was subsequently enacted to fit native title into the legal landscape, notably the Native Title Act 1993 (Cth) (Native Title Act), as amended, and complementary State and Territory legislation.
The problem is that traditional forms of land `ownership' and control, under the laws of Aboriginal peoples and Torres Strait Islanders, are not designed to interact with non-Indigenous forms of law and government.
The purpose of the Project is to develop recommendations for a more adequate `fit' between the systems. Specifically, it builds on provisions in the Native Title Act concerning `prescribed bodies corporate' and `representative Aboriginal/Torres Strait Islander bodies'. It extends to a consideration of mechanisms for asserting Indigenous peoples' interests in lands and waters that are not subject to native title, in matters such as environmental protection and cultural heritage.

PROJECT TEAM

Investigators

Professor Garth Nettheim has engaged in academic consideration of Indigenous legal issues since 1970, and has served as Chair of the Indigenous Law Centre at the University of NSW since 1981. He has written and published extensively in the areas of land rights, native title, and Indigenous self-government.
Associate Professor Gary D. Meyers has a strong record in relation to environmental law and policy and native title issues. He has served as Associate Director of the Centre for Commercial and Resources Law at the University of Western Australia and Murdoch University and as Director of the Environmental Law and Policy Centre at Murdoch University. He has also served as Director of the Legal Research Unit at the NNTT.
Donna Craig is a Senior Lecturer in Law at Macquarie University. She has an international reputation in environmental law and policy, and Indigenous agreements. She has direct experience in negotiations for resource development on land subject to native title claims.

Industry Partner

The Hon. Justice Robert French is a judge of the Federal Court of Australia and President of the NNTT. As President since shortly after the Tribunal's establishment, he has an unrivalled knowledge of the legislation. He has also played an active role in attempts to mediate agreements between parties involved in native title claims.
Dr Stephen Sparkes is the head of the Legal Research Unit of the NNTT. He was previously Manager of the Legal Services Unit of the Great Barrier Reef Marine Park Authority where his responsibilities included representing the Authority in native title mediations before the Tribunal. Dr Sparkes was also instrumental in making recommendations for the amendment of the Great Barrier Reef Marine Park Act 1975 (Cth) to allow for joint management arrangements with native title holders. He has a particular interest in native title `offshore' and native title as it intersects with environmental management.

THE COLLABORATION

There has been a history of collaborations between the NNTT and the Indigenous Law Centre (ILC) at the University of NSW and Murdoch University's Environmental Law and Policy Centre (ELPC).[2] The Project has been designed by the parties as a more structured collaboration to address what is becoming a pressing need.
The NNTT is contributing cash as well as contributions in kind. NNTT personnel will contribute as appropriate, and NNTT facilities and data are available to support the research in Perth and Sydney. Portions of the research are being conducted in Perth by Associate Professor Meyers and the ELPC, and the NNTT President and staff; portions are being conducted in Sydney by Professor Nettheim and Ms Craig and a team at the ILC, in collaboration with the NNTT Sydney office.
The outcome studies will be published by the collaborators, first as Discussion Papers and ultimately as a final report. The studies will provide guidance to the NNTT and the Federal Court in exercising their powers under the Native Title Act. The studies will be valuable to parties negotiating agreements. They will also be of relevance to parliamentarians proposing improvements to the legislation. It may also be possible to design instructional training courses drawing on the studies.

THE BENEFITS

Economic

Major development projects will continue to be proposed for lands in which Indigenous Australians have continuing rights and interests under their laws.
Most developers are not now opposed to the notion that Aboriginal peoples or Torres Strait Islanders may have rights and interests that need to be considered. However, some express concern at particular aspects of the need to deal with Indigenous peoples. These concerns include the problem of ensuring that they are dealing with the appropriate people, and the additional time that may be involved in negotiations.
Such developments may be of economic benefit to Australia and to the Indigenous people concerned. If they are of benefit to the Indigenous people they stand also to be of benefit to other taxpayers in lessening the welfare dependency which is the lot of many Indigenous communities.For such purposes it is essential that Indigenous Australians have appropriate institutional mechanisms through which to represent, to developers and to governments, their essential interests in land and waters, resources, cultural heritage and the environment (whether on or off land or waters which are subject to native title).

Social

Satisfactory arrangements for these purposes will reduce points of tension within Australian society, contribute to the maintenance of viable Indigenous cultures and land use traditions and contribute, also, to the goal of Reconciliation.

THE ELEMENTS OF THE PROJECT

The Project comprises several elements as follows.
A. A social, economic and legal history and analysis of land-holding and governance structures under Australian statutory land rights legislation, commencing with the Commonwealth's 1976 legislation for the Northern Territory.
B. A comparative study of land-holding and governance structures for Indigenous peoples in other parts of the world such as the USA, Canada, New Zealand and Scandinavia and Greenland.
C. A consideration of: the case studies and the recommendations of the recent examination of the Aboriginal Councils and Associations Act 1976 (Cth) conducted by the Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS); other Australian legislation for corporations and associations; and recent work by the Aboriginal and Torres Strait Islander Commission (ATSIC) in redesigning Aboriginal legal services.
D. A study and critical analysis of work that has been done to date in the development of structures under the Native Title Act for governance, resources and environmental management on lands and waters subject to native title. The experiences of `representative Aboriginal/Torres Strait Islander bodies' will be assessed, together with work already done in relation to `prescribed bodies corporate'.
E. A study of mechanisms for Indigenous people to have effective control over use and environmental management developments affecting them other than on land or waters held under native title.

F. A compilation and analysis of Australian and overseas experience of cross-cultural negotiations for co-management of land, waters and resources, and environmental management regimes, including various forms of regional agreements.

QUALITY OF RESEARCH

The elements in the Project have been highlighted by the NNTT and the other proponents as of major theoretical and practical significance.
In terms of theoretical significance, it needs to be stated that the decision of the High Court of Australia in Mabo was one of the most significant judicial decisions in Australia's history in reversing the convenient assumption that the non-Indigenous settlement of Australia could proceed without any acknowledgment of the pre-existing rights of the Indigenous Peoples in relation to land and waters. It was not, however, unprecedented, because other Common Law countries had long acknowledged pre-existing rights. In particular, there was a substantial body of North American jurisprudence on which the High Court was able to draw.
There was also Australian jurisprudence drawing on experience under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). While that Act was predicated on the earlier denial of native title,[3] it established a claim process whereby Aboriginal rights in respect of `claimable' land might be recognised by Australian law if established under Aboriginal law. Thus, by the time of the decision in Mabo, the essence of the Aboriginal relation to land had become understood in Australian law together with the processes by which Aboriginal rights and interests might be established and asserted.
The challenge under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and land rights legislation in other Australian jurisdictions, has essentially been the same as the challenge flowing from the Mabo decision and Australian native title legislation. That challenge is how best to provide for the co-existence of forms of land holding and governance under Indigenous laws with those under Australian laws. It is a challenge in terms of legal pluralism and cross-cultural statespersonship. Both forms of law -- Indigenous and Australian -- may need to be adapted in order to achieve a satisfactory inter-relationship.
The practical significance of the Project is that in the next few years there will be a number of determinations that native title exists in various parts of Australia. Sections 55-60 of the Native Title Act require that, when it is determined that native title exists, there shall be a determination that a `prescribed body corporate' be designated, either to hold the title as trustee for the `common law holders' or, otherwise, to serve as their agent.[4] Similarly, provision is made in sections 202-203 for `representative Aboriginal/Torres Strait Islander bodies' to exercise important functions under the legislation.
Such institutions are designed to provide `interface' between Aboriginal and Torres Strait Islander laws and decision-making and Australian laws and governments. The issue has already been raised in court proceedings whether such institutions are compatible with adequate recognition of Indigenous rights and interests.[5]
Work needs to be done on the concept, and on the detail, relating to prescribed bodies corporate and representative Aboriginal/Torres Strait Islander bodies under native title legislation. This work needs to build on a thorough socio-economic and legal analysis of arrangements established under the various Australian Land Rights Acts. It also needs to draw on experience in other parts of the world, particularly the USA and Canada.
The Project is not, however, confined to matters of land-holding and decision-making on land subject to continuing native title. Aboriginal peoples and Torres Strait Islanders may have strong continuing associations with land and waters which are not `claimable' under native title legislation for the reason that native title is regarded by Australian law as having been extinguished. Extinguishment may be by grants of interests to others, or by governments using the land for public purposes, where such grants or uses are inconsistent with the continuance of native title. The issue arises particularly strongly in regard to the very large proportion of Australia which, at some time in the past, has been granted as pastoral leases.
Australian law may need to adapt to continuing Aboriginal and Torres Strait Islander rights and interests in lands and waters where native title has, according to Australian law, been extinguished.
The issue can arise in at least three contexts under the Native Title Act.
* It can arise in relation to the role of the NNTT in the course of mediating disputed claims to native title (claimant and non-claimant) and/or compensation. A potential agreement may relate not only to the particular lands or waters which are `claimable' but also to nearby areas which are not. For example, the Indigenous people may have concerns about environmental management or about the protection of sacred and significant places.
* The issue can also arise under the `future acts' regime where the NNTT may be called on to exercise its `arbitral' function in deciding whether or not mining activity should proceed on land subject to native title or to claims to native title. Experience indicates that a negotiated agreement prior to reference to the NNTT, or during its proceedings, may well involve important Indigenous interests in areas which are not `claimable'.
* The issue may also arise in relation to `regional agreements' under section 21 of the Native Title Act or `Indigenous Land Use Agreements' under recent amendments to the Native Title Act.[6] The potential for `regional agreements' is attracting increasing interest in Indigenous peoples' organisations, industry groups and the NNTT itself as a means of by-passing some of the specific hurdles relating to native title and compensation claims and future act proposals under the Native Title Act. Indeed, such agreements may involve Indigenous peoples agreeing to forgo claims to native title (but not to surrender native title) in return for statutory forms of title and other measures to meet Indigenous aspirations.[7]

RELATIONSHIP OF THE PROJECT TO OTHER RESEARCH

Element A of the Project involves an analysis of the various Australian Land Rights Acts. There have been several studies at the level of overview.[8] However, there is a need for a more closely focussed analysis of law and practice as they have developed to date.
Element B, the comparative study, will be largely new. Some comparative papers were written for the particular purposes of the Aboriginal Self-Government project conducted in the 1980s at the Institute of Inter-Governmental Relations at Queens University, Kingston in Ontario, Canada. But there is a need for more comprehensive, up-to-date analyses directed to the Australian context.
Element C relates to the recent study of the Aboriginal Councils and Associations Act 1976 (Cth). (The ILC was a collaborating body in this important project.) It is probable that the Project will be able to draw on this work without much need for further research on this specific topic. But research is needed on related issues involving Indigenous peoples' organisations.
Element D is essentially new -- a study of experience under the Native Title Act to date.
Element E is largely new but is able to draw on some work that has been done in such matters as co-management of national parks[9] and Indigenous peoples' inputs into regional environmental management.[10]
Element F builds on other elements. There has been some work done, particularly on regional agreements, but those studies need to be pulled together with a specific focus on the institutional mechanisms adopted for the Indigenous peoples concerned.
Comparative material from the USA, Canada, New Zealand, Scandinavia and Greenland will be referred to throughout.
The overall Project is a new one.

OTHER COLLABORATING BODIES

The assistance of AIATSIS will be sought through both its Native Title Research Unit (which has direct links with `representative Aboriginal/Torres Strait Islander bodies') and through its recent project on the Aboriginal Councils and Associations Act 1976 (Cth).
ATSIC will also be invited to assist. ATSIC is the vehicle for funding representative Aboriginal/Torres Strait Islander bodies, and convenes meetings of such bodies from time to time.
The former Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Michael Dodson, had specific responsibilities under section 209 of the Native Title Act to report annually on the operation of the Native Title Act and its effect on Indigenous peoples' human rights. His reports have provided outstanding analyses of the strengths and weaknesses of the legislation in practice. Such work continues within the Human Rights and Equal Opportunity Commission. The investigators have direct links with the Commission, and with staff responsible for the Native Title issue, and will invite their co-operation.
Input will be invited from bodies with relevant expertise, including the North Australia Research Unit (NARU) of the Australian National University in Darwin, the Centre for Aboriginal Economic Policy Research (CAEPR) at the Australian National University and the National Indigenous Working Group on Native Title. The assistance of individual experts will also be invited.

[2] Associate Professor Meyers designed a national Conference in Darwin on `Indigenous Land Use Agreements' on 26-29 September 1995 convened by the NNTT, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Commission. Professor Nettheim was invited to participate and to chair one of the Working Groups for the Conference.
Professor Nettheim has participated with NNTT personnel in Conference discussions for Indigenous organisations (eg Torres Strait Regional Authority, and IINA Torres Strait Islander Corporation) about native title and related issues.
The President of the NNTT invited Professor Nettheim to present the opening paper in a two-day Workshop on Native Title for Federal Court judges held in Sydney on 29-30 March 1996.
The ILC has worked closely with the Sydney office of the NNTT in conducting workshops on native title issues. In particular, the two bodies have developed a training initiative for NSW State Government departments and agencies in association with the Department of Land and Water Conservation.
Professor Nettheim and Associate Professor Meyers have regularly had students undertake research projects on topics suggested by the NNTT, with copies of the papers being presented to the NNTT on completion.

The NNTT and the ELPC are currently co-operating on a research proposal related to the history of the Australian land rights movement.
[3] Milirrpum v Nabalco (1971) 17 FLR 141.
[4] A number of other provisions in the Native Title Act refer to prescribed bodies corporate.
[5] Mabo and Pareroultja v Tickner (1993) 117 ALR 206. See G Nettheim `The Relationship between Native Title and Statutory Title under Land Rights Legislation' in MA Stephenson (ed) Mabo: The Native Title Legislation UQP 1995, 183.
[6] Pt 2 Div 3 Subdivs B, C, D, E.
[7] Examples of such agreements include: the Mount Todd agreement between Zapopan NL, the Jawoyn Association and the Northern Territory Government; and the Cape York Draft Heads of Agreement involving the Cape York Land Council, the Peninsula Regional Council of ATSIC, the Cattlemen's Union of Australia Inc, the Australian Conservation Foundation and The Wilderness Society.
[8] For example H McRae, G Nettheim and L Beacroft Indigenous Legal Issues: Commentary and Materials LBC 1997; The Laws of Australia Title 1.3 LBC 1995.
[9] See, eg, S Woenne-Green et al (eds) Competing Interests ACF 1995.
[10] See, eg, Professor Mary Wood `Tribal Management of Off-Reservation Living Resources: Regaining the Sovereign Prerogative' paper delivered at Indigenous Land Use Agreements Conference 26-29 September 1995 Darwin.