Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
Although the term regional agreement has been borrowed from the Canadian experience, regional agreements in Australia will have their own character and, if they are to grow out of community needs will necessarily take diverse forms.
In the Canadian experience, the trigger for regional agreements has been the existence of native title. Similiarly, in Australia, a native title claim or the formal recognition of the existance of native title, may act as triggers for negotiation. In fact regional agreements are provided for in the Native Title Act , 1993. Native title holders may, under an agreement with Commonwealth, State or territory Governments, surrender their native title rights and interests in relation in realtion to land (s21(1)(b)). Such agreements may be made on a regional or local basis (s21(4)).
A trigger for regional agreements may therefore be the legal and political uncertainty remaining as to whether native title exists in a given area of land or sea, or how its existence will effect other stakeholders. The effectiveness of the National Native Title Tribunal remains to be seen. Not all Native Title issues have been resolved by the Mabo case and the Native Title Act 1993 (Cth). Resource and tourist developments, for exapmle, cannot proceed without an efficient legal approval system. Costly and time consuming challenges could be avoided by the processes established under regional agreements.
However, there does not appear to be any good reason why Australian regional agreements should be based only on settling native title claims. There are a number of `triggers' which should be the basis for agreements. For example, Indigenous peoples and communities throughout Australia could use regional agreements to consolidate existing programmes and resources. The bargaining trigger would be efficiency, better Aboriginal economy and skills. Another trigger for regional agreements in relation to management of land, sea, resources and conservation areas is that Indigenous peoples who live in thee areas bring unique skills, knowledge and resources. The success of land-care groups can be used as an illustration of the effectiveness of local involvement and control in these areas. Australia could be a world leader in this process.
With respect to waht is to be negotiated, this will depend on the specific needs and choices of Indigenous peoples and communities in a region. Regional agreements could include any (or all) of the following topics:
· Settlement of Native Title Claims . Individual claims under the Native Title Act, 1993 can be negotiated through the processes under the Act. However, this could be costly and time-consumong for Aboriginal and Torres Strait Islander claimants. There will be `winners' and `losers' and there may be arguments between Aboginal people over who belongs to what land. Once Native Title holders could negotiate regional agreements under Section 21(1)(a) ( relinquishing Native Title) or Section 21 (1)(b) ( not relinquishing Native Title) under the Native Title Act , 1993.
Alternatively, regional agreements could result in specific legislation which overrides inconsistent State and Federal laws. Native Title claimants could seek to negotiate regional settlement of claims to land and sea outside the Native Title Act , 1993. In Canada, the `exchange' of Native Title (for see simple title and other legal rights) through federal legislation is backed up by Constitutional guarantees. This guarantee is not essential for a settlement but it is preferable, given the significance of Native Title to Aboriginal peoples. The more recent Canadian agreements have not required a surrender of all Native Title rights. Specific legislation could provide that Native Title rights could continue for land which is successfully claimed by Aboriginal peoples and granted in fee simple.
· Extending Aboriginal Control Over Land and Sea Use and Resource Decisions . Regional Agreements can be negotiated to provide for Aboriginal control of land-use and development on land that they own. Resource royalty may also be granted to them for development on this land. This can provide a financial base for further Indigenous economic initiatives in the region. There is a precedent for this under the Aboriginal Land Rights Act (Northern Territory) 17\976 (Cth). However, policies and decisions relating to areas and resources outside the ownership and control of Indigenous peoples, may affect their resources and land and sea rights. Therefore, regional agreements can create new institutions and processes which give Indigenous peoples a legal and practical right to participate in planning, development control, environmental and social impact assessment, resource allocation policies and decisions for an area which is considerably larger than that which they own. This provides the opportunity for Aboriginal peoples who cannot establish Native Title to regain some control along with Native Title holders.
· Management of Land, Sea, Natural Resources and Wildlife . Regional agreements can be negotiated to provide for Aboriginal control or co-management over their lands and the wider region. Regional agreements extend co-management from conservation (e.g. jopint management of national parks) to the management of land, resources and wildlife which is to be sustainably utilised by Indigenous and non-Indigenous people.
· Pastoral PropertiesSettling Use and Access Rights of Aboriginal Peoples . Regional agreements can be negotiated to resolve legal disputes over the co-existence of native title rights with pastoral leases. Pastoralists and the Cape York Land Council have recently issued statements that they believe that a negotiated settlement of these issues is achievable for Cape York and beneficial to all parties.
· National Parks, Conservation and World Heritage Issues . Regional agreements ensuring Aboriginal control and co-management of national parks, World Heritage areas and environmental management processes is a recognition of Indigenous rights and of benefit to all Australians.
· Participation in Resource Development and other Economic Initiatives . Regional agreements can provide the framework for Indigenous enterprises and joint ventures.
· Provision of Services to Indigenous Peoples by Indigenous Organisations . Existing funding and service delivery arrangements do not meet the basic needs of Aboriginal peoples and they are often denied the normal citizenship rights of other Australians to services such as water, housing, health and education. Direct funding to Aboriginal organizations to provide these services could be negotiated through regional agreements.
· Strengthing Aboriginal Local Government . Regional agreements provide an important opportunity to negotiate new powers and resources for Aboriginal local government, policing and community justice.
Whatever its form, what is crucial is that the process be driven from the local level, through regional organisations, and involves a high level of Indigenous participation which is outside normal bureaucratic and political channels.