Parry Agius and
Sandie Jarvis (Native Title Unit, Aboriginal Legal Rights Movement,
Adelaide) and
Richie Howitt (Department of Human Geography, Macquarie University, Sydney) *
Paper for presentation to the Native Title
Conference 2003
Alice Springs, Northern Territory, 3-5 June 2003
Australia’s
evolving Native Title system fails to deliver sustainable self-determination to
Aboriginal people.[1] Indeed,
racist amendments to the Native Title Act[2]
and the increasing technical complexity of the legal issues confronting Native
Title claimants have meant that Federal Court determinations have more often
affirmed Aboriginal dispossession than they have returned country to Aboriginal
people.[3]
Native Title is increasingly treated as a specialist domain for legal
technicians and not a domain where grass roots Aboriginal people achieve
justice or recognition.
Although
there are plenty of ‘negotiations’ under the auspices of the Native Title
Act[4],
the opportunity to secure political resolution and certainty through social
rather than legal engagement is being squandered by those who oppose
recognition on principle, and by those who prioritise narrowly legal strategies.
Indeed, in dismissing these opportunities, advocates of Aboriginal rights risk
contributing to transformation of Native Title into yet another means to
discipline Aboriginal people to conform to externally invented and imposed
norms.
This
paper challenges currently conventional thinking about Native Title. It argues
that social and political engagement of grass roots Aboriginal people is
necessary for building just, sustainable and equitable outcomes which build on
the triggers for social change constructed by recognition of Native Title.
Drawing on our experience in South Australia we advocate a shift away from
adversarial legal thinking as the basis for resolving Native Title issues.
Although some legal strategists have belatedly voiced a similar position of
late[5],
their discussion remains abstract and distant from grass roots Aboriginal
debate. Even amongst those advocating negotiation there has been a tendency to
be construct comprehensive settlements (regional agreements) as the domain of
the major deal-makers and power-brokers. This paper is neither abstract nor
conventionally academic. It draws on over four years direct engagement with
grass roots Native Title claimants and their communities and the practical
experience of developing foundations for comprehensive settlement of Native
Title in South Australia.[6]
The
statewide process targeting negotiated settlement of Native Title issues in
South Australia commenced in 1999. It has been a forum and a process where
discussions have moved well beyond the confines of technical legal issues and
opportunistic deal-making about specific future acts. The South Australian
Native Title Representative Body, the Aboriginal Legal Rights Movement, has
drawn on both legal and human services insights in developing its approach to
Native Title issues. In particular, we have always tried to remember that,
whatever else is going on, Native Title is about people. In practical terms,
this has meant that ‘experts’ have not driven the South Australian process.
Rather it has delivered information, challenge and expertise into a largely
Aboriginal political debate about how people should best act to secure their
rights and interests.
While
the drafting of any final settlement remains a long way off, the process was
designed to deliver meaningful outcomes along the way rather than locking
claimants into waiting for an all-or-nothing settlement solution. To date the
process has delivered significant procedural, emotional and substantive
outcomes[7],
including:
· High levels of community and stakeholder
participation in relationship-building and cross-cultural recognition;
· Establishment of the Congress of South Australian
Native Title Management Committees as a recognised peak body on Native Title
issues in the state;
· Development of NTMCs’ capacity to make decisions
for themselves and to participate directly in decision-making and deliberations
about Native Title and Indigenous rights;
· Significant increases in the capacity of NTMCs and
the Congress to drive and manage complex negotiations;
· Reduced anger, frustration and time delays for
Native Title interests and other parties in Native Title processes;
· Withdrawal of a Government argument that Native
Title was historically extinguished across the state in 1836;
· Substantial amendment of the Confirmation and
Validation Bill before it was presented to the South Australian Parliament
in December 2000;
· Aboriginal representation on the State Government’s
Ministerial Advisory Board;
· Several Pilot Projects involving negotiations
between Native Title Management Committees (NTMCs) and development interests,
which have produced Memoranda of Understanding (MOUs) and Indigenous Land Use
Agreements (ILUAs)with support from the South Australian Congress of Native
Title Management Committees;
· On-going multi-stakeholder working parties actively
reviewing a range of issues, including Aboriginal heritage management, National
Parks and land access; and
· Continuing engagement from Native Title claimants,
the State Government (including both Liberal and Labor majority governments),
the South Australian Farmers Federation (SAFF) and the South Australian Chamber
of Mines and Energy (SACOME) on issues of policy and process.
These
outcomes are significant and have facilitated a degree of Aboriginal, industry
and Government confidence in a process that targets a transformative approach
to the politics of Native Title. In light of the hostility at the Federal
scale, the ongoing commitment of the South Australian parties to this process
is a significant achievement in its own right. There has been no legal
imperative driving these engagements in South Australia. So the continued
commitment of Aboriginal, industry and government stakeholders to discussing a
comprehensive settlement package suggests that they see the process delivering
outcomes that are more valuable, certain and robust that the alternatives. In
our view, supporting negotiations that secure strong foundations for Aboriginal
self-determination and Aboriginal peoples’ participation in and contributions
to nation-building both Aboriginal and inclusive national processes should
be the urgent priority of both public and Aboriginal policy.
Jonas
(2003: 7) notes that the Commonwealth has ‘expressed its absolute opposition to
any recognition of a right to self-determination or collective status for
Indigenous peoples in its domestic policy approach’.[8]
This position has contributed to a polarisation of Australian politics. It
seems that it has also produced a hesitation to discuss transformational
politics amongst the advocates of Aboriginal rights. The Federal Government’s
belligerent response to ideas of reconciliation, social justice and the rights
agenda has brought forth a level of confusion and myopia amongst Aboriginal
advocates. The rush to secure minor gains in deal-making at the cost of
attention to good process and the principles of social justice and
self-determination put the prospects for grass-roots nation-building by
Aboriginal groups at considerable risk.[9]
In
our view, it is better to reconsider the ideas of agreement-building,
treaty-making and self-government from a grass-roots perspective, than pursue
clever deals with lawyers. Langton (2001: 19-24) offers an overview of the idea
of a treaty in Australia. The recent history is marked by efforts to develop a
single document to provide a framework governing the relationship between
Indigenous and non-Indigenous interests at the national scale. This has been
variously referred to as a ‘treaty’, ‘compact’, ‘makarrata’ or ‘framework
agreement’. It is worth noting that much of this discussion was marked by
initiatives of national Aboriginal organizations (eg the National Aboriginal
Conference and more recently ATSIC) and non-Indigenous groups (eg Aboriginal
Treaty Committee). In these debates, few have taken seriously the scales at
which Aboriginal governance is constructed in practice. The relatively local
scale at which autonomy is constructed within Aboriginal polities means that
top-down imposition of any comprehensive settlement will, at best, be a
source of internal dispute and friction within Aboriginal domains.[10]
More
appropriately, agreement-building needs to proceed hand-in-hand with the
process of building the capacity for and institutions of Aboriginal
self-government from the bottom-up. Aboriginal people themselves are the
principals in such agreements not their lawyers and other ‘representatives’.
In making such agreements, there are political decisions to be
considered. These are properly within Aboriginal domains at the scale at which
people exercise self-governance. This is not the scale at which
discussions between external experts occurs within domains dominated by
non-Aboriginal institutions and stakeholders. The politics of these processes
are best understood as constructed within and between claimant groups, and it
is essential that these political decisions are properly political. They are not
expert issues. They are properly matters about which Aboriginal polities must
debate and make value judgements of their own. They are questions that we
cannot afford to have experts take responsibility for, because to do so is to
take responsibility away from those who should, under Aboriginal Law, properly
exercise it with accountability to those Aboriginal polities. In other words,
to allow experts to become the scapegoats for political failure is to again
patronise Aboriginal decision-making.
The
pattern that we see emerging in many settings is that it is precisely these
political judgements, these questions of how Native Title claimants as some
sort of self-governing entity represent themselves in the discursive spaces
of Native Title claims, ILUA negotiations, and broader lobbying efforts, that
are being hijacked by technical advisers as if they are technical questions.
Without
seeking to identify specific circumstances, or to criticise individual groups
or representatives, we believe that many Aboriginal people would recognise
similarities with their own circumstances when we suggest that legal and
anthropological advice is often more influential on the preparation of claims
than the expressed wishes of the claimants themselves. Claims are written to
conform to the advisers’ understanding of the provisions of the Native Title
Act rather than to the claimants’ decisions about how they want to
represent themselves to the wider world. The conventions of Aboriginal Law are
less influential in guiding development negotiations than the financial
information provided to and interpreted by external experts. The staff and
advisers of representative bodies abrogate political undertakings given by
Aboriginal leaders to those they lead. Experts interpret as ‘inappropriate’ or
‘too ambitious’ or ‘unrealistic’ Aboriginal peoples’ efforts to represent
themselves as self-governing under their own terms their efforts to exercise
sovereign autonomy. The line between receiving instruction and giving advice is
far more blurred than it should be. And the resources to do things differently
are subject to the control of other experts and Aboriginal decision-makers who
are more accountable to their political masters than to Aboriginal Law or
Aboriginal people.
In
such settings, agreement-making is reduced to a professional task for qualified
experts who report back to the Aboriginal principals about what could or could
not be achieved and advise them to sign-off on agreements that are poorly
understood within the polities that should be overseeing their implementation,
and governing their enforcement. And the experts go back to their academic or
professional lives, and the Aboriginal principals are left to wonder what
happened to the promise of recognition through Native Title.
Clearly,
we believe the South Australian approach illustrates a very different approach
to agreement-making. It is not about making a deal, but about shifting the
relationship between Aboriginal and non-Aboriginal people and effectively
rebuilding the State with recognition of Native Title and Aboriginal rights
built-in. We take as self-evident that informed political judgement about how
their society is represented to the wider world through claims, negotiations
and other activities, and about the balance between litigation, legislation and
negotiation in pursuing settlement of Native Title issues, is the
responsibility of Native Title claimants themselves, not of their advisers.[11]
Our vision has been based on ten core principles:
1. Native Title is about people, not legal
technicalities: agreement-building must be
about relationships between people and cannot be reduced to a legal definition.
2. The standing of the Aboriginal claimants as the
principals in the negotiations:
Native Title rights are real property rights that make Aboriginal people a real
part of South Australia.
3. Non-extinguishment: agreement-building should not require
extinguishment of Native Title.
4. Self-determination: agreement-building should be an exercise of
self-determination not a precondition for it.
5. Fairness:
agreement-building should be fair all participating groups should be better
off, and none should be worse off because of an agreement, including not only
Native Title interests, but also other Aboriginal groups and non-Aboriginal
interests.
6. Inter-generational equity: agreements should recognise the principle of
inter-generational equity, because they are likely to set important aspects of
the conditions facing Aboriginal people for several generations they should
not short term deals.
7. Sustainability: negotiated outcomes should be sustainable for the Aboriginal
principals.
8. Meaningful benefits: negotiated outcomes should be meaningful to the
Aboriginal principals - agreement-building is only worthwhile if the Aboriginal
principals judge that it will produce outcomes they want.
9. Benchmarks: to
be worthwhile, outcomes should not only be better than exist now, but should
also be better than can be achieved through other means (eg litigation or
legislation) and reasonable against appropriate benchmarks (eg in comparable
international settings). Appropriate benchmarks should be reviewed over time
and opportunities to improve benchmarks should be taken from time to time.
10.
An act of
choice, not the only choice: agreement-building
should not lock Aboriginal people into an ‘all-or-nothing’ situation, where
they rely on complete settlement to achieve any gains at all - Aboriginal
people should continue to negotiate only if they judge it to be producing
worthwhile outcomes.
In
supporting the NTMCs exercising self-determination and informed political
judgement, the Native Title Unit of the Aboriginal Legal Rights Movement
secured State Government funding to bring together a number of large meetings
of the NTMCs to receive information, debate options, set policies and make
decisions.[12] A Technical
Advisory Group was established and undertook most of the provision of technical
advice to the NTMCs.[13]
In addition, a Secretariat was established within the NTU to provide logistical
support for meetings, and to ensure good communication between claimants, the
NTMCs and the NTU.
Agius
and Williams will discuss details of the process developed in South Australia
elsewhere in this conference, but it is appropriate to sketch out some elements
of process that reflect the principles outlined in the vision for the statewide
process.
The
process was initiated in May 1999, when the State hosted a meeting with
representative from the South Australian Chamber of Mines and Energy, the South
Australian Farmers Federation and the Aboriginal Legal Right Movement. At that
meeting, the Solicitor-General identified three key questions:
· Was a negotiated agreement
about Native Title issues a realistic possibility?
· Should the Government put
resources into supporting development of a negotiated agreement?
· What principles, if any,
divide the parties and how might the Government best respond?
Each of the participants identified their key
concerns and issues, but it emerged that all parties thought there were good
prospects and reasonable support available to move towards negotiation of a
range of statewide and local level agreements. ALRM made it clear that the
Native Title claimants would need to be involved in such negotiations directly,
and that any decision about signing-off on any proposals would be a matter for
the claimants themselves. After receiving the Solicitor-General’s report, the
Government gave in-principle support for a meeting of Native Title Management
Committees to discuss the idea.
Converting in-principle agreement into needed
resources took several months all of which increased the opportunity for
misunderstanding to grow and for misinformation to circulate. In the meantime,
ALRM organized an advisory meeting, with invited contributions from a range of
state and national figures in Adelaide in September 1999. Information from this
session was used to prepare materials for circulation to NTMCs. The State
Government eventually agreed to meet the costs of a large meeting and all NTMCs
were invited a meeting at Port Augusta in December 1999. Over 120 delegates
attended that historic meeting. Discussion was open, robust and constructive.
The delegates were suspicious of the negotiation proposal, but interested. They
confirmed that they could not formally decide on the proposal until they had
been able to consult with their full Management Committees and their wider
communities.
Delegates
were provided with information and encouraged to discuss the issues with people
from their groups in the weeks after the meeting. Minutes of the meeting were
circulated along with video and newsletter materials. The NTU agreed to
organise a second meeting. The Attorney General was invited to speak directly
to the delegates, and additional resources were sought from the State
Government and other sources. The NTU also organised an information session
about the meeting for industry stakeholder groups and the NNTT, ensuring they
were kept informed directly.
The second meeting was held in
Port Augusta in late February 2000. The Attorney General spoke about the
Government’s motivations in offering a comprehensive settlement of Native Title
issues and his view of the key issues involved. Delegates to the meeting also
took the opportunity to voice their concerns and aspirations, and to criticise
aspects of the Government’s draft legislation. In discussions at the meeting
ALRM made the several key points strongly to the NTMCs:
· ALRM’s job was to guide
and advise NTMCs on matters relating to Native Title (not to negotiate for
them).
· ALRM’s role was to get the
funding, training and information to Native Title claimants so that they could,
if they wanted to, enter into talks with the SA Government, to facilitate the
NTMC’s work getting ready to negotiate, and to ensure that statewide issues are
included in the process.
· If NTMCs chose to go
ahead with the talks, they could pull out at any time without losing protection
of the Commonwealth Native Title Act.
· ALRM’s
position was that existing Native Title rights were not negotiable, and that
there should be fair, equitable and sustainable outcomes for all claimant
groups.
These
principles were further clarified in the February meeting. The Attorney General
made it clear that the Government was willing to enter into very broad
discussions and agreed to consider concerns raised about the draft legislation.
NTMC delegates authorised ALRM to “proceed with getting the resources for the
Management Committees to meet and discuss these issues and to continue the
support and training needed for any negotiations to proceed”.[14]
The final resolution from that meeting went on to say:
This meeting agrees to inform the South Australian
Government that the Native Title Management Committees represented at this
meeting are willing to express in-principal agreement to negotiations aimed at
producing a formal agreement about native title in South Australia once the
Government agrees to resource these processes and cooperate with the Native
Title Management Committees and ALRM in these matters.
This means that ALRM’s job is to help the native title
claimants by getting resources for to understand what the government is up to,
to bring the Management Committees together for training and discussion, and
for the Committees to decide about whether they want to negotiate or not. It
does not mean that ALRM will be able to negotiate on your behalf. It also
supports ALRM playing a role in coordinating and supporting the Aboriginal
negotiating team, organising, training and guiding native title claimants in
negotiations, and ensuring fair, equitable and sustainable outcomes for all
claimant groups.
Any proposal to sign-off an agreement with the South
Australian Government will require specific authorisation following the giving
of informed consent by relevant claimants or their delegated representatives.[15]
In this
resolution, one sees the NTMC delegates clearly taking control of the process
and setting terms for ALRM’s role as the Native Title Representative Body. In
March ALRM submitted a budget proposal to run a series of consultative meetings
to allow NTMCs to consider the proposal and to support preparation for
negotiations if they were agreed to by NTMCs. Funds were approved by the
Attorney-General in May 2000. While ALRM was accountable for the funds, there
were no significant strings attached to the substantial amount made available.
Training materials aimed at supporting NTMCs in developing negotiating skills
and identifying specific needs of various groups were developed and piloted,
and a schedule of public meetings and NTMC sessions planned. Although
originally envisaged as a series of regional meetings, the responses at the
pilot session led us to move to a series of statewide meetings at which NTMCs
were able to move towards united decision-making. A series of three
“congress-style meetings”[16]
was scheduled for different areas of the state, and a fourth regional meeting
for claimants from the northwest, where there was a large group of people for
whom English was a second or third language.
Subsequent
meetings saw the NTMCs formally come together as a ‘united voice’, using the
label South Australian ‘Congress’ of Native Title Management Committees, and
enter into direct negotiations with the Government to secure additional funding
to meet modest sitting fees for delegates in addition to travel costs. They
postponed sessions at one Congress meeting in December 2000 to attend the State
Parliament to watch debate of the Confirmation and Validation Bill.
Disgusted by the failure of the Parliament to respond to their concerns and the
way in which the debate and voting proceeded, the delegates returned to the
Congress to affirm the commitment to working together to avoid being sidelined
by the political process. The meeting then debated and passed a no confidence
motion in the then Premier of the State and the Minister for Aboriginal Affairs
and also included the following points:
·
The
Congress of Native Title Management Committees strongly supports Aboriginal
representation in both houses of Parliament.
Furthermore, we urge the government to enact legislation for seats in
both houses of Parliament for Aboriginal people. This must be done in
consultation with all Aboriginal groups throughout South Australia.
·
The
Congress of Native Title claimants demands the government of South Australia to
enter into serious bi-partisan negotiations of a comprehensive treaty which addresses native title
rights. Issues to be discussed will
include Aboriginal self-determination and empowerment, and self-government.[17]
Again, in
this material we see the Congress focusing on Native Title in the context of
broader political issues and exercising a powerful, self-authorising sense of
their own political responsibility.
This
is, we believe, the greatest lesson, and challenge, from the South Australian
experience. We have pursued a process in which we have not been telling people
what to do, nor how to do, but asking them how they think it should be done,
and facilitating their doing it. In the process, we have improved the capacity
of the ALRM and its staff and consultants to be responsive to leadership from
the NTMCs, and we have, perhaps surprisingly, substantially improved the
capacity of government and industry stakeholders to recognise and respond to
this leadership also.
The
intention is to provide NTMCs with a skills base, information resource, and
support network that will encourage, support and facilitate the development of
ILUAs at several scales, upto and including the whole-of-state scale, with
various emphases, and laying foundations for a shift away from a public and
official view of Native Title as a set of concessionary and compensable rights
to a practical foundation for self-determination, indigenous governance and
full participation in public administration of Native Title domains. We have
aimed to ensure that Government or industry interests do not push the NTRB into
negotiating in ways that are not authorized, or ways that marginalize the
Aboriginal principals, the grass roots claimants, or depending upon external
experts more than is strictly necessary.
Delays
in securing the substantial resources needed for this process have produced
problems of credibility, acceptance and trust. Constant pressure of deadlines
from government, have not been matched by a willingness to provide funds
required to meet the deadlines. Failure of ATSIC to support the process because
it did not conform to ‘national guidelines’ reflected precisely the tendency to
dismiss practical self-determination that we referred to above. For many
observers, the agenda proposed by the Congress is too ambitious to be
politically realistic. It is certainly an agenda that opens up a wide range of
questions about how to proceed. The inclusionary vision of the process must,
for example, come to terms with how to address questions of self-determination
for Aboriginal people who are not able to register Native Title claims; how to
respond to the concerns of Aboriginal organizations working in fields outside
land and resource management; how to expand the vocabulary of recognition to
encompass co-service arrangements as well as co-management of significant
areas; how to tackle questions of legislative reform, administrative reform and
even constitutional reform.
For
some, it is easier to remain within the bounds of an inadequate legal framework
that is simply failing to deliver outcomes that are acceptable to grass roots
Aboriginal people. While some recent agreements raise prospects for
wide-ranging negotiations that are not dependent on legal triggers, Governments
have been generally unwilling to cooperate. Successive South Australian
Governments, however, have remained at the table, along with industry groups,
grappling with the same issues as the Congress and the ALRM. Among these complexities is the need for a
multi-layered governance approach on the Aboriginal side, and for its
appropriate recognition and support from Government and others. It is essential
that the governance structures that are developed respect the role of local
Aboriginal people making decisions on their own country and acknowledge that a
comprehensive settlement that is just and sustainable will require consultation
with anticipation from a range of other Aboriginal interests in the State -
that the State has a responsibility to an outcome that is equitable to all its
citizens, Aboriginal and non-Aboriginal, and not just native title holders.
The
prospects for success are hard to judge, because so much will depend on the
capacity of the Congress and its constituent NTMCs to rise to the challenges of
maintaining a “united voice” in such complex circumstances, and the capacity of
other stakeholders to carry their own constituencies to outcomes that not only
settle Native Title issues in the State, but also transform the basis on which
Aboriginal citizens participate in and contribute to the State. South
Australia’s proud history of social innovation may provide a basis for
optimism, but in the end, the outcome will involve a considerable amount of
hard work, patience, tolerance and vision.
References:
Agius, P. and J. Davies (2002). Initiatives
in Native Title and Land Management in South Australia: the Statewide Native
Title Negotiations Process, Australian Rangelands Society Conference,
Kalgoorlie, September 2002.
Agius, P., J. Davies, R. Howitt and L. Johns
(2001) Negotiating Comprehensive Settlement of Native Title Issues: building a
new scale of justice in South Australia, Native Title Representative Bodies
Legal Conference, Townsville, August 2002. (published at http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/IP20v2.pdf)
Cornell,
S. and J. P. Kalt (2002). Sovereignty and Nation-Building: the development
challenge in Indian country today. Tucson, Udall Center for Studies of
Public Policy, University of Arizona (paper presented to ATSIC National Treaty
Conference. August 2002).
Howitt, R. (1997): Getting the scale right: the
geopolitics of regional agreements. Northern Analyst 2.15-17.
Jonas, W. (2001): Aboriginal and Torres
Strait Islander Social Justice Commissioner Native Title Report 2000, Human
Rights and Equal Opportunity Commission, Sydney.
Jonas, W. (2003): Aboriginal and Torres
Strait Islander Social Justice Commissioner Social Justice Report 2002,
Human Rights and Equal Opportunity Commission, Sydney.
Langton,
M. (2001): Dominion and dishonour: a treaty between our nations? Postcolonial
Studies. 4(1):13-26.
Morrison,
J. (2000): Uniting the Voices: decision-making to negotiate for Native Title
in South Australia. Report of the independent review of Aboriginal Legal Rights
Movement Native Title Unit’s facilitation of decision-making by South
Australian Native Title Management Committees, July-October 2000,
Aboriginal Legal Rights Movement, Adelaide.
O’Donnell,
M. (2003): A proposal to reconsider comprehensive claims settlements n
Australia, April 2003, John Toohey Chambers, Darwin.
* Parry Agius can
be contacted at ParryA@nativetitlesa.org
Richie Howitt can be contacted at rhowitt@els.mq.edu.au
[1]
In this paper we refer specifically to Aboriginal Australians, rather than
seeking to apply our analysis to the particular circumstances of the Torres
Strait, where the coincidence of the development of coherent regional agencies
and recognition of Native Title possibly provide a firmer foundation for
optimism about regional self-determination for Torres Strait Islanders.
[2]
For a comprehensive account of why the 1998 amendments to the Native Title
Act breached Australia’s obligations under the Convention for the
Elimination of All Forms of Racial Discrimination see Jonas (2001, chapter
1).
[3]
While judicial rejection of the doctrine of terra nullius in the Mabo
decision represented a major shift in judicial thinking, subsequent decisions
have restricted the extent that this shift has addressed Aboriginal
dispossession. To date, the Federal Court has determined only forty-five
claims. Nearly 600 remain to be dealt with. Only seventeen of these forty-five
claims have demonstrated the existence and persistence of Native Title across
the entire claim area. Fourteen of the claims were found to have no Native
Title persisting in the claim area, including significant litigated
determinations in New South Wales (Yorta Yorta) and South Australia (De
Rose Hill). Even in those areas where Native Title was determined as
continuing to exist, many of the determinations have insisted on major
restrictions in favour of non-Indigenous interests. For example, in the Croker
Island case (September 1998), the Federal Court insisted that Native Title
rights did not provide for an exclusive interest in sea territories and their
resources. The critically important right to manage Native Title property has
been largely reduced to a right equivalent to the general public’s right to use
a common property resource. In the Wik determination, state legislation
that clearly breached contemporary human rights standards was found to legally
extinguish Native Title in mining lease lands of western Cape York Peninsula.
In the Miriuwung-Gajerrong and Balangarra determination (August
2002), the High Court disallowed Aboriginal claims to interests in water and
sub-surface minerals. On appeal, the court concluded that the Howard
Government’s amendments to the Native Title Act required that Native
Title is essentially a ‘bundle of rights’, which cannot be revived once
extinguished by a legal act by the Crown. The Western Division Leases case
(Wilson) in NSW (August 2002) found that leases issued under the Western
Land Act 1901 (NSW) had extinguished Native Title, effectively excluding
Native Title from most of Western NSW.
[4] Native
Title Act 1993, Division 3, Subdivisions B-E.
[5]
See for example, O’Donnell 2003.
[6] Rather than proposing a model derived from
Canadian experience, or focused on a singular treaty at the national scale, the
paper advocates a bottom-up approach to developing such agreements and
emphasises the need for committing resources to community capacity-building as
part of the process, rather than processes led by external experts, which have
so often failed to take the notion of Aboriginal self-government seriously.
[7]
The triangle of procedural, emotional and substantive needs in negotiations is
drawn from the work of Rhîan Williams and is developed more fully in her
presentation at this conference with Parry Agius.
[8]
Jonas notes, for example, that ‘Australia is one of only four countries that
actively pursue the rejection of Indigenous peoples’ self-determination and
collective rights in the annual negotiations on the Draft Declaration on the
Rights of Indigenous Peoples at the United Nations’ (2003: 7).
[9]
We use the term ‘nation-building’ here in the sense it is used by Cornell and
Kalt (2002).
[10]
Howitt (1997: 16) makes the point that a range of factors from both Aboriginal
and non-Aboriginal domains make “negotiation of comprehensive land claim
settlements at the sort of spatial scale that has occurred in Canada”
difficult. He further notes that “the specific political processes which should
be recognised and empowered in efforts to advance recognition of and respect
for indigenous rights … are built on local rather than regional geographies in
most parts of Australia. They are built on clan and family structures rather
than organised ‘indigenous nations’. In other words, for many Aboriginal
groups, sovereignty is derived at a much more local scale within the particular
relationships between people and their country, rather than in the
institutional infrastructures of ‘national’ government and leadership. This is
the geopolitical reality within which Aboriginal negotiators and their support
staff and resource people must be held accountable.”
[11]
To think otherwise is to simply deny Aboriginal people a right of
self-determination. It is akin, to draw on the imagery of Rhîan Williams (pers
comm.), to the Commonwealth Public Service saying that they feel the
Parliament should be abandoned because people in the Parliament are hard to
deal with!
[12]
In an effort to maintain a level of transparency and accountability to the
NTMCs, the NTU commissioned an independent review of the process (Morrison
2000). The report of this review is available on request from ALRM NTU.
[13]
Howitt, an academic geographer, was the leader of the Technical Advisory Group.
Collett provided legal advice, along with Mr Malcolm Gray, QC, a former South
Australian Solicitor-General. Dr Mike Metcalf, who had been a senior advisor to
a previous State Treasurer, provided political and financial advice, Dr Jocelyn
Davies, also a geographer, provided advice on environmental and other issues,
Ms Lesley Johns, a media consultant, provided media and communications advice,
Rhîan Williams provided advice on procedural matters, Don Blesing provided advice
on pastoral matters, and Jo Fox and Venessa Kealy provided research and
administrative support. Some additional specialist reports were commissioned on
specific topics, but total consultancy costs were kept below 30% of total
costs, including payment of this Technical Advisory Group.
[14]
Resolution of Meeting of NTMCs, Port Augusta 27 February 2000.
[15] Ibid.
[16]
Morrison 2000: 48)
[17]
Text of a no-confidence motion passed at the meeting of the South Australian
Congress of Native Title Management Committees in Adelaide, 9.12.2000, emphasis
in original.