MABO AND THE FRAMEWORK OF DOMINANCE
3 June 2012
Speech by Les Malezer,for the occasion of the 20th Anniversary of the outcome of the High Court ‘Mabo’ Case.
As is tradition, I acknowledge and pay my respects to the Aboriginal people who have traditional connection to the country upon which I speak, and thank them for the opportunity to be here today on this occasion.
In addition, and in solemn reverence, I respect today as always Eddie ‘Koiki’ Mabo, a man who has earnt a most prominent place in history in Australia and who gave his life to the rights of the First Peoples of Australia.
IN HONOUR OF KOIKI MABO
In some ways I regret that we are honouring the 20th Anniversary of the High Court decision, delivered on 3 June 2012, and not the 20th anniversary of the passing of Koiki Mabo, as happened on 21 January 1992.
I guess there are many people remembering Koiki Mabo but there will be only a few who had the opportunity to know him, to meet and talk with him, to share his enthusiasm for his legal challenge taken to the High Court.
I knew him and shared such discussions and so it is with a very heavy heart that I stand here in 2012 and remember those ‘Land Rights’ days.
For the first time since his passing, and only a few nights ago, I watched video footage of the very live Koiki Mabo and it was with great pain, suffering and anger that I remembered and relived those days.
While Koiki Mabo went on with a clear understanding that he was going to win his legal case very few people in Australia, at that time, had heard the name of Eddie Mabo or knew of the legal battle he was fighting.
So while Koiki Mabo is now a household name, and while all the people of Mer, many Aboriginal and Torres Strait Islander people, and most Australians and international scholars now and into the future will remember, understand and honour him, I cannot but have strong feelings for the way in which Koiki Mabo was disregarded, marginalised and rejected in his lifetime.
Unfortunately this is the lot of Aboriginal and Torres Strait Islander people who live in Australia, and who must every day cope with the ‘Framework of Dominance’ that applies in the political and legal life of Aboriginal and Torres Strait Islander people.
I know these are strong words but also I feel I am being true to the view of Koiki Mabo; and that today I speak as if it were Koiki Mabo here to express his views.
THE FRAMEWORK OF DOMINANCE
I have used the words ‘Framework of Dominance’ to describe the racial arrogance that is ever present in Australia –
· under the Constitution,
· under the power of Crown sovereignty,
· under the political and judicial institutions,
· under the wealth, power and influence from the rich and powerful,
· and under the attitudes and mindsets of the Australian public –
and which makes sure the Aboriginal and Torres Strait Islander peoples continue to be denied our full rights as peoples.
The Framework of Dominance is a creed involving legal invention – a fiction like terra nullius – to justify theft, genocide, and oppression and exploitation of a peoples by a ‘settler society’.
The Framework of Dominance is the persistence of the ‘doctrine of discovery’, the pretext used to unhesitatingly take the lands and possessions of ‘heathens’ or ‘savages’.
Koiki Mabo witnessed first-hand the Framework of Dominance in 1985 – three years after the Mabo case began its 10-year run in the courts – when the Queensland Government passed the Queensland Coast Islands Declaratory Act, which was intended to retrospectively abolish any native title rights which might have survived annexation of Mer Island by the Crown.
That Queensland Act could only be viewed one way, as an exercise of racial dominance. There can be seen no other motivation for contemplating legislation for such a vile purpose.
Fortunately the High Court ruled in 1988 that the Queensland legislation was inconsistent with the federal Racial Discrimination Act 1975, and therefore was constitutionally invalid. The Mabo case for Land Rights could continue in the High Court.
But let us remember that not all Justices of the High Court decided in favour of this rather simple and obvious ruling. It was a majority judgement where Wilson disagreed and Mason and Dawson did not decide.
We should also remember that should the Racial Discrimination Act 1975 not exist, then the Constitution of Australia would have allowed Queensland’s racist legislation to demolish the rights of the Murray Islanders.
The power to racially discriminate against the Aboriginal and Torres Strait Islander people – the First Peoples of Australia – to take way our lands, territories and resources, to treat us us outlaws in our own lands, and to deny the ‘rule of law’ is authorize by the Constitution of Australia.
I should not need to remind anyone here of this bizarre power under the Constitution because the national government is using that very power to dominate the Aboriginal people of the Northern Territory and the Aboriginal and Torres Strait Islander peoples of Australia.
I can spend a day talking of the cunning and the craft, and the corruption of the lawmakers in this country to maintain the Framework of Dominance but instead I want to turn my attention to the recent history regarding native title and the Land Rights of the Aboriginal and Torres Strait Islander peoples.
Koiki Mabo’s case to the High Court did not arise from one person’s inspiration. It arose out of the national outrage led by the Aboriginal and Torres Strait Islander peoples and their supporters about the denial of ‘Land Rights’ since colonisation.
Land Rights was actually a movement that began in 1788 when the first ‘settlers’ arrived in Australia. But is was not until the United Nations was formed after World War 2, that the Land Rights struggle grew to become a powerful force in the political life of Australia.
The eruption of the modern Land Rights movement in Australia might be attributed to the establishment of the Aboriginal Tent Embassy in 1972, or the hand back of the lands to the Gurindji people by Gough Whitlam in 1975.
But the national movement towards Land Rights can also be traced back to the creation of the United Nations in 1945.
Australia was an original member of the United Nations and it was a very respected man from Australia, Dr Evatt, who became President of the United Nations General Assembly during the formative years.
Herbert Vere Evatt, QC KStJ was an Australian jurist, politician and writer. He served President of the United Nations General Assembly in 1948–49 and during this time helped the draft and adoption of the United Nations Universal Declaration of Human Rights (1948).
The decolonization of the world and the global campaign to eliminate racial discrimination on the one hand, and the growth of the civil rights movement on the other, led to the spawning in Australia of the political Land Rights movement.
The 1950s and 1960s in Australia saw a growing consciousness about the negative treatment of the Aboriginal and Torres Strait Islanders and an awareness that equality should prevail.
From the agitations of the communist party, to the generation of the Australian black panther party to the populist crusades for Land Rights, change was demanded, to recognise that Aboriginal and Torres Strait Islander peoples should not be dehumanized, treated as social outcast nor denied ownership of our lands.
There can be seen a close connection between the global movement for freedom and rights and the national agenda.
For example, the International Convention on the Elimination of All Forms of Racial Discrimination, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights were all adopted by the United Nations in 1966.
Australia signed the Convention on the Elimination of All Forms of Racial Discrimination immediately in 1966 so it is actually no coincidence that the Constitutional referendum on Aboriginal issues occurred in 1967.
The two Convenants, on Civil and Political Rights and Economic, Social and Cultural Rights were signed six years later on 18 December 1972, immediately after the election of the Whitlam Labour Government.
Understanding that there is this convergence between Australia’s international commitment to the very relevant human rights treaties, created in the wake of global attention to not only the horrors of the second World War but the imperialism and exploitation of the peoples of the world, and the domestic political agitations for Land Rights it is possible to see that a course has been set for the recognition of Aboriginal and Torres Strait Islander rights.
In 1976, the Fraser Government enacted the Northern Territory Land Rights Act. This legislation, originally drafted by the Whitlam Government, set the standards for return of lands to the Aboriginal people under inalienable freehold title, control over mining on Aboriginal lands, and the payment of royalty equivalents where mining occurred.
Seven years later in 1983 the Hawke Government expressed support for the idea of a compact or treaty and committed itself to national Land Rights legislation. The Government established five principles to be embodied in the legislation. These five principles are:
1. Aboriginal land to be held under inalienable freehold title
2. protection of sacred sites
3. Aboriginal control in relation to mining on Aboriginal land
4. access to mining royalty equivalents
5. compensation for lost land to be negotiated
In 1985 the Government backed away from commitment to the national Land Rights legislation, for the reason that the Bourke Labor Government of Western Australia was facing re-election and the mining companies were conducting an expensive and hostile campaign in the Western Australia media against the proposed national Land Rights legislation.
Despite the political machinations in the national government the mining companies must take responsibility for opposing and defeating Land Rights in Australia.
We can see here that in Australia, in the political procedures, five very important standards for Aboriginal and Torres Strait Islander Land Rights have already been established by the national government.
ILO CONVENTION NO. 169
In 1989 the International Labour Organisation adopted the Indigenous and Tribal Peoples Convention: Convention concerning Indigenous and Tribal Peoples in Independent Countries. This is referred to as ILO Convention No. 169.
Australia has not yet ratified this treaty but in January 2011, the United Nations Human Rights Council recommended that Australia do so, as part of the Universal Periodic Review of human rights in Australia.
This convention deals with Land Rights issues in Articles 13 to 17. These articles affirm the collective relationship between Indigenous Peoples and their territories, especially the importance for the spiritual relationship that exists and the cultural values.
Articles 14 and 17 call for recognition of the rights of ownership and possession of the lands and for protection of the Indigenous Peoples from those who seek to take advantage of such ownership and possession, and customs of the people.
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
1. Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.
2. The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community.
3. Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.
Article 16 of the convention establishes that Indigenous Peoples shall not be moved from their lands and territories and that lands be returned or, with the consent of the Indigenous Peoples, be compensated ‘under appropriate guarantees’.
1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.
2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.
3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.
4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.
5. Persons thus relocated shall be fully compensated for any resulting loss or injury.
Article 15 states ‘The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.”
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
This article goes on to say that, should the State retain ownership of the mineral and natural resources, the governments shall establish procedures for consultation and that the peoples concerned will participate in the benefits and also receive fair compensation for damages sustained.
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
In Australia most relevant people are now well aware of the UN Declaration on the Rights of Indigenous Peoples.
Articles 25 to 32 of the Declaration address the Land Rights principles.
Inalienable Freehold Title
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
1 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2 Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3 States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
Compensation for lost land to be negotiated
1 Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2 Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Protection of sacred sites
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
Control over mining
1 Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3 States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
In very similar terms to ILO Convention 169 this international human rights standard addresses the right to ownership of territories and resources, the right to development of resources, return or compensation for lands taken and the exercise of free, prior and informed consent for ‘the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources’.
The Declaration has two other important provisions which apply in relation to the Land Rights principles.
The first of these is that the Declaration affirms that Indigenous Peoples are ‘peoples’ equal to all other peoples of the world and with the right of self-determination.
Self-determination carries the right to autonomy or self-government, collective ownership of territories, validity of Indigenous Peoples law and institutions, and economic development for wealth and sustainability utilising the natural resources of their territories.
The second provision is that the Declaration calls for ‘fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources’. (Article 27)
LAND RIGHTS, HUMAN RIGHTS STANDARDS AND AUSTRALIA
The human rights of Indigenous Peoples to their lands, in this situation the Land Rights of the Aboriginal and Torres Strait Islander peoples, are confirmed in three different and independent standards – the National Land Rights commitment of the Hawke Government, ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples – and these should leave no doubt in regards to the goals and benchmarks to be achieved in Australia.
We should be reminded that, in the terms of the Framework of Dominance as previously mentioned, Australia teamed up in 2007 with the United States of America, Canada and New Zealand to vote against the Declaration in the General Assembly of the United Nations.
The composition of this group and the nature of their resistance to the Declaration speaks volumes about the level of control that they have maintained and wish to continue to maintain over the rights of the Indigenous Peoples in their State boundaries.
But Australia stands conspicuously in this collective, as the only State to not have concluded historical and / or contemporary treaties with the Indigenous Peoples.
Australia relies very much upon the foundation of settlement under ‘terra nullius’ to justify and temper the policies and relationships with the Aboriginal and Torres Strait Islander peoples.
THE HIGH COURT AND MABO
When the Hawke Government reneged on national Land Rights legislation in 1985 it became the High Court of Australia, in the case of Mabo vs Queensland, to find that the Indigenous Peoples of Australia still hold entitlements to their lands.
Amid howls, from political circles and vested interests, of impropriety and misconduct the High Court decision revealed four important facts.
1. The First Peoples held collective rights as a peoples.
2. The First Peoples had ownership of their lands prior to ‘settlement’.
3. Australian Law recognises the First Peoples right to maintain their lands.
4. The Racial Discrimination Act can prevent State and Territory Governments from extinguishing these rights.
These revelations caused and continue to cause great ruckus in the nation. Unfortunately the ruckus has also led to the persistence of the Framework of Dominance, to impair and extinguish the rights of the Aboriginal and Torres Strait Islander peoples wherever achievable.
The legal findings of the High Court have since been assailed and eroded by legislation from the Australian Parliament and administrative controls being applied in the procedures for resolving disputes over native title.
In 1993, when the impact of the High Court Mabo decision was finally comprehended, the Keating Government prepared a Native Title Bill to create a process for identifying native title lands in Australia.
This legislation was intended to protect the legal status of native title, i.e. as a Common Law right, but avoid adversarial litigation wherever Aboriginal and Torres Strait Islander people want to affirm their ownership rights or wherever governments, developers or third parties wanted to utilise lands which might be held by Aboriginal and Torres Strait Islander peoples under native title.
The legislation also contained a mulititude of provisions to deal with various scenarios of vested interests in lands or waters.
For example, beaches were deemed to be excluded from native title because Australia had a policy of public beaches and waterways. Another example is that invalid titles issued over native title, since 1975 and up to 1994, were made valid.
In reflection and with closer examination these esemptions from native title are a further demonstration of the Framework of Dominance.
The Keating legislation did however offer compensation for extinguishment or loss of native title in three forms.
The Indigenous Land Fund was created, with a budget of $1.4 billion, to allow those Aboriginal and Torres Strait Islander communities who would not be able to assert their native title to purchase lands.
The Aboriginal and Torres Strait Islander communities who lost any native title in the validation of Torrens titles between 1975 and 1994 would be able to claim compensation, providing they could first prove they held native title at the time the land was alienated.
Native Title holders who were faced with developments over their territories would have the ‘right to negotiate’ including the right to achieve just terms with the proponent or developer should the proposal for development be successful.
The Native Title Act 1993 had its faults but overall it represented a major step forward from the status quo before the Mabo decision.
However the legislation was severely amended in 1998 by the Howard Government to provide, in the terms of the Deputy Prime Minister, ‘bucketloads of extinguishment’ of native title.
Using constitutional powers to make discriminatory laws against Aboriginal and Torres Strait Islander peoples and true to the resolve of the Framework of Dominance, the Howard Government decimated the Common Law terms of native title and created instead a statutory form of Native Title. This title required the Aboriginal and Torres Strait Islander communities to prove that they held continuing connection to their lands and territories which was consistent with the customs and ceremonies of 1788 or thereabouts.
For many communities this was impossible or highly problemative. To compound the process the oral evidence of the Aboriginal and Torres Strait Islander peoples was regarded by the legal institutions to be inferior to the written historical records, records known to be in most cases inaccurate and predisposed to cultural prejudices.
The 1998 law also so severly restricted the procedures for negotiation of developments or exploitations, that the Aboriginal and Torres Strait Islander communities are for all intents and purposes unable to resist incursions into their land or negotiate just terms.
One other major impact upon the native title was the decision by the Howard Government to exclude large tracts of leasehold land from native title claims by declaring specific leasehold titles to be exempt from native title claim procedures. In Queensland this excluded one third of the entire State area from being considered as native title lands.
There are many other aspects of extinguishment or negative impact upon the Aboriginal and Torres Strait Islander peoples.
RACIAL DISCRIMINATION BY THE AUSTRALIAN GOVERNMENT
In 1989 one year after the drastic amendments to the native title legislation and under the emergency action procedures of the Convention on the Elimination of All Forms of Racial Discrimination, the Australian Government was called to appear before the international Committee on the Elimination of Racial Discrimination (CERD).
Following lengthy examination of the laws and policies of the government the Committee found that Australia was in breach of the International Convention on the Elimination of All Forms of Racial Discrimination, and called upon the government to enter into negotiations with the representatives of the Aboriginal and Torres Strait Islander peoples to achieve a mutually-acceptable arrangement for native title outcomes.
The Howard Government dissented and refused to accept or consider the findings. The Committee has on a number of occasions since repeated this recommendation and continues to this day to declare the native title laws as discriminatory and in need of revision.
The findings of the Committee have been reinforced by further examinations from a number of United Nations special mechanisms on human rights, but the native title laws continue today unaffected by the concerns of racial discrimination against the Aboriginal and Torres Strait Islander peoples.
We must remember also that in 1998 the Joint Parliamentary Committee on Native Title issued a majority report signed by government politicians supporting the Native Title Amendment Bill but at the same time the Labor Opposition released its detailed response in which it argued the government’s legislation was unconstitutional and “riddled with racism”.
The Rudd and Gillard Government have not addressed the concerns of CERD.
The Framework of Dominance continues unabated and unconcerned.
SPECIAL AND CONCRETE MEASURES
It is interesting to note the various comments of the High Court justices in regard to the case of Mabo vs Queensland (1) regarding the Queensland Coast Islands Declaratory Act.
In the judgments the justices consider the meaning and interpretation of Articles 1 and 2 of the Convention and how ‘special measures’ might be regarded.
It is clear from that consideration, and other legal discussions since that time, that more attention must be given in Australia to the Convention on the Elimination of All Forms of Racial Discrimination, ‘special measures’, and the relationship between States and Indigenous Peoples. CERD has issued at least two General Comments which help clarify certain provisions of the convention.
Following the 1998 amendments to the Native Title Act, and the subsequent actions in 2004 by New Zealand to legislate away the rights of the Maori to the area and resources of the New Zealand foreshores and seabed, the Committee prepared General Comment 32 on ‘Special Measures’ under the Convention. The Australian native title laws were obviously one of the motivations for CERD producing this General Comment.
The Committee found reason in preparing this General Comment to explain affirm States duty under the Convention to protect the inherent rights of Indigenous Peoples, and that legislative or administrative actions taken to protect those rights are obligatory, not racially discriminatory. The inherent rights to which CERD refers would include Indigenous Peoples property rights and rights to development. These are ‘concrete measures’, not special measures or acts of racial discrimination.
The Government of Australia has in the past confused legislative and administrative actions to be special measures when they are concrete measures, and have misrepresented racial discrimination, particularly actions taken without the support of the Aboriginal and Torres Strait Islander peoples, as special measures.
The Government of Australia does not yet understand these provisions in the Convention and the bad interpretations coming from the politicians and the courts are a continuing source of concern for the Aboriginal and Torres Strait Islander peoples.
NATIVE TITLE CONCERNS
Apart from the application of discriminatory laws much can be said about the proceedures operating under native title which contain breaches of the human rights of the Aboriginal and Torres Strait Islander peoples.
The foremost concern is the failure to deliver native title outcomes. The statutes, as has already been explained, makes it very difficult for Aboriginal and Torres Strait Islander peoples to get native title determinations.
While there have been some major successes, and these are widely touted in the industry, they are few and far apart. Sadly the good decisions when they occur are prone to be appealed by governments.
The problem lies with the large number of applications for native title determinations that are being held up or denied. At this time, twenty years since the High Court Mabo decision, we are seeing a desire to terminate long-standing applications that remain ‘problematic’ to the legal system.
Proponents of the native title system point out that ‘consent determinations’ under the ‘Indigenous Land Use Agreements’ (ILUA) provisions of the Native Title Act are more productive and more easily achieved. These outcomes are used as encouragement to continue the Native Title system – flawed as it is – rather than pursuing a true Land Rights agenda.
Indigenous Land Use Agreements have led to very positive outcomes in certain cases, particularly where a large mining operation is under consideration by a large multination company, but the majority of these agreements are not only superficial but also leave the communities without capacity to develop or progress into the future.
Many, if not most, of the agreements do not resolve Aboriginal or Torres Strait Islander ownership of their territories but simply become authorisations for mining or other developments to occur in territories under claim.
The mining agreements are getting particular attention because impressive amounts of cash, job training and contracts are intermingled and offered to communities in exchange for clearance of a mining development.
The cash agreements can be impressive to the poor communities but often amount to little more than a ‘buy out’ of the Aboriginal and Torres Strait Islander rights and interests. The cash payments are unlikely, in the main, to lead to true economic development or sustainable operations of the community.
Perhaps cash agreements should be considered under the heading as compensation for the negative impacts of mining upon the communities and their spiritual and cultural relationships with the land, as set out in ILO Convention 169, Article 15.
The cash payouts from mining agreements are not ‘benefits’ or ‘benefit sharing’ as generally accepted when mining is approved by governments. The communities are not receiving the mining royalties or equvalents, royalties as normally required by governments and as regulated in the Northern Territory under the NT Land Rights Act.
We know the benefits from mining, as royalties over the minerals, are going to Australians generally and international shareholders, but not to the local Aboriginal or Torres Strait Islander communities.
The communities are instead mostly offered one-off cash payments and in return the communities are signing away any legal opportunity to claim rights in the future. They are not getting exclusive title to their lands as a result of these agreements.
Communities that have requested native title determinations are finding it frustratingly long and complicated to navigate the procedures. As a result they can feel much pressure to sign agreements even though they consider those agreements to be inadequate and unfair.
When the Native Title Act was originally negotiated in 1993, the government deliberately decided to not establish Land Council structures as part of the infrastructure for determining native title. Land Councils were seen as being political adversaries for government and an encumbrance upon procedures. Indeed Land Councils are a threat to the Framework of Dominance because of their political power.
The Native Title Representative Body (NTRB) structure was an experiment to hand-pick community-controlled organisations as service providers to the communities seeking determinations.
Looking back over the 20 years these NTRB models have failed in the most important function, to protect the rights of the Aboriginal and Torres Strait Islander peoples. They have statutory functions and budgetary limitations which ultimately prevent them from operating with the purposes and freedoms of Land Councils.
For half of the country the NTRBs have now been replaced by government-controlled organisations called Native Title Services. These are private corporations established, staffed and funded by the governments but meant to be acting in the interests of the communities.
In the international human rights circles such structures are called GONGOs – Government-controlled Non-Government Organisations – and such organisations are set up to simulate civil society but frustrate the work, organisation and agendas of the non-government organisations. In Australia I think it is fair to say that Native Title Services are established by Government to look like community-controlled organisations but to deliver the statutory functions in the Native Title laws.
It is important to note here that Australian governments, at the national, State and local levels are often, if not always, opponents to native title claims.
The native title bodies originally established as an alternative to Land Councils, are now operating to facilitate the native title system and process, rather than as human rights defenders for the Aboriginal and Torres Strait Islander peoples.
NATIVE TITLE AS A LAND TITLE
Native Title, as a form of ownership over lands, is a weak and variable form of land tenure. In the High Court decision the court was careful to describe the Common Law title as a bundle of uses and practices that have been traditionally continued. This is a far cry from inalienable freehold title.
In effect this means that native title may not be exclusive title over lands but rather a collection of usufructuary rights over lands and resources. Ceremonies might be held, for instance, but such use might not prevent other parties from also accessing and using the land, eg for pastoral purposes.
While this interpretation of native title might be derived through Common Law it is completely inconsistent with the standards for Land Rights. Ultimately native title as a customary entitlement serves the doctrine of the Framework of Dominance, where the land interests of the sovereign State are kept paramount but the interests of the First Peoples are minimal, ad hoc and subservient.
NATIVE TITLE AND LAND RIGHTS
The political campaigns for Land Rights, as seen in the 1970s and 1980s were for the most part successful in establishing the political agenda for land justice for the Aboriginal and Torres Strait Islander peoples.
This is evidenced by the enactment of the Northern Territory Land Rights Act 1976 and the political commitment by the Hawke Labor Government to national Land Rights in 1983. In 1983 also, the New South Wales Government enacted the NSW Aboriginal Land Rights Act. There were other Land Rights laws adopted around this period.
As has been outlined in this speech the key principles and core objectives of Land Rights is affirmed as a human rights standard both at the national and the international level. Our Land Rights are a universal standard and, for the sake of lawyers here, I assert that Land Rights of the Aboriginal and Torres Strait Islander peoples are ‘ergo omnes’, that is against the world.
However when the Native Title laws and procedures are examined against these standards it becomes very clear that a) the standards are not met, and b) the current arrangements for native title are highly discriminatory and c) continuation of the current Native Title laws and procedures are prejudicial to the rights and interests of the Aboriginal and Torres Strait Islander peoples.
The Native Title laws and procedures do not meet any of the five principles previously mentioned. The five principles are:
1. Aboriginal land to be held under inalienable freehold title
2. protection of sacred sites
3. Aboriginal control in relation to mining on Aboriginal land
4. access to mining royalty equivalents
5. compensation for lost land to be negotiated
These five principles are verified by the ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples.
The desire to conclude agreements with mining companies for cash payouts have blinded many of our communities to the Land Rights standards. Their unawareness of the standards and inexperience in dealing with government and the extractive industries, combined with the incapacity of the Native Title Representative Bodies to function outside of the native title system leaves our communities as highly vulnerable targets for exploitation.
It is obvious that the Government has decided that native title is the permanent alternative to Land Rights. The Government has not been given cause to re-evaluate native title against the Land Rights principles and therefore remains oblivious to the deeply embedded injustices still applying to the Aboriginal and Torres Strait Islander peoples.
The native title system is a provocation to our Aboriginal and Torres Strait Islander communities, set up in a way to challenge our communities to seek a determination from the law courts. It holds no promise. The native title system has no end-goal to establish community ownership over their lands. It is a passive system, designed to frustrate and to thwart rights by running aspiring ‘claimants’ through a quasi-legal filtering system.
And it is a system under the control of the dominant society, founded in the interests of the dominant society, and structured to maintain the Framework of Domination.
WHERE TO FROM HERE
It is encouraging to hear from Government Ministers a willingness to review the Native Title system for its effectiveness and outcomes. It is not entirely clear at the time of preparing this speech what are the details of, or how to comment on, the Government’s position.
However our method should be to have a cooperative and flexible approach in place where Government and the representatives of the Aboriginal and Torres Strait Islander peoples are able to meet to identify the areas of concern, and to agree on goals.
If Government acts without the support of the Aboriginal and Torres Strait Islander people then it is perpetuating the Framework of Dominance that has historically been applied in Australia since 1788.
As been set out in this speech, there are many areas of concern to be addressed. This presentation is aimed at Government and at the Aboriginal and Torres Strait Islander peoples.
Government has an obligation to address historical injustices. The loss of lands and territories is one of those injustices, and the denial of self-determination is another. There are many others. But none of these can be properly met without implementing the UN Declaration on the Rights of Indigenous Peoples.
The Government of Australia has a duty and obligations, under the Charter of the United Nations and the human rights treaties that it has signed, to attend to the human rights of the Aboriginal and Torres Strait Islander peoples.
By attending to human rights responsibilities the Government must undertake, and openly demonstrate, to engage with the representatives of the Aboriginal and Torres Strait Islander peoples to share concerns, views and aspirations.
There are many matters to be resolved but one of these must be Land Rights, including repair of the native title laws in Australia. Because of the complexity of the native title laws it will take time and effort to address the details.
However the Government can begin the process by acknowledging the standards which exist at the national and international level for Land Rights. The human rights standards must be made aware to the Aboriginal and Torres Strait Islander peoples and to the extractive industries and developers.
Government must accept and take on its obligations to promote and protect the rights of the Aboriginal and Torres Strait Islander peoples.
Where disputes exist between the Government and the Aboriginal and Torres Strait Islander peoples these must be resolved through a fair, independent, impartial, open and transparent process, giving due recognition to our laws, traditions, customs and tenure systems.
TO BE CONTINUED …