Aboriginal organisations meeting in Darwin have expressed
their deep concern at the way the Prime Minister, without
consultation, abandoned some of these key principles in his
recent meeting with State Premiers. Some State Premiers did
not accept even a watered down version, and have challenged
the High Court's decision.
As far as I know, these have not been translated into any of
the languages of Australia's First People and senior law
people.
A Framework of Principles
Preamble
In the Mabo decision of 3 June 1992, the High Court rejected
the doctrine that Australia was terra nullius ("land belonging
to no one") at the time of European settlement and held that
the common law of Australia recognises a form of native land
title. This exists:
. where indigenous people have maintained their
connection with the land; and
. where their title has not been extinguished by acts of
Imperial, Colonial, State, Territory or Commonwealth
Governments...
Identification of Native Title
1. It is desirable to establish a better means than the courts
for determining who has native title and where. the system
should be accessible, informal, non-adversarial and
expeditious. A tribunal system has attractions. this doe snot
rule out referral of important questions of law to the courts,
or that it may be desirable to facilitate court case where
this is likely to clarify important principles.
2. The Commonwealth offers to cooperate with the States and
Territories in establishing such tribunals. Due to the
national importance of Mabo and the constitutional powers of
the Commonwealth in relation to Aboriginal and Torres Strait
Islander people, they should be within parameters acceptable
to the Commonwealth to ensure a consistent national approach.
3. There is a need for Aboriginal and Torres Strait Islander
organisations to be given the statutory function of organising
and presenting native title claims (either existing bodies,
for example Land Councils, or new bodies where no suitable
organisation exists). This is not to rule out that claims may
be made by individual claimants.
4. Governments should provide adequate resources for the
tribunal process, to organisations representing claimants and
other authorised parties. The distribution of resources should
be administered in accordance with a formula based on
principles of equity and urgency.
5. Priorities should be
- establishment of a system for registration and
notification of claims
- where straight forward, recognising native title
quickly
- determining claims to areas which it is proposed be
used for some purposes (e.g. major development projects).
Recognition of Native Title
6. Commonwealth, State and Territory land management and other
laws should be urgently reviewed, and where necessary updated
to take account of native title, within a specified time
frame.
The Principle of Non-Discrimination
7. The integrity of the Racial Discrimination Act is to be
maintained.
8. Native title should be treated no less favourably than
other comparable titles, notable in respect of
- procedural fairness;
- compensation when a grant of interest is made over the
land.
9. Reference to "comparable" titles does not mean equating
native title with other existing titles. Rather, the elements
of native title may include important rights which other
titles also have, and which those managing land need to
recognise in ensuring non-discriminatory treatment, at least,
of the native title interest.
Protection of Native Title
10. Native title should be preserved to the maximum extent
possible. The common law should be amended to provide that
grants should not of themselves extinguish native title.
Native title rights should be subject to or restricted by the
grant for the period of the grant. Where possible native title
and the grant should be made to co-exist. Where possible
native title should revive at the expiry of a finite grant
- recognising that these are general principles which may
more readily be applied to some cases (e.g. future mining
leases) than to other cases (e.g. pastoral, tourism leases).
11. In the exception, in the future, if all or part of a
native title needs to be extinguished, this should only be
done by negotiation or compulsory acquisition, i.e. at a
minimum, in an equivalent way and in the same circumstances as
another title holder's rights could be extinguished.
Right of Consent.
12. A native title holder should not have a right of veto over
grants of interest in land existing as at 30 June 1993, and
the rights conferred by those grants should not be required to
be re-negotiated.
13. Applying the principle of non-discrimination, a future
grant of interest over native title land or acquisition by
government of native title should be subject to the consent of
the title holder where a right of consent is enjoyed by other
comparable title holders.
14. Further, in recognition of the special attachment of
Aboriginal and Torres Strait Islander people to their land -
including especially the protection of sacred sites - there
could be additional rights of consent for native title holders
in relation to actions affecting their land.
Negotiation
15. Policy and procedure should recognise that negotiation can
sometimes be a quick, flexible and less adversarial means of
managing possible conflict between native title rights and a
proposed use of the land. Governments should actively
facilitate negotiation where this is feasible and promising.
Any settlement should reflect an agreement between all parties
with a valid interest and be the result of negotiation
conducted in accordance with the principles of equity and
fairness.
16. On the principle of non-discrimination, negotiations
should take place with native title holders before a grant of
interest is made over native title land where negotiations
would be required prior to such a grant being made over land
held under a comparable title.
17. Moreover, in recognition of the special attachment of
Aboriginal and Torres Strait Islander people to their land,
legislation could provide for enhanced requirements for
negotiation with native title holders, including a framework
(for example, timetable, arbitration if necessary) for such
negotiation.
Native Title and Statutory Title
18. Codification of Mabo or compulsory conversion of common
law native title to statutory title(s) are not acceptable
options.
19. However, voluntary conversion is acceptable i.e. if this
is desired by the native title holder. It is recognised that
it can be an ingredient in negotiation of claims.
20. Statutory land rights should be complementary to, rather
than a substitute for, recognition of common law native title.
Transition to the New Regime
21. Those holding grants of interest in land should have
certainty that they will not be invalidated and their rights
should be protected. The Government is willing to legislate to
facilitate the validation of post-1975 grants by the States
and Territories subject to appropriate compensation being
paid.
22. However, the situation should not be allowed to persist
whereby grants of interest which may impact on native title
and be inconsistent with the RDA continue to be made with
assurance of retrospective validation.
23. Accordingly, urgent efforts should be made to establish
standard setting national legislation putting in place a new
framework for recognition, protection and management of native
title land (embodying the principles above), including how
future grants are to be validly made. This should be part of
the same legislative package which simultaneously establishes
the basis on which validation of existing grants (21 above),
back from that date, could be made. The subsequent review of
specific land management laws (6 above) should be in
accordance with the national standards.
24. A cut-off date of 30 June 1993 is to be set whereby
. in respect of grants before that date, the Commonwealth
would both facilitate validation and contribute to the
compensation required
. in respect of grants after that date, the Commonwealth
would not in the normal course facilitate, support
validation or provide compensation.
25. Moreover, as a matter of land management practice form now
on, where governments are contemplating a grant and where the
land involved could credibly be subject to native title, the
Aboriginal and Torres Strait Islander people involved should
be treated at least comparably with other title holders. It
follows that
. where a government contemplates dealing with land,
which may be native title land, in a way which would
extinguish native title, procedures for compulsory
acquisition need to be followed i.e. notification,
attempted negotiation with claimants, compulsory
acquisition upon failure of negotiation.
. where the dealing contemplated would not extinguish
native title then
- if a comparable land holder has a consent right,
so would the native title holder (so that in
practice the grant cannot be made until the
existence or otherwise of native title has been
established)
- if the title holder does not have a consent right
then the grant could proceed with compensation to be
paid later if and when the existence of native title
is established.
Compensation
26. Legislation should establish parameters for compensation
when a grant is made over native title land, rather than
leaving this for resolution by the courts. This could set out
broad principles or a specific scheme for calculation of
compensation.
27. The holders of existing grants should not be required to
pay retrospective or prospective compensation as part of the
validation process. This burden should be borne by the
Commonwealth and the States/Territories.
Justice and Economic Development
28. The response of governments to mabo should go beyond
immediate land management issues. In particular, a response is
needed which addresses
- past dispossession, as a consequence of which many
Aboriginal and Torres Strait Islander people cannot now
benefit from Mabo
- the desirability of reducing conflict between
Aboriginal and Torres Strait Islander land holders and
resource development.
29. The scale and scope of any package will be conditioned by
budget realities, but should be in keeping with the
Government's forthright position on Aboriginal and Torres
Strait Islander affairs.
30. New measures should be related to the mabo decision (land
and economic development) rather than constitute another round
of "social justice" initiatives.
. on this latter, and wider, front governments
particularly need to act on their responses to the
recommendations of the Royal Commissions into Aboriginal
Deaths in Custody.
31. The package of measures could include such options as:
- a National Fund primarily for land acquisition;
- a greater stake for Aboriginal and Torres Strait
Islander people in resource development on native title
land, perhaps through a revenue equivalents scheme;
- transfer of Aboriginal reserves and appropriate areas
of unalienated Crown land to Aboriginal and Torres Strait
Islander interests;
individually or possibly in combination.
Heritage Protection
32. It is desirable to make further progress towards effective
Aboriginal and Torres Strait Islander heritage legislation
across Australia.
Reconciliation
33. The Mabo decision is an opportunity. The commitment to
reconciliation should be reaffirmed. The reconciliation
process is especially important in the light of Mabo. There
would be serious consequences for reconciliation if there was
an inadequate response to Mabo. A program of public
understanding of the decision is important as is discussion,
in the reconciliation process, of the broader aspirations seen
by Aboriginal and Torres Strait Islander people as arising
from it.