IN TOWNSVILLE last week for the twentieth anniversary of the High Court’s Mabo decision, attorney-general Nicola Roxon outlined four proposed amendments to the Native Title Act designed to “speed up” the determination process, encourage agreement-making and help Indigenous people “unlock” the economic benefits of their native title.
Reactions were mixed. The Coalition took a notably adversarial position, with Senator George Brandis reportedly arguing that the consequences of the changes would be “complete confusion” and a fall in rural property values. Brian Wyatt, who heads an alliance of Indigenous representative bodies, the National Native Title Council, said the changes fell well short of what was needed. The mining industry peak body, the Minerals Council of Australia, backed the government; the National Farmers’ Federation echoed Brandis’s warning about uncertainty.
The reforms are certainly modest, though they could make a material difference to some agreements and negotiations. In the run-up to her Townsville speech, the attorney-general was under some pressure to go further and, for example, reverse the onus of proof. In simple terms, this would mean that when a court has to assess whether there is a continuous connection between a group of people, their traditional laws and their country, the ultimate burden would be on the respondent parties to disprove the existence of a connection not, as at present, on the Indigenous group to prove its existence. Roxon resisted such calls.
To interpret her choice and understand the amendment package it helps to put the current debate in a twenty-year perspective. While Mabo was a landmark decision – one of the most important judgements delivered by the High Court in its first hundred years – two other factors feed into a present understanding of the state of play in native title. One is the restrictive way in which the law and practice of native title has developed since Mabo. The second is the consequent depth of disappointment within Aboriginal and Torres Strait Islander communities over the course things have taken since 1992.
There were high hopes for political and economic empowerment in the wake of Mabo, particularly if Australia’s political and business leaders had opted for a consensual, negotiation-first approach to redefining relationships with Australia’s first peoples. From the outset, however, negotiation took a back seat to legislation and litigation.
The original legislation in 1993 set up a distinction between the past and the future. In terms of the past, there was legal doubt about the validity of some non-Indigenous titles granted after 1975, when the Racial Discrimination Act, or RDA, came into force. Any doubt over existing titles was removed with upfront statutory validation, achieved by the partial wind-back of the RDA. Indigenous negotiators wrung some concessions from the Keating government elsewhere in the Native Title Act, mainly on the rules for future development on native title land (the “future act regime”). This did not extend to decision-making authority, which Aboriginal people have had under land rights legislation in the Northern Territory since the late 1970s.
At its highest, Indigenous influence over developments on native title land was to come from a statutory “right to negotiate” procedure for mining projects. This created a six-month window for negotiations before the miner could ask the new National Native Title Tribunal, or its state equivalent, to arbitrate the request for a native title “clearance.” For Indigenous negotiators, this leverage was strictly limited: if push came to shove, the expectation was that mining would trump native title; and, indeed, it was fifteen years before the tribunal knocked back a mining grant in an arbitral determination.
The Act was substantially amended in 1998 because, according to prime minister John Howard, the pendulum had swung too far in favour of Aboriginal people. After two of the longest Senate debates in Australian parliamentary history, he succeeded with most of his proposed amendments at the third attempt. The amended Act went much further in specifying situations in which native title was extinguished. It also tilted the system more in favour of proponents of development and state governments.
It was, however, the process of litigation and High Court adjudication that did most to restrict the positive potential of native title for Indigenous groups. For a decade and a half after Mabo, claimant groups generally found themselves in one of two situations. They might be stymied and becalmed by pre-trial dealings with a state or territory government that had little incentive to “settle.” Or they might be thrust into intensely adversarial litigation, with each element of their case resisted tooth and nail by that government, and possibly by the Commonwealth and an array of other respondents as well. Mabo’s ambiguity on some key issues could have been interpreted either way. Until about 1999 Indigenous parties fared reasonably well in contested cases; after that, an increasingly conservative High Court took native title in a restrictive direction, particularly in two test cases, known as Ward and Yorta Yorta, decided in 2002.
The court ignored or disregarded many factors, including the language of the preamble to the Native Title Act (what the current chief justice calls its “moral foundation”), the common law presumptions that offer protection to property rights whatever their colour, the less tight-fisted development of Aboriginal title by the Canadian Supreme Court and the relevance of the non-discrimination principle to the formulation of native title law.
In legal terms, the result was an often weak and vulnerable property right, a stern and literal requirement for continuity between the Indigenous society in place at the time of British colonisation and the one in existence today, and a set of extinguishment rules harsher than they needed to be in order to give non-Indigenous property rights priority over native title in situations of conflict.
Between hardball parliamentary politics, frustrating and inconclusive pre-trial dealings with government respondents, litigiousness, restrictive judicial interpretations and a forbidding level of legal technicality (the Act runs to almost 600 pages) it is not easy for most Aboriginal and Torres Strait Islander groups to maintain a positive demeanour about the course native title has taken.
Of course, some groups have made substantial progress. There are now more than 140 positive native title determinations. In Western Australia (the only jurisdiction without its own statutory land rights regime) the level of Indigenous rights over land is gradually shifting, particularly in the Kimberley and desert regions. In areas of mineral potential like the Pilbara, Rio Tinto and the local traditional owners are raising the bar with impressive, region-wide mining agreements structured to produce what will hopefully be enduring, intergenerational social and economic change. In the last five years, more strategic and more intensive case management, particularly by the Federal Court, has started to unlock a process that had become badly clogged up. A few native title determinations and an alternative recognition process for traditional owners have even emerged in densely settled Victoria.
BUT there are hundreds of unresolved claims in the system and many groups have had claims rejected or face poor prospects in the courts under the current state of the law. It is against this background that the discussion of amending the Native Title Act takes place.
There is no great clamour for change from non-Indigenous participants in the native title system. Miners, for example, engage with multiple internal and external approval processes before a mining project commences, and the twelve-month “right to negotiate” has mostly been absorbed into the ordinary course of doing business in Australia. For most of the past twenty years, states and territories have been able to run native title matters in a pre-trial setting at a pace of their own choosing.
The present-day pressure for amendment comes from the Indigenous side and it arises from years of frustration and disappointment. There is a strong desire for native title laws that deliver justice, recognition and meaningful rights to groups that have maintained their Indigenous identity and a tenacious connection with their traditional country.
Short of a wholesale recasting of the legal response to Mabo, however, there are questions about how much can be achieved by amending the Native Title Act. The most fundamental legal questions – the strength of the property right, the requirements for proving connection and the rules for extinguishment – were essentially answered by the High Court in 2002 and any significant revision will generate controversy about the effect on existing determinations and future cases. Likewise, significantly recalibrating the balance of power within the future act regime would unleash powerful industry opponents. After the scarring experiences of Labor in 1993 and the Coalition in 1996–98, there has been little appetite for ambitious native title law reform in Canberra. With its tenuous hold on parliamentary numbers, the Gillard government has few incentives to stir up the kind of vehement and economically powerful opposition triggered previously by the Mabo and Wik decisions.
Though it might sound radical, reversing the onus of proof is, by comparison, a “modest” proposal. That was the adjective used by one of the reform’s early proponents, Robert French, now chief justice of the High Court. He knew that when parties abandon mediation for litigation respondents often spend days or weeks in court challenging the Indigenous case on continuing traditional connection. In those circumstances a shift in the onus of proof may have only a limited effect on outcomes and on “speeding up the determination process.”
Reversing the onus of proof has a lot of appeal to Indigenous groups who resent the “prove who you are” expectation built into native title law. Perhaps this change may encourage a different dynamic, nudging respondents to consider more seriously a non-litigious approach. But to date states have shown a willingness to engage in prolonged courtroom battles over “connection” issues, knowing that regardless of who bears a burden of proof the underlying law sets the bar very high for native title claimants.
Attorney-general Roxon did not take up this reform idea in her Townsville speech. But some of her proposals are also about “process” or “procedure” more than substantive law and will ultimately depend for their success not on the legal change itself but on the posture that respondent parties choose to adopt.
This applies, for example, to Roxon’s proposal that parties will be able to negotiate Indigenous Land Use Agreements with greater flexibility and on a “wider range of topics.” Native title negotiations can lead to agreed outcomes beyond strictly defined native title. The Act should support that and not put artificial legal barriers in the way. Roxon’s speech was short on details but the proposal sounds similar to positive amendments made by the Rudd government in 2009 dealing with other kinds of agreements under the Act. But these enhanced statutory provisions will only have work to do if the parties involved are willing to engage in agreement-making.
Similarly, the attorney-general said that parties will be able “to agree to put aside issues of historical extinguishment in parks and reserves.” The arbitrary character of Australia’s extinguishment laws was on full display when the High Court found in Ward that the creation of a park or nature reserve totally extinguishes native title, regardless of people’s continuing traditional connection to the land. The decision prompted Justice French in 2008 to suggest an amendment allowing the strict legal position to be disregarded by consent. He adapted a mechanism found in sections 47, 47A and 47B of the Act for disregarding extinguishment in other appropriate circumstances. Those three provisions are a positive feature of the Act; adapting the mechanism in this way should allow for outcomes in parks and reserves better suited to contemporary needs and circumstances. But again, this can only happen where the political will to reach such agreements exists. Roxon’s predecessor, Robert McClelland, conducted national consultations on such an amendment in 2010.
In relation to mining projects, resource companies presently can only jump from the right to negotiate to compulsory arbitration of their request for a mining tenement if six months have elapsed and if they have negotiated “in good faith.” These provisions, crafted almost twenty years ago, are not sufficiently sensitive to current practices, including the initial creation of an agreed negotiation protocol and the conduct of region-wide negotiations rather than inefficient tenement-by-tenement discussions. Past experience suggests that in such circumstances the timelines can be manipulated and Aboriginal parties can be blindsided by the sudden resort to arbitration in the middle of negotiations. The attorney-general proposes “to legislate criteria to outline the requirements for a good faith negotiation,” preventing parties from simply sitting out the clock. Here, too, the Townsville speech was short on detail, but a government consultation paper in 2010 indicates that greater specificity in the Act could help deter sharp practices. The Minerals Council’s positive response to Roxon’s speech acknowledged that not all players in the industry currently negotiate in good faith.
The fourth and final proposal from Roxon has also been thoroughly canvassed in earlier consultations. It proposes to confirm that neither income tax nor capital gains tax will apply to “native title agreements,” which typically involve some form of compensation or benefit-sharing from development on native title land. Although the devil will be in the definitional detail, this is welcome relief for Indigenous groups negotiating agreements with a view to securing long-term, intergenerational benefits. It alleviates reliance on the rigid and artificially restrictive law of charities and prevents the nonsense of newly negotiated compensation to Australia’s most disadvantaged communities immediately leaking back to government coffers. It is presumably this reform that Roxon had in mind when she talked of helping people to unlock the economic benefits of their property rights.
THE attorney-general’s proposals change the law but, apart from the tax measure, they do so mainly by adjusting the process for achieving native title outcomes. In this respect they accord with changes announced in this year’s federal budget, which complete the transfer of native title case management to the Federal Court (previously shared with the National Native Title Tribunal).
Since 1993, sections 47–47B aside, federal governments have shown little interest in improving the Indigenous share of rights, power and influence in the Native Title Act, even as the High Court and the legalistic posture of state and territory respondents progressively diminished the potential for Indigenous empowerment through native title. It is not easy now to alter the fundamentals of the law of native title, to mitigate its harshness and bring it closer to the sentiment of justice that animated Eddie Mabo and the High Court majority in 1992. But strict legalities need not drive outcomes. Process changes that ease the path of respondent parties who are willing to show creativity and a positive approach represent significant reforms even if they are also modest.
Just as importantly, every day around Australia governments make choices about the fine detail of how to handle individual native title matters. Every one of those matters potentially offers an opportunity to fulfil the rhetoric of government policy in Indigenous affairs – supporting Indigenous governance structures and unlocking the potential for economic empowerment – through positive responses which relegate legal and often arbitrary technicalities to their proper place. Right now, the Commonwealth itself is slugging it out with Torres Strait Islanders in the appeal courts instead of accepting the trial judge’s finding in their regional claim in 2010 that they have a non-exclusive right to take marine resources from their sea country including for commercial purposes. The failure in the present day to seize that outcome as an opportunity not a threat shows that twenty years on from Mabo, it is not just the legislation that needs remedial attention. •
Sean Brennan is a Senior Lecturer at the UNSW Faculty of Law and Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law.