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Address to the Native Title Representative Bodies Legal Conference Native Title in the new millennium.

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April 2000

Native Title & Reconciliation Address to the Native Title Representative Bodies Legal Conference Native Title in the New Millennium 9:00am, Monday, 17 April 2000 The Chifley Hotel, Melbourne

        Introduction First I would like to acknowledge and thank the people of the Mirimbiak nations who are our hosts, and in particular I would like to thank the Wurundjeri people for their hospitality.


The twin issues of native title and reconciliation became a key item on the broader public agenda with the High Court's decision in Mabo v Queensland (No. 2) 1. The case provided a catalyst for the development of a new awareness in the broader Australian community of the injustices that the previous legal doctrine of terra nullius had inflicted on Australia's indigenous people- by denying their prior occupation of Australian land and in doing so denying their special connection with the land.


It's been 18 months since I assumed portfolio responsibility for Commonwealth native title policy. At that time, the 1998 amendments to the Native Title Act had recently passed through Parliament and the immediate focus was on implementation of the amendments. Today, however, it is useful and instructive to examine the progress that has been made since the amendments were introduced and to assess how the amended Act is working in practice.


I would like to consider this progress in the broader context of the reconciliation process.



The recognition and treatment of native title is an integral part of the reconciliation process. Recognising and respecting the rights, history and culture of indigenous Australians is, of course, central to achieving lasting reconciliation. In particular, recognising the unique relationship the original inhabitants of Australia have with the land, and properly valuing and celebrating indigenous culture as the oldest living culture on earth, is also important.


While recognition and respect is important, providing indigenous people with the practical means to overcome the real economic and social disadvantage they continue to suffer is also central to achieving recognition. And perhaps most importantly, reconciliation requires a spirit of cooperation between indigenous and non-indigenous Australians.


The Federal Government is committed to achieving effective and lasting reconciliation between indigenous Australians and other members of the Australian community. Following the passage of a Motion of Reconciliation in August last year, the Prime Minister renewed the Government's commitment to achieving reconciliation in his Federation Address on 28 January this year.


We all acknowledge the past treatment of indigenous people is the greatest blemish on Australia's history. While it is impossible to undo the wrongs of the past, the Government is intent on addressing the present social and economic disadvantage of Aboriginal and Torres Strait Islander peoples. We want to foster a broad understanding of these complex issues within the wider Australian community and garner their support to achieve that objective.


The Prime Minister's acknowledgment that reconciliation would not be achieved by the centenary of federation is a recognition that reconciliation is a long and complex process. It should not be taken as an indication that the Government is resiling in any way from the reconciliation process.


As the Prime Minister has said, we must recognise that those things that bind us together are stronger and more important that those things that might push us apart. Reconciliation will not work if it puts a higher value on symbolic gestures than the practical needs of Aboriginal and Torres Strait Islander people in areas like health, housing, education and employment.


The Government believes it is important to take the time to build strong foundations for effective and lasting reconciliation and not to rush the process simply in order to meet an arbitrary deadline.


The Government believes in practical measures leading to practical results that improve the lives of indigenous Australians. 12.

Last week the Prime Minister met with all eighteen commissioners of the Aboriginal and Torres Strait Islander Commission to continue discussions about appropriate measures to achieve effective and lasting reconciliation.

Reconciliation and native title


As with many issues associated with the reconciliation process, native title presents unique problems and challenges for governments, industry, indigenous groups and the broader community. The native title rights and interests that the High Court recognised in Mabo are unique to our law. Their content remains to be further defined by the courts.


I have no doubt that Labor had good intentions when they passed the Native Title Act 1993 and was aiming to recognise and protect native title rights and interests, while allowing economic activity and development to proceed. By all accounts Labor was attempting to integrate these unique new rights into our existing land law and land management systems. In order to do that effectively, the Act had to strike a balance between competing rights and interests.


But the Act was fundamentally flawed. It simply did not work. Not only was it drafted on the assumption that all pastoral leases extinguish native title, an assumption that was later overturned by the High Court. But the processes it established caused delays and confusion and imposed unnecessary strains on community relations.


It was left to the Coalition Government to provide real solutions to the difficult problems which arose during the early years of the operation of the Act.

Fair and effective operation of the Act


The Government has always been - and remains - committed to the proper recognition of native title in a workable and equitable manner. This is important for all Australians. We must reconcile our history with our current circumstances and do so in a way that provides security and harmony for future generations of Australians. All the evidence that is available suggests that the changes the Government made to the Act in 1998 are working effectively to overcome the problems of the 1993 Act.


Last year, the National Native Title Tribunal outlined the progress that has been 19.

made in streamlining native title processes since the 1998 amendments to the Act. The Tribunal's report makes it clear that the new processes give industry and indigenous groups a mechanism to avoid the need to go to court and to enable them to resolve issues in the spirit of cooperation.

Recent evidence2 also shows that 95% of the native title applications made since the amendments came into operation that have been tested, have passed the new registration test. It is also pleasing to note that of the 10 determinations made to date, five have been by agreement between the relevant parties. This challenges initial fears that the framework for determination of native title rights and interests would lead to an excessively adversarial approach. I think it also holds promise for the cooperative resolution of differences between indigenous and non-indigenous people in the interests of current and future generations of Australians.


Resolution of disputes through cooperation and negotiation is the rationale underpinning of the use of Indigenous Land Use Agreements (ILUAs). One of the Government's main objectives in proposing the 1998 amendments was to increase the use of ILUAs.


ILUAs between indigenous people and other people with rights and interests in land and waters are one of the most practical ways of dealing with native title matters. ILUAs can deal with matters such as co-existence, the exercise of native title rights, extinguishment of native title, future developments and compensation. ILUAs can also resolve issues about future acts, including the payment of native title compensation. Many such agreements can be made without the need to involve a court determination of native title. At the end of February, six such agreements had been registered nationally, another six are awaiting registration and many others are under negotiation.


I am confident that the use of ILUAs will increase in the future as the various parties develop greater trust in each other and there is more certainty about the nature of native title and its application in particular areas. I am optimistic that the development of trust and cooperation through such agreements will also have flow on benefits for relations between indigenous and non-indigenous Australians - particularly in the local communities where ILUAs are operating.

Alternative State and Territory regimes


The Native Title Act also provides for State and Territory governments to integrate native title procedures into their own land management systems by establishing alternative regimes. Provisions of this nature were included in the original Act and they are not, as has


been suggested, a recent initiative to enable the States and Territories to circumvent the provisions of the Racial Discrimination Act 1975 . Section 7 of the amended Native Title Act makes it clear that the Racial Discrimination Act applies to any such alternative State and Territory regimes.

The Native Title Act contains stringent conditions that State and Territory regimes must meet. Any determination that I make as the responsible Minister, to the effect that a proposed regime complies with those conditions, is subject to consideration and potential disallowance by either House of the Australian Parliament. If a State or Territory amends an alternative regime so that it no longer meets the criteria in the Native Title Act, I am required to revoke the relevant determination. Those of you who have watched the democratic processes of the Commonwealth Parliament at work will know that this sets a high benchmark for any determination to be successful.


It is pleasing that some State and Territory governments have voluntarily proposed regimes that offer native title claimants and holders more than the minimum required under the Native Title Act. At the same time it is disappointing that the Senate has chosen to disallow determinations in respect of the Northern Territory regime, when, in some respects, the Northern Territory regime exceeded the minimum requirements. The Senate did so on the basis that the Northern Territory provisions allowed the Northern Territory to amend its regime, so long as the regime continued to meet the minimum requirements of the Native Title Act.


The Senate has suggested that it should have an ongoing supervisory role in relation to State and Territory alternative regimes that have passed through the parliamentary process. In effect, this would mean that any amendment made to a State or Territory alternative regime, no matter how trivial, would be subject to scrutiny by the Senate. Provided that the minimum standards agreed by the Australian Parliament and incorporated in the Native Title Act are and continue to be met, it seems unreasonable for the Senate to demand an ongoing supervisory role in the day to day land management practices of the States and Territories.


In February this year I made two determinations under section 26C of the Native Title Act in relation to two areas in the Lightning Ridge region of New South Wales that are set aside for opal and gem mining. I am pleased to announce that these determinations have passed though Parliament last week without being disallowed. These are the first determinations that have successfully passed through the parliamentary process since the 1998 amendments.


In addition I have received proposals from New South Wales, Queensland and Western Australia seeking determinations under various provisions of the Act. I am in the process of considering the results of my request for submissions in relation to the Queensland alternative regime. The period for submissions has just concluded in relation to two other proposed determinations under 26A of the Native Title Act for New South Wales. I am also currently considering whether the request from Western Australia contains sufficient material for me to seek submissions from the representative bodies, as required by the Act.


The Commonwealth firmly believes that native title issues need to be considered as part of the mainstream management of land in Australia. The primary responsibility for land management has always rested with the States and Territories.

Unique nature of native title


The unique nature of native title rights and interests means that it is impossible to engage in any simple assessment of the Act. It is not possible to simply state that any one provision of the Act provides native title holders with exactly the same rights as other property holders. Nor is it possible to simply state that the Act prefers non-indigenous interests over indigenous interests. The amended Act must be considered as a whole.


When considered as a whole, it is clear that the amended Act continues to recognise the unique nature of native title rights and interests. The Act also goes beyond the requirements of formal equality in providing for native title rights and interests.


For example, the limits that the Act places upon the common law with respect to the extinguishment of native title, go beyond the rights accorded to other Australian property holders. Provisions of special procedural rights that ensure not only native title holders but also native title claimants are consulted about mining and certain other activities also go beyond rights accorded to other Australian property holders. But it must be recognised that these rights are important and appropriate. It must also be recognised that they are special and unique to native title.

Extinguishment of native title under the Act


The validation and confirmation provisions in the Act have been criticised on the basis that they have resulted in the extinguishment of native title rights and interests. The Government rejects that assertion.


The validation provisions are of very limited coverage. They apply only to the validation of grants made over pastoral lease land at a time 35.

when it was believed by both Federal and State Governments that pastoral leases extinguished native title. The Government believes that the validation provisions will result in little, if any, permanent extinguishment of native title. Most of the acts affected will be subject to the non-extinguishment principle.

The confirmation provisions are merely intended to confirm the extinguishment of native title under the common law. The Government is confident that these provisions do little, if anything, more. The legal basis upon which the confirmation provisions were drafted was recently confirmed in the decision of the Full Federal Court in Miriuwung Gajerrong. 3


You may wonder why it was necessary to include the confirmation provisions in the Act if their only object was to replicate the position at common law. The reason was simply to forestall unnecessary and significant expenditures on court proceedings to test the common law for no tangible benefit. Many people would consider that the legal profession has done well enough out of the Act as it is. The provisions are an important, practical measure to make native title work.


Apart from Justice Lee's now superseded comments in Miriuwung Gajerrong, I am not aware of any judicial comment, claim for compensation or other evidence that might suggest that the validation or confirmation provisions have resulted in any permanent extinguishment of native title.

The future of native title


I firmly believe that the future developments in native title will prove conclusively that the Native Title Act is not prejudicial either to the interests of indigenous Australians or to the interests of other Australians. I am confident that both the Act and the High Court decision that preceded it will come to be viewed as a major step along the road to reconciliation. While I am aware that, as with most complex legal and social issues - views of the 'right' or the 'best' approach will differ, I am confident that the Act strikes an appropriate and enduring balance.


It is time to put conflict behind us and work together to ensure that the Native Title Act not only protects the rights of indigenous Australians but also allows Australia to grow and develop economically for the benefit of all Australians. I believe that the Act provides us with a framework for this. I also believe that making native title work, through cooperation, agreement and mutual trust and respect is an important part of achieving reconciliation. The Commonwealth Government remains committed to achieving lasting and effective reconciliation.




1 175 CLR 1.

2 As 10 March 2000.

3 State of Western Australia v Ben Ward and Ors [2000] FCA 191.


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