Common(wealth) Knowledge #70: Native title and Indigenous land rights
Long and expensive delays in native title determinations have led states to develop alternative schemes.
In a recent opinion piece for The Australian, Peta Credlin criticised the Indigenous Voice to Parliament for enabling Aboriginal and Torres Strait Islander Australians to assert more land claims in Australia, and potentially give them more power. However, it's worth further examining Credlin's claims about the nature of native title, Indigenous Land Use Agreements, and other forms of land recognition.
Crucial to this discussion is the Native Title Act 1993 (Cth) was passed to provide statutory protection to native title, which had only been recognised under court-made common law the year prior, in Mabo v Queensland (No 2) (1992).
The need for this was discussed in Western Australia v Commonwealth (1995), where the High Court combined the NTA with the Racial Discrimination Act 1975 (Cth) to overturn Western Australian legislation that sought to extinguish native title and replace it with a statutory regime that offered fewer benefits and protections than native title did.
(Check out Common(weath) Knowledge #69 for more on this issue).
As part of the NTA, the Commonwealth government acknowledged that the courts merely recognising the native title rights of a particular community, based on their traditional laws and customs, wasn’t enough.
This led to the creation of Indigenous Land Use Agreements. ILUAs would be used to negotiate the implementation of recognised native title rights, involving a Registered Native Title Body Corporate, often referred to as an ‘Aboriginal Corporation,’ which was discussed in this article.
Because the majority of native title is considered to be ‘non-exclusive,’ it must exist side-by-side with other property rights. The ILUA was intended to facilitate the negotiation process to determine how the rights would be implemented and would involve the relevant government, the Aboriginal Corporation that represented the community in question, and any other landowners owning affected land.
Credlin recognises this, but suggests that the Voice, or alternatively the Makarrata Commission that was suggested in the Uluru Statement from the Heart as promoting a treaty and ‘truth-telling,’ would override this. These assumptions are based on her predictions about the Voice, as no model for how it may operate has been introduced.
Through ILUAs, Aboriginal Corporations can help ensure that the native title rights granted to the community that they represent can be maintained.
However, ILUAs are not the same as other statutory forms of land agreements, which Credlin appears to suggest are the same.
The particular agreement that she refers to is one made under the Traditional Owner Settlement Act 2010 (Vic), between the Victorian government and the Barengi Land Council Aboriginal Corporation, which is an Aboriginal Corporation.
For a Victorian Aboriginal community to benefit from this Act, they are required to surrender any existing or future native title claims. In this case, the communities represented by the Barengi Land Council, so-called because it represents a number of communities, rather than just one, were granted native title in Clarke v Victoria .
These Aboriginal communities are lucky. They only lodged their claims in 1998 and 1999. It is common for communities to wait for over a decade for their claims to be processed. For example, the Barkandji community, who filed their claim in 1997, had to wait 18 years for a determination to be made.
In fact, the long wait time is one of the reasons that many communities take part in these statutory schemes, before leaving the processing queue.
By surrendering any native title claim, the NTA no longer applies to that community.
To prevent the operation of the RDA to invalidate its legislation for granting inferior benefits and protection than those granted under native title, which is discrimination, as was the case in Western Australia v Commonwealth (1995), the Victorian legislation must offer the same, or more, level of benefits and protection.
A key issue that Credlin has with this Act is that it says that money should be paid to the Aboriginal Corporation for 4 years, which she says will be used to maintain and develop and maintain any land that they own.
It should be noted that this ‘ownership’ is similar to exclusive native title, which is usually only granted when there are no other private claims to the land and the government hasn’t treated it in such a way as to extinguish any rights.
Putting aside the controversial debate over whether compensation should be granted, which is a political question, the payment of money isn’t unique to Victoria.
In Mabo (No 2), Chief Justice Mason and Justices Brennan and McHugh, joined by the lone dissented, Justice Dawson, said that no compensation could be granted for the extinguishment of native title.
This was changed by the NTA, which allows for compensation to be granted.
However, courts and governments are often reluctant to grant compensation. Northern Territory v Griffiths (2019) was the first time that the High Court granted included compensation for cultural and spiritual loss and harm caused by the government’s extinguishment native title in its compensation calculations, although they reduced the total from $3.3 million, which was ordered by the Federal Court, to $2.5 million.
This reluctance is not unlike the Federal Court of Australia’s Full Court ruling that a lower expected lifespan for Aboriginal and Torres Strait Islander people does not entitle them to an earlier pension againse, as seen in Common(wealth) Knowledge #60.
Perhaps the best example of these issues is the ongoing lawsuit between Fortescue Metals Group and the Yindjibarndi community.
The Yindjibarndi people won non-exclusive title to an area in 2003, but in 2017 won exclusive native title over neighbouring land that included most of FMG’s Solomon Hub Iron Ore Mine. This went from the Federal Court to the Full Court, where 5 judges, including Justice Jagot, now on the High Court, upheld the ruling. The High Court, which saw the issue as being settled, did not even grant FMG special leave to appeal its case to the High Court.
Unlike the use of native title mentioned earlier, namely where there are no other claims to the land, this was done, at least in part, to protect the land from further destruction.
There is now an ongoing battle between the Yindjibarndi, FMG, and the Western Australian government over the $500 million claimed in compensation for economic loss and spiritual harm, as the mining operations destroyed 250 sacred sites.
The actions of this mining corporation, owned by Andrew Forrest, one of Australia’s richest men, goes against Credlin’s claim that the Voice would allow the ‘elites’ to take away the negotiating power of individual Aboriginal communities.
The FMG native title dispute is ongoing, and likely won’t be resolved until after the Voice referendum.
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Fortescue Metals Group v Warrie on Behalf of the Yindjibarndi People (2019) 273 FCR 350;  FCAFC 177.
Mabo v Queensland (No 2) (1992) 175 CLR 1;  HCA 23.
Western Australia v Commonwealth (1995) 183 CLR 373;  HCA 47.