LEADLawEnvironment and

DevelopmentJournal

VOLUME

7/2

ABORIGINAL DETERMINATION: NATIVE TITLE CLAIMSAND BARRIERS TO RECOGNITION

Zia Akhtar

ARTICLE

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This document can be cited asZia Akhtar, ‘Aboriginal Determination: Native Title

Claims and Barriers to Recognition’,7/2 Law, Environment and Development Journal (2011), p. 132,available at http://www.lead-journal.org/content/11132.pdf

Zia Akhtar, Grays Inn, 8 South Square, London, Email: pagraduate@gmail.com

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* The author is a member of Grays Inn. He writes on rights of indigenous peoples and has published in International Journalof Human Rights; Montgomery Law Journal; Trust Law International; Hertfordshire Law Journal; Coventry Law Journal;Criminal Justice Review; International Criminal Law Journal; UK Solicitors Journal and Bloomsbury’s Criminal Lawyer.

ARTICLE

ABORIGINAL DETERMINATION: NATIVE TITLE CLAIMSAND BARRIERS TO RECOGNITION

Zia Akhtar*

TABLE OF CONTENTS

1. Introduction 134

2. Constitutional Position of the Aboriginal Peoples 136

3. Scope of the Native Title Act 138

4. Burden of Proving Native Title 139

5. Ambit of the Racial Discrimination Act 1975 143

6. Non-compliance with International Conventions 144

7. Conclusion 148

1INTRODUCTION

The right to self-determination of the Aboriginalpeoples received a legal breakthrough with theNative Title Act 1993 that allowed for the emergenceof a theory of aboriginal rights. However, itsperimeters have been restricted by amendments andcourt judgments. The main issues in implementingthe native title system are, first, the legislation andthe case-law are divergent and, second, theframework for the grant of native title presents manyanomalies. At the core is the lack of a preamble inthe Constitution and a framework between theAboriginal peoples and the Australian governmentthat provides legal protection where theCommonwealth ordinances conflict with the rightsof the Aboriginal peoples.1

There are currently several disputes over real estateownership between the Australian government andthe Aboriginal peoples, both on the federal level andat state levels. The importance of resolving thesedisputes has been underscored by the declaration ofthe Australian government that there will be areferendum on Aboriginal status in 2012.Consultations have begun and the outstanding issueis the extent of the Aboriginal peoples’ sovereigntythat had been abrogated when their land was deemedterra nullius.2 Their claim to title has assumedinternational importance because of the passage ofthe United Nations Declaration of the Rights of theIndigenous People in 2007 that places a moralimperative on settler governments and tightens theobligations that exist in international conventions,

such as the ILO Convention 169 and theInternational Covenant on Civil and Political Rights,that have the force of law.

The development of the rights of the Aboriginalpeoples in Australia is dependent on case-law andstatutes. The latter have not led to the determinationof title by the courts as was envisaged by thelegislation. The extinguishment of Aboriginal titleupon the perfection of the colonial title wasoverturned in the landmark judgment in Mabo vQueensland (2).3 The judgment rejected the terranullius doctrine for the Aboriginal peoples and TorresIslanders. There was a determination of title for themembers of single island aboriginal communities andthey were deemed to have rights in common.

Judge Brennan ruled that the indigenous populationhad ‘a pre-existing claim in law, which remains in forceexcept where specifically modified or extinguishedby legislative or executive action’.4 He repudiatedthe concept that on the acquisition of sovereignty, absolutebeneficial ownership of all the lands inhabited bynative Australians vested in the Crown. Therefore,the Crown ‘acquired not an absolute but a qualifiedtitle, that would be subject to native title rights wherethose rights had not been validly extinguished’.

This did not change the presumption that Australiawas a ‘settled’ region and fused the notion of anestablished colony with a ‘conquered’ colony. Thejudgment refuted the doctrine of tenure that wasbased on the Crown land owned in fee simple andsubstituted a radical title for an absolute title. Byimplication this land law theory ran parallel to thelaw of native title that was based on customary lawsand traditions that was contingent upon the fact thatif there had been a valid grant of absolute title bythe Crown in a conveyance then the Aboriginal titlewould be extinguished.

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1 Constitutional Centenary Foundation, Fact Sheet 8.1-The Indigenous Peoples of Australia and theConstitution, in ‘Key issue 8 - The ConstitutionalPosition of Indigenous Peoples’ (2001), available at http://cccs.law.unimelb.edu.au/files/Fact8-1.doc.

2 On the concept of terra nullius, see Gareth Griffiths,Native Title Debate: Background and Current Issues(Sydney: New South Wales Parliamentary Library,Briefing Paper No 15/98, October 1998), available athttp://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/da2f5f5ed50f5d38ca256ecf000948cd/$FILE/15-98.pdf.

3 See Mabo and Others v Queensland No 2, High Court ofAustralia, Judgment of 3 June 1992, [1992] 175 CLR 1,available at http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1992/23.html?query=title%28mabo+%20near+%20queensland%29.

4 Lisa Strelein, Compromised Jurisprudence: Native TitleCases Since Mabo 17 (Canberra: Aboriginal Studies Press,2006), available at http://www.aiatsis.gov.au/asp/docs/Contents%20Sample%20Chaps%20Index/strelein/StreleinSamplechapter.pdf.

The ruling led to the enactment of the Native TitleAct 1993 that sets out a framework for the protectionand recognition of native title. In several instances,while the title is shared by members of several islandcommunities, it has been interpreted as an aggregatedclaim by the islanders. It led to sympatheticjudgments which were to the advantage of theAboriginal peoples.

In Western Australia v Ward,5 there was a native titleapplication over areas of land that included twostates. While the first instance decision stated thatnative title can be proven despite European impact,the Federal Court rejected the application. Thematter then went to the High Court of Australia,which concentrated on the nature and principles ofextinguishment on grounds of whether there can bepartial extinguishment and the principles fordetermining extinguishment. The Court decided thatthe Native Title Act 1993 provided for the partialand permanent extinguishment of native title; theserights can co-exist with other interests in land andbased on the Mabo precedent, these rights can beproven not by occupation but by traditional law andcustoms.

Subsequently, the judgment in Wik Peoples vQueensland6 went further by implying that nativerights can co-exist with pastoral leases. The questionwas whether statutory leases can extinguish nativetitle rights and the Federal Court held that farmingleases did not provide exclusive possession toleaseholders, but if there was a conflict of rightsunder the pastoral lease then that would extinguishthe remaining native title rights. Justice Cooperdecided the issue in accordance with the terms agreedby the parties in relation to Wik Peoples applicationunder the Native Title Act 1993. These termsrecognised the native title rights but they did notbecome effective until certain indigenous landagreements were registered.

This ruling caused the Parliament to enact the NativeTitle Amendment Act 1998 that created the NationalNative Title Tribunal with the power to awardabsolute authority over claims for recognition to theState governments. This tribunal was empoweredto override native rights by asserting that they wereCrown lands in matters of ‘national interest’ andthey were exempt from Aboriginal title claims wherethey provided public amenities. Subsequentamendments have not changed the substantivebalance of the Act which is tilted against the proofof title of the Aboriginal peoples.7

The Native Title Amendment Act was animpediment to the assertion of native title over land,as envisaged by the Mabo judgment.8 It placed thesettlers in an advantageous position. The Act createdmechanisms for the “right to negotiate” provisions;validate use; “confirmation” of extinguishmentprovisions; and a framework for upgrading provisions.9

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5 Western Australia v Ward, High Court of Australia,Judgment of 8 August 2002, [2002] 191 ALR 1, availableat http://www.austlii.edu.au/au/cases/cth/HCA/2002/28.html.

6 Wik Peoples v Queensland, Federal Court of Australia,Judgment of 13 October 2004, [2004] FCA 1306, availableat http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/1306.html.

7 The Native Title Amendment Bill 2010 established a newnative title process for the construction of public housingand infrastructure in indigenous communities throughwhich there would be more consultation with native titleparties about the delivery of accommodation. This was toensure that if native title was extinguished by these projectsthen compensation will be offered. The bill received RoyalAssent on 15 December 2010 and was effective on 16December 2010. See http://www.comlaw.gov.au/Details/C2010A00144/Download.

8 In contrast to the 1993 Act, the Ten Point Plan and theresulting Native Title Amendment Bill were drawn upwithout the consent of, or consultation with, Indigenouspeople. The eventual passage of the Native TitleAmendment Act 1998 was facilitated by a deal betweenthe Howard Government without Indigenousinvolvement or consent. See Northern Land Council, ‘1998– The Native Title Amendment Bill’ (2003), available athttp://www.nlc.org.au/html/land_native_amend.html.

9 The 1998 amendments were referred to by the UNCommittee for the Elimination of Racial Discrimination(CERD) and found to be in breach of Australia’sinternational human rights obligations. See Darren Dickand Margaret Donaldson, ‘The compatibility of theamended Native Title Act 1993 (Cth) with the UnitedNations Convention on the Elimination of All Forms ofRacial Discrimination’, in Lisa Strelein ed, Land, Rights,Laws: Issues of Native Title (Canberra: Native Title ResearchUnit-Australian Institute of Aboriginal and Torres StraitIslanders Studies, Issue Paper 29, August 1999), availableat http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip99n29.pdf.

This has caused the ongoing extinguishment ofnative title as a result of the doctrine of a bundle ofrights that has been inherited from English commonlaw that continues to diminish Aboriginal title whena prior right is asserted. This is the main obstacle tothe recognition of title to land that has becomeextinct and the benefits of the Native Title Act havenot been effected. The Act was introduced as anappendage to the Racial Discrimination Act 1975and its failure to redress land entitlement issuesmeans that it has been unsuccessful. A constitutionalprovision is necessary to change the status quo.

This paper reflects on the lack of a preamble in theConstitution granting Aboriginal rights; how theNative Title Act (as amended) has not borne fruit asthe evidential test is very burdensome and there areexcessive procedural hurdles; the courts’ restrictiveinterpretation that disadvantages the Aboriginalclaimants; and several anomalies that militate againstbackdating claims. This has had an adverse impacton Aboriginal claims to restore title and reversedthe process of self-determination, which is a right ininternational law.

This has reversed the progress that was made whenthe doctrine stating that there was no Aboriginalownership before the Europeans arrived was setaside. Prior to the 2012 referendum on theConstitution, this paper argues for a treatyframework to define the relationship that exists inother settler legal regimes in the Australian context.

2CONSTITUTIONAL POSITION OFTHE ABORIGINAL PEOPLES

The omission of the British Crown to effect a viableconstitutional relationship can be discerned by thelack of any mention of the Aborigines other than aformal reference found in the 1901 Constitution.Section 127 provides: ‘in reckoning the numbers ofthe people of the Commonwealth, or of a State, orother part of the Commonwealth, Aboriginal natives

shall not be counted.10 This principle was appliedin section 25 of the Constitution that expoundedwhy ‘people of any race’ might not be enumeratedfor estimating the members of Parliament to beelected from each State. As a result, until 1965, whenAboriginal peoples were finally granted the right tovote in the last State, Queensland, they could beexcluded under this provision in the Constitution.

Section 51 (26) conferred power on theCommonwealth Parliament to pass laws about ‘thepeople of any race, other than the Aboriginal racein any State, for whom it is deemed necessary tomake special laws’. This was because the framers ofthe Constitution did not comprehend that theCommonwealth had to legislate for indigenouspeoples, who were subject solely to State law duringthis period. However, section 127 and the exclusionof the Aboriginal peoples in Section 51 (26) wereremoved from the Australian framework by areferendum to change the Constitution in 1967.

On the 30th anniversary of the 1967 referendum inMay 1997, the outcome was a unanimous decisionof 90.77 per cent in the form of a national vote infavour of the proposal. It was vindicated by passagein all the States. There is at present a groundswell ofopinion among the Aboriginal peoples thatconstitutional recognition is the key to their futurein the Australian Commonwealth.

In August 2010, the new government announced theappointment of an expert panel of Members ofParliament, indigenous Australians andconstitutional scholars to lead a national discussionon a referendum recognising indigenous people inthe country’s legal document. The panel was to

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10 The framers of the Australian Constitution did notinclude the Aboriginal peoples in a census and they werenot allowed any representation in the House ofRepresentatives that had a mechanism for election fromeach State under section 24 of the Constitution Act 1901.The Aboriginal peoples were not enfranchised with aright to vote in Federal elections until the 1960s. See JohnScott, A Political Dreaming: Our Place - IndigenousAspirations for Constitutional Law Reform, August1998, available at http://www.abc.net.au/civics/teach/articles/jscott/scotthome.htm#contents.

submit its report at the end of 2011, with areferendum a distinct possibility in 2012.11 Thenational Aboriginal organisations are of the viewthat there should be constitutional guarantees. In asurvey by the National Congress of Australia’s FirstPeoples, the constitution was deemed to be the toppriority for indigenous people. Out of the 600members of the association, 88.6 per cent wereconvinced that it is very important that theAboriginal peoples and Torres Strait Islandersreceived recognition in the Constitution. 77.9 percent stated that the constitutional protection ofIndigenous rights was important and 58.4 per centhighlighted this protection to be against racialdiscrimination.12

A draft paper issued by the Law Council of Australiaargues for the constitutional recognition ofIndigenous Australians.13 Its most importantproposals are that the Constitution should be alteredto provide enforceable rights for the Aboriginalpeoples; those rights should guarantee equality; race-based distinction should be removed from theConstitution and replaced with words describingAborigines as having a special place in Australianhistory; and, most importantly, subject to indigenouspeoples giving their free, prior and informed consent,a realistic approach should be adopted in relation tothe timetable for amendments being put toreferendum.

However, this draft document has faced criticismbecause the notion of equality underlying itsconstitutional reform approach does not deal withthe dispossession, disempowerment and the isolationof the Aboriginal peoples (and Torres StraitIslanders). The position of Aboriginalrepresentatives is that this concept of equality doesnot address the structural inequality that is basedupon the illegitimacy of the relationship betweenAustralia and the Aborigines whereby the formerhas the right to decide and the Aborigines are boundto comply with the policies.

They argue that there are two different approachesin dealing with injustice facing them as a groupbecause as individuals they can seek equal accessthrough the various anti-discrimination laws.However, it is not possible for them as a communityto overcome discrimination in the absence ofmechanisms such as a treaty addressing theircollective rights. The legal framework does not takeinto account their right to self-determination basedon the concept that they were the originalinhabitants of the land.

If the Commonwealth legislature were to enter intoa treaty relationship with the Aboriginal peoples, itwould be in a better position to exercise its trustrelationship with them as beneficiaries. This wouldprovide a basis for judicial review of decisions suchas the extinguishment of title that could then beinvoked under the principle of trustee qua trustee andmake the claims under the Native Title Act moreapplicant friendly. As the indigenous people havefound in the United States, treaties can prevent theCongress from acting against the interests of theindigenous inhabitants by imposing a moralobligation on the Federal Government to interveneif the states act against them even at the expense oferoding tribal sovereignty.

This concept of a new constitutional arrangementrequires an insight into the reasons as to why theAborigines want a deal in which they can addressthe issues that confront them. It is only through suchmeans that it can be understood why it is a necessaryprerequisite for a fundamental overhaul of thearrangement between the Aboriginals and theCommonwealth of Australia.

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11 The Australian panel met on 7 December 2011 toannounce its findings on the referendum. See You MeUnity, ‘Constitutional Recognition of IndigenousAustralians – A Guide to the Issues’, available at http://www.youmeunity.org.au/be-informed/discussion-paper.

12 This organisation was incorporated in April 2010 as acharitable association and it is based in Sydey. It representsAboriginal peoples from all states and territorires. See‘Results of Online Survey of Congress Membership’, inNational Congress of Australia’s First Peoples, BuildingOur Foundations, National Congress Report, 7-9 June2011, Sydney Olympic Park Homebush New SouthWales, available at http://nationalcongress.com.au/wp-content/uploads/2011/08/ReportPart1.pdf.

13 Law Council of Australia, ‘Constitutional Recognitionof Indigenous Australians’, Discussion Paper, August2011, available at http://www.lawcouncil.asn.au/s h a d o m x / a p p s / f m s / f m s d o w n l o a d . c f m ?f i l e _ u u i d = 2 D 6 4 A D 5 6 - C C F 1 - 9 7 9 E - 7 2 D 9 -9D0714E6855B&siteName=lca.

the application is made and an outcome is reached.14

There are certain criteria that need to be fulfilled.The Aboriginal peoples must satisfy them as nativetitle holders in terms of the preamble, purpose andthe main objects of the legislation.

A recent decision has a bearing on these importantconditions and their likely interpretation. Theconcept of control and possession of the title holderis based on the territorial connection to land thatallows the title holder to present an argument fortitle over the lands. In Akiba on behalf of the TorresStrait Islanders of the Regional Seas Claim Group vState of Queensland (No 2),15 the Federal Courtconsidered the plaintiff’s claim over the waters ofthe Torres Straits against the principal respondents- the State of Queensland, the Australian governmentand a large group of companies collectively describedas The Commercial Fishing Parties. The judgmentstated that the Torres Strait Islanders were distinctivein many respects and their laws and customs satisfiedthe sufficient ‘connection’ requirement of section223(1)(b) of the Native Title Act.

The Court contrasted the land annexation ofAboriginal lands with the acquisition of the islandsof the Strait that did not lead to the Islanders beingdispossessed of their sea domains, or deprived of theirtraditional means of livelihood. Their continuingpresence in the Strait was held to be ‘self-evident’ oftheir oral history, detailed knowledge and

The expectations raised by the Mabo judgment andthe Native Title Act 1993 have not been met. Thecourt decisions that enabled the land titles deeds tobe reclaimed were overridden by the Native TitleAmendment Act, and under the new regime it isvery onerous for the Aboriginal peoples to provetitle. There are excessive procedural hurdles and thecompeting claims of the settlers/Aborigines do notallow for a predictable determination.

3SCOPE OF THE NATIVE TITLE ACT

There needs to be an examination of the Native TitleRegister and the building blocks of native title rightsin the form of claiming entitlements and for thepurpose of being justly compensated for anyextinguishment of native title. The Native Title Actplaced several limits. For instance in the case ofconflict, the native title was construed as the lessertitle, subordinate to all other claims. The NationalNative Title Tribunal created by the Native TitleAmendment Act 1998 facilitated the existence of theAboriginal title where the land was vacant(unallocated) Crown lands and in case of some stateforests, national parks and public reserves.

The Aboriginal claim is based on appropriation bystate or territory legislation and extends over parksand reserves, oceans, seas, reefs, lakes and inlandwaters. This challenges the non-exclusive pastoraland agricultural leases, which were devolved by thestate or territory when the estates were established.Various criticisms have been levelled at theTribunal’s procedure. These are based on the factthat the Aboriginal peoples have to prove theirancestry. Further the procedural requirements forobtaining recognition of native title were weighedagainst the Aboriginal peoples proving theirentitlement to title.

The requirements set out in the Native Title Registerare contingent upon proving a connection to land,customary laws and residence. The system in placeis slow and leads to a lapse between the time when

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14 The National Native Title Tribunal has reported findingsthat reveal a downward spiral in the native title system.The Annual Report 2005-2006 shows that there was apainfully slow rate at which the outstanding applicationsof the Indigenous Australians are being realised. Thereport states that the clients and stakeholders becomefrustrated at delays and the high cost of participation andthese Native title determinations often deliver few directbenefits to Indigenous Australians and mostdeterminations, in isolation, fall short of the claimants’aspirations. See ‘Chapter 1 - Changes to the Native TitleSystem’ 9, in Office of the Aboriginal and Torres StraitIslander Social Justice Commissioner, Native Title Report2007 (Sydney: Human Rights and Equal OpportunityCommission, 2008), available at http://www.hreoc.gov.au/social_justice/nt_report/ntreport07/pdf/ntr2007.pdf [hereafter Native Title Report 2007].

15 Federal Court of Australia, Judgment of 2 July 2010,[2010] FCA 643, available at http://www.austlii.edu.au/au/cases/cth/FCA/2010/643.html.

exploitation of the marine resources of the Strait.This extended the requirement of section of 223(1)(b)of the Native Title Act and provided the groundsfor Aboriginal communities to assume territorialjurisdiction both in land and over sea.

In his judgment, Finn J found that the claimantgroup had established their claim by demonstratingthat under their traditional laws and customs, thenative title rights extended over most of the watersof the Torres Strait. These rights were held to existnot only in the Australian territorial seas but alsowithin Australia’s Exclusive Economic Zone. It wasa grant of a possession in aggregate by members ofthe claim group and it has given the claim to title inland or sea for the Aboriginal claimants and has abearing on maritime law.

The issue of the customary assertion of a group claimas set out in the Akiba claim has been considered ina national survey of traditional Aboriginal ownersof lands conducted by the Human Rights and EqualOpportunity Commission.16 The survey revealed anumber of findings that are important in thediscussion of the native title system. These include:17

• The most important land priority fortraditional owners is custodialresponsibilities and capacity to either liveon, or access, the land.

• A majority of traditional owners do not have agood understanding of the agreements on land.

The three main reasons preventing traditionalowners from understanding land agreements (indescending order) are:

lack of understanding of native title legalterminology and process;

the process lacks indigenous perspective; and

lack of information.

In the Native Title Report 2007, the Aboriginal andTorres Strait Islander Social Justice Commissionerobserves that:

Native title is at the heart of recognition byAustralian law of traditional owners’custodial responsibilities for land and waters.A system that is not delivering fully onrecognition and protection of native title isfailing the Indigenous people by notrecognising the most important land priorityof traditional owners.

The findings from the survey, that traditionalowners do not understand the agreements theyare entering into primarily because they lackthe knowledge of native title legal terminologyand process, reinforce my concerns regardingthe complexity of the Native Title Act and theprocesses established by it.18

The Native Title Act has established a frameworkfor the protection and recognition of native title.Therefore, the Australian legal system recognisesthat rights and interests are possessed undertraditional laws and customs that continue to beacknowledged and observed by the relevantindigenous Australians. By virtue of those laws andcustoms, the relevant native people have aconnection with the land or waters and their nativetitle rights and interests are recognised by thecommon law of Australia.

4BURDEN OF PROVING NATIVETITLE

In assessing the impact of the Native Title Act 1993as amended, the following factors must beconsidered: the preamble; the purpose and the mainobjects of the Act; and the reasons for its

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16 The survey was known as the National Survey on Land,Sea and Economic Development 2006. See Aboriginal andTorres Strait Islander Social Justice Commissioner, NativeTitle Report 2006 (Sydney: Human Rights and EqualOpportunity Commission, April 2006), available athttp://www.hreoc.gov.au/social_justice/nt_report/ntreport06/pdf/ntr_full.pdf.

17 Native Title Report 2007, note 14 above, at 15. 18 Ibid, at 16.

promulgation by the Australian Parliament, that is,to give effect to the Mabo decision. This has to beviewed against the background of the land tenuredoctrine which states that Australian public landsbelong to the Crown and it includes estates whichare reserved or owned for public purposes and thosewhich are vacant.19 It also comprises the lands setaside for Aborigines but under the control of state/territory government’s Aboriginal affairs authorities.The freehold and leasehold lands belonging to thenative people are held by designated Aboriginalcommunities with special conditions attached to thetitles. It does not include land held privately byindividual Aboriginal landowners.

Since the enactment of the Native Title Act, courtshave considered the issue of determining the statusof Aboriginal lands based on enquiring if theclaimant community had substantially maintainedits traditional connection with the grounds inaccordance with traditional laws and customs, andwhether entitlement to exclusive native title rightsand interests had been extinguished. The secondquestion is whether the courts can play a role inresolving intra-communal disputes concerning nativetitle rights and interests.

This was considered in the case of Rubibi Communityv State of Western Australia.20 The case dealt withthe determination of an application for native titlelodged with the National Native Title Tribunal in1998. The applicants claimed exclusive possession,occupation, use and enjoyment of an Aboriginalground for ceremonial and ritual purposes. The initial

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applicants were elders of the Yawuru Law Men, whobrought the claim on behalf of the Rubibi claimantgroup. This was a group claim comprising membersof the Aboriginal communities defined as Yawuru,Djugan and Goolarabooloo and the applicantsadopted the name Rubibi, which is generallyassociated with the Broome Aboriginal community.

The claim area had been used since time immemorialby the members of the Rubibi claimant group andtheir ancestors ‘to conduct sacred rituals andceremonies and as a repository for sacred objects.’The Rubibi applicants also claimed that they areresponsible for the claim area under the traditionallaws and customs of the claimant group. They appliedfor a determination that they held native title inrelation to the claim area as they were the Aboriginalpeoples connected to the original occupiers who heldin common the body of traditional law and customthat prevailed in that area.

They also applied for a determination that the nativetitle confers upon the claim group ‘occupation, use,possession and enjoyment, as against the wholeworld, of the claim area, ‘for ceremonial purposes’’.The Court held that the Rubibi plaintiffs hadestablished that native title exists in relation to theclaim and that this conferred the right of occupation,use, possession and enjoyment upon them as againstthe whole world for their ceremonial purposes. Theirrights were exclusive in the claim area. However, therights and interests associated with native title didnot include any utilities such as minerals, petroleumor gas which were absolutely owned by the Crown.

There was a caveat that there were no rights ofpossession, occupation, use and enjoyment solelywhere there was a previous non-exclusive possessiongranted by the statute attributable to theCommonwealth or the State of Western Australia.Judge Merkal J ruled that

it should be emphasised that the nature of thoseclaims, the issues they raise, the parties and theevidence that I expect will be adduced in supportof or in opposition to them will be different tothe issues raised, the parties to and evidenceadduced in the present claim. Thus, it shouldnot be assumed or expected that any findings orconclusions in the present case can or will be

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19 Public lands comprise around 23 per cent of Australianland, of which the largest single category is vacant landbelonging to the Crown, comprising 12.5 per cent of theland. The Crown land is held in the ‘right of the Crown’of either an individual State or the Commonwealth ofAustralia; there is not a single ‘Crown’ (as a legalgovernmental entity) in Australia. The entire freehold landin the Australian Capital Territory has been reserved andvested in the Crown. This allows the Government to retainan interest over the leasehold estate, preventing its sale ordisposal as freehold land. See Geoscience Australia, ‘LandTenure’ (1993), available at www.ga.gov.au/education/geoscience-basics/land-tenure.html.

20 Federal Court of Australia, Judgment of 7 November2001, [2001] FCA 1153, available at http://www.atns.net.au/agreement.asp?EntityID=2823.

carried over to the claims to “country” whichare yet to be determined.21

The case focussed upon the traditional Aboriginalsociety of the Rubibi whose applicants had claimedthe unextinguished native title that has existed sinceprior to the European settlement of Australia. Thisexposition of title had the potential to show thatthe applicants were members of a society that existedsince time immemorial and continued to exist untilthe present in order to meet the requirements ofsection 23 F of the Native Title Act. This was acondition of the claim to be valid and to substantiatethe right of exclusive possession.

However, the interpretation of the Native Title Acthas been found to be ambiguous in defining the term‘society’ from which affiliations of the native peopleis drawn. In Yorta Yorta Aboriginal Community vVictoria,22 the High Court considered the referencesto traditional laws and customs in section 223 of theNative Title Act that assert that the claimants mustbe members of a society which is united and acknowledgesthe laws and customs. Therefore, the claimants mustshow membership existing at sovereignty to satisfythis provision of the Act. If that society has ceased toexist at some point, then the laws and customs of agroup will not be considered traditional.

It is not necessary that the ‘society’ constitute acommunity in the sense of all its members possessingknowledge of each other and living together.23 If

that element was required, it would constitute anadditional hurdle for native title applicants, whichthey would find arduous to overcome. It would bedifficult to show the existence of a commonnormative system nearly 200 years ago and it wouldbe even harder to prove the extent of mutualknowledge and acknowledgment of those who livedunder that normative system, keeping in view thefact that there was no Aboriginal script at that time.

There are further obstacles for the Aboriginals toprove that the lands belonged to them when the titleshave been extinguished. This is particularly the casewhen there have been several overlapping claimantapplications before the Federal Court fordetermination of native title. This question has beenconsidered on the basis of the creation ofexpectations for the Aboriginal peoples that may bedifficult to meet, such as the appearance of unequaltreatment between different groups of indigenouspeople which arises because each claim depends onits own circumstances. These entitlements are basednot only on the difficulty of applying the laws ofevidence but also on the difference between the dateof sovereignty and the date of European settlementthat may make it more onerous to prove the nativelaws and customs as they existed since timeimmemorial.

There were eight overlapping claimant applicationsfor determination of native title, the first of whichwas initiated in 1994 by the Wajlen people inHarrington-Smith and Others on behalf of theWongatha People v State of Western Australia (No 9),24

the highest ever in one legal proceeding before aFederal Court. The Wongatha claim had sevenapplications related to approximately 160,000 squarekilometres of land that was divided between mineralrich and farming country of Kalgoorlie. The otherseven applications overlapped the area of theWongatha claim to some extent.

The Federal Court had to address the manner inwhich the claim groups were constituted; thecomplexity of Western Desert society and its

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21 Id.22 Rubibi Community v State of Western Australia No 6,

Federal Court of Australia, Judgment of 13 February2006, [2006] FCA 82, available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/F C A / 2 0 0 6 / 2 0 0 7 . h t m l ? s t e m = 0 & s y n o n y m s =0&query=title(rubibi%20community%20).

23 In Bennell v Western Australia, Federal Court of Australia,Judgment of 19 September 2006, [2006] FCA 1243, it wasruled that the test for community was satisfied on the basisof the continuity of customary laws and traditions from1829 until present despite the fact that there was no proofthat individuals in the community in the south-west wereaware of the existence of all the other people in the sameregion. It was held that the ‘society’ required by s 223 (1)of the Native Title Act does not require it to constitute acommunity, in the sense of all its members knowing eachother and living together. See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/federal_ct/2006/1243.html?stem=0 &synonyms=0&query=bennell.

24 Federal Court of Australia, Judgment of 5 February 2007,[2007] FCA 231, available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/31.html.

landholding arrangements; and the number of partiesinvolved in the litigation. Justice Lindgren found thatseven of the eight claims, including the Wongathapeoples’ application, were not authorised as requiredby sections 61(1) and 61(4) of the Native Title Act.He refused to hear the claims when theCommonwealth pleaded procedural irregularity.The dismissal was based on the finding that seven ofthe claims were not properly authorised by thenative title claimants. The Court did not decidewhether the application would be recognised if thenative title claimants were grouped differently andwhile it considered all the claims on their merits,they were not determined.

The Court acknowledged that the resolution of theclaim is inherently a political question. This isbecause the issues would create unrealisticexpectations for the Aboriginal peoples; and adisparity in the treatment of their various groups.The latter would arise because of subjective criteriasuch as migration of different Aboriginalcommunities and the difference between the date ofsovereignty and the date of European settlement thatmay result in the absence of substantial writtenrecords. The date of sovereignty in the disputed areain Western Australia was held to be 1829 inAboriginal records while that of the Europeansettlement was 1869.25

Justice Lindgren’s ruling added another anomaly bystating that the Aboriginal Western Desert CulturalBloc (WDCB) society which was submitted to be inexistence in 1829 and was still present today wouldnot give rise to native title rights and interests inrelation to land and waters. The judge declined toconsider the notion of a single overarching societywith regional branches that could be evidence ofpracticing local laws and customs, seemingly againstthe ratio in Yorta Yorta HCA. The ruling interpretedthe society’s framework as not permitting itsmembers to claim title in the Wongatha area as it

was deemed not to have its own separate customsand laws.26

In a penetrating analysis, Kent McNeil states asfollows:27

In Australia reliance on traditional laws andcustoms and the doctrine of continuity has hada very negative impact on indigenous landrights. Contrary to the all encompassing nativetitle of the Meriam people declared by the HighCourt in Mabo, in subsequent cases indigenousclaimant have had to prove rights in relationto land by reference to specific laws and customsat the time of Crown acquisition of sovereignty.

The content of those rights is therefore definedby their laws and customs. So even if they werein exclusive possession of land at that time, theywould not, for example, have any rights tominerals if they did not have laws and customsin relation to these resources. Post-Mabo, the HighCourt have thus taken a particularlised approachto native title, treating it as a divisible bundle ofrights each arising from specific laws and customs.

The implication is that the legal precedent beforeMabo was based upon the colonial concept that theBritish held the land in fee simple. The legal positionchanged after that decision and aboriginal rights by wayof interests in use and enjoyment of land were recognised.These rights could arise with a severance from theinterests of the settlers who could hold the title inland that was not conveyed to the Aboriginal peoples.

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25 The date of ‘sovereignty’ varies across Australia. InWestern Australia and the Northern Territory this dateis taken to be 1829, for the Eastern Australian states, it istaken to be 1788 and for the Torres Strait it is taken tobe 1879. See ‘Chapter 7 - Selected Native Title Cases 2006-07’ 139, in Native Title Report 2007, note 14 above.

26 A few months after the Wongatha decision, the NativeTitle Act was amended to include Section 84D. Thissection provides that applicants may be required toprovide greater evidence that they have been authorisedto make a claim on behalf of the claim group; and wherean applicant has not satisfied the Section 61 authorisationrequirements, the court may still determine native title(or make any other order it considers appropriate) if itdecides it is appropriate ‘after balancing the need for dueprosecution of the application and the interests of justice’.See ‘Chapter 7 - Selected Native Title Cases 2006-07’ 158-59, in Native Title Report 2007, note 14 above.

27 K. McNeil, ‘Judicial Treatment of Indigenous LandRights in the Common Law World’, in B.J. Richardson,S. Imai and K. McNeil eds, Indigenous Peoples and theLaw: Comparative and Critical Perspective (Oxford: HartPublishing, 2009).

watchdog, and a Human Rights Commissioner isresponsible for investigating any complaints relatingto breaches of the statute.29

However, the enactment of RDA has not absolvedthe Australian government from censure of theUnited Nations Committee on the Elimination ofRacial Discrimination (hereafter the Committee).The Australian government was criticised in March2000, and the Committee raised a concern that inamending the Native Title Act, Australia was notacting in accordance with Articles 2 and 5 of theInternational Convention on the Elimination of AllForms of Racial Discrimination 1966. TheCommittee recommended that there should besubstantive equality and not merely proceduralequality in the Australian government’s dealingswith indigenous peoples.

The Committee cited many other issues of concernregarding Australia’s treatment of the Aboriginalpeoples and their rights. It began by highlighting theabsence of any entrenched guarantee against racialdiscrimination. There was vehement criticism of theHoward Government’s actions from 1996, includingthe discriminatory Native Title Act amendments;the lack of compensation for the Stolen Generations;the rate of incarceration of indigenous people; andthe dramatic disparities between indigenous and non-indigenous peoples’ access to economic, social andcultural rights.30

The Committee’s dissatisfaction increased when theAustralian Government suspended the RDA underthe provisions of the Northern Territory NationalEmergency Response Act 2007 (hereafter NTNERAct), which was a bill designed to address issues thatwere not related to land, such as crime and underage

5AMBIT OF THE RACIAL DISCRI-MINATION ACT 1975

The Australian Government promulgated theNative Title Act in 1993 to acknowledge itsobligation under Racial Discrimination Act 1975(hereafter RDA) and to achieve the objectives of theInternational Covenant on Civil and Political Rights1966. The Native Title Act states in its preamblethat it is a special measure under the RDA for thebenefit of the Aboriginal peoples and Torres StraitIslander.28 It outlaws racial discrimination inAustralia and it overrides inconsistent state andTerritory legislation making such legislationineffective to the extent that it is incompatible withthe Native Title Act.

The various enabling clauses of the RDA cover theAboriginal peoples in the case of illegaldiscrimination in employment opportunities(section 15); granting land, housing oraccommodation (section 12); provision of goods andservices (section 13); access to public places (section11); advertising for job opportunities (section 16);and the ban on joining a trade union (section 14).

Under RDA, racial discrimination is deemed tooccur when a person is treated less fairly than acomparator in similar circumstances because of theirrace, colour, descent or national or ethnic origin.Racial discrimination also occurs when a policy orrule ostensibly appears to treat everyone equally butactually has an unfair effect on more people of aparticular race, colour, descent or national or ethnicorigin than others. RDA is administered by theAustralian Human Rights Commission, thecountry’s human rights and equal opportunities

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28 The Preamble of the Native Title Act states that the‘Commonwealth has acted to ensure recognition ofinternational human rights standards by its ratificationof international human rights instruments’. It then goeson to mention them and inclusive in that list is the RDAand the Mabo case references. See Native Title Act 1993- Preamble, available at http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/preamble.html.

29 The Human Rights and Equal Opportunity Commissionwas established by an Australian Act of Parliament in1986. See Human Rights and Equal OpportunityCommission, Human Rights: Everyone, Everyday (Sydney:HREOC, 2007), available at http://www.hreoc.gov.au/pdf/about/publications/hreoc21/hreoc21_booklet.pdf.

30 On 13 February 2008, the Rudd Government offered aNational Apology to the Stolen Generations of childrenwho had been forced to relocate to residential schools.See ‘Apology to Australia’s Indigenous peoples’, availableat http://australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigenous-peoples.

abuse in the Aboriginal lands of the NorthernTerritory.31

The NTNER Act had an impact on lands held byAboriginal communities in the form of compulsoryacquisition of townships currently held under thetitle provisions of the Native Title Act 1993. Theseprovisions included appropriation of lands with fiveyear leases and the removal of customary law andcultural practice considerations in denying title. Thepermit system was suspended which meant that theordinary trespass provisions on Aboriginal landscould not be applied.32

The NTNER Act intensified the debate over thefuture of federalism in Australia, in particular theproper extent of federal control into areas ofgovernment that are traditionally managed by statesand territories. The criticism was based upon thenature of the issue and the fact that the nationalParliament faced no constitutional barriers tooverruling the Northern Territory government,unlike the governments of Australia’s states. Insettling out this panoply of measures, the NTNERAct could override Aboriginal rights on a whim andthe indigenous communities’ title provisions couldbe compromised.

After intense criticism from the Human Rights andEquality Opportunity Commission and severalAboriginal leaders, the NTNER Act was revokedon 31 December 2010 by means of the Social Securityand Other Legislation Amendment (Welfare Reformand Reinstatement of the Racial Discrimination Act)Bill 2009. This measure repealed all NorthernTerritory Emergency Response (hereafter NTER)

laws that suspended the operation of the RDA.However, dissatisfaction with the practice has beenreinforced recently after 10 years by the finding ofthe Committee that Australia needs to take urgentmeasures to reverse racist or ‘racial’ discriminationand inequality.33

It appears that the Australian government has beenunsuccessful in giving effect to the Native Title Act1993 in the spirit of RDA that was promulgated 18years earlier. The preamble states that the NativeTitle Act complies with international conventionsbut this is not true. The settlers’ have been grantedprecedence over the claims of the Aboriginalpeoples. The NTER laws had also derogatedoverriding powers to the state government thatdisenfranchised the Aboriginal peoples andprevented them from asserting claims and defendingtheir existing land rights.

6NON-COMPLIANCE WITH INTERNA-TIONAL CONVENTIONS

Australia has subscribed to internationalconventions, such as the International Conventionon Elimination of All Forms of Discrimination 1966(hereafter ICERD), the International Covenant onCivil and Political Rights 1966 (hereafter ICCPR)and the International Covenant on Economic, Socialand Cultural Rights 1966 (hereafter ICESCR). Theselegal instruments identify a number of fundamentalrights that can be summed up as the right tooutcomes based on substantive equality that is notsimply restricted to equal opportunities for theAboriginal peoples. In March 2000, the Committeewhich monitors the conduct of signatory countries,expressed concern about the Australian

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31 The intervention was conducted through OperationOutreach by a logistical operation of 600 soldiers anddetachments from the Australian Defence Force. Theinitiative was implemented under the Little Children areSacred report on the pretext of stopping pornographyand alcoholism, but only two of the report’s ninety-sevenrecommendations were effected. See ‘Chapter 3: TheNorthern Territory ‘Emergency Response’ intervention– A human rights analysis’, in Human Rights and EqualOpportunity Commission, Social Justice Report 2007(Sydney: HREOC, Report No. 1/2008, 2008), availableat http://www.hreoc.gov.au/social_justice/sj_report/sjreport07/pdf/sjr_2007.pdf.

32 Ibid.

33 Human Rights Law Resource Centre, ‘RaceDiscrimination: UN Committee Releases Report andRecommendations on Australia’, 28 August 2010,available at http://www.hrlrc.org.au/content/topics/business/race-discrimination-un-committee-releases-report-and-recommendations-on-australia-28-august-2010/#more-5311.

Commonwealth Government’s amendments to theNative Title Act 1993.34

The amendments were deemed to be not inaccordance with Articles 2 (1)(a) of the ICERD:States not to engage in discrimination against aparticular group; Article 2(1)(c): States to repeal alllaws that discriminate against a particular group; andArticle 5: Equality before the law. The Committeeemphasised the need for more than mere proceduralequality in the Australian Government’s dealingswith the Aboriginal peoples.

Even in the post-Howard era, the Australiangovernment has lacked means to achieve the priorinformed consent of the Aboriginal peoples beforetaking decisions that affect them. This would entailgranting them a right to self-determination andrecognising them as a nation and entering into atreaty relationship with them. If the government setsout a definition in a constitutional preamble, itwould also have to recognise the Aboriginal peoplesas a distinct people worthy of national respect.

The need for Aboriginal self-determination has tobe seen in the light of the United NationsDeclaration of Rights of the Indigenous Peoples 2007(hereafter the Declaration) that was endorsed byAustralia on 3 April 2009. Whilst an international‘declaration’ adopted in the United Nations istechnically a non-binding instrument, indigenouspeoples and legal experts have stressed that theDeclaration is grounded in existing human rightstreaties that are legally binding on States that haveratified them. These include but are not limited toICCPR, ICESCR and ICERD.

The Declaration is intended to guide States on howto give effect to their human rights obligations asthey relate to indigenous peoples. This value-addedrole of the Declaration has been recognized by theUnited Nations treaty adoption system, which hasalso set out that regardless of whether a Statesupports the Declaration, the United Nations human

rights monitoring bodies will assess all States parties’records on protecting and promoting the rights ofthe world’s 370 million indigenous peoples.35

The Declaration is a moral victory for the Aboriginalpeoples. It asserts that the Aboriginal peoples havebeen discriminated against and then invites thesigning of bilateral agreements and substantivearrangements to grant the rights that were previouslydenied. Article 3 states that ‘the native peoples havea right to self determination; by virtue of that rightthey freely determine their political status and freelypursue their economic, social and culturaldevelopment’. Articles 10, 26 and 27 of theDeclaration deal with dispossession of land. Article27 is framed as imposing a positive duty on the Stateto return ownership of lands or pay compensationwhere it is not practical.

The concern that the recognition of the Aboriginalpeoples’ right to self-determination will inevitablythreaten the territorial integrity of Australia ismisplaced. The direction of Aboriginal self-determination will be towards autonomousnationhood rather than severance from theCommonwealth of Australia.36 The Declarationlends support to the United Nations’ non-bindingconception of ‘non-self-dismemberment’. Article 46of the Declaration states ‘(t)he Declaration does not

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34 United Nations General Assembly, Report of theCommittee on the Elimination of Racial Discrimination,General Assembly Official Records, Fifty-fifth sessionSupplement No. 18 (A/55/18), 17 October 2000, availableat, http://www.un.org/documents/ga/docs/55/a5518.pdf.

35 The preamble states that ‘indigenous peoples have sufferedfrom historic injustices as a result of, inter alia, theircolonization and dispossession of their lands, territories andresources, thus preventing them from exercising, in particular,their right to development in accordance with their own needsand interests.That treaties, agreements and other constructivearrangements, and the relationship they represent, are the basisfor a strengthened partnership between indigenous peoples andStates’. See United Nations Declaration on the Rights ofIndigenous Peoples, GA Resolution 61/295 (Annex), UNDoc A/RES/61/295 (2007) paras 6-7, available at http://www.un.org/esa/socdev/unpfii/en/drip.html.

36 In its final report, the Council for Aboriginal Reconciliationacknowledged the right to self determination as ‘withinthe life of the nation’. See ‘Appendix 1 – NationalReconciliation Documents’, in Council for AboriginalReconciliation, Reconciliation – Australia’s Challenge, Finalreport of the Council for Aboriginal Reconciliation to thePrime Minister and the Commonwealth Parliament,December 2000, available at http://www.austlii.edu.au/au/orgs/car/finalreport/appendices01.htm.

imply any right to take any action that woulddismember or impair, totally or in part, theterritorial integrity or political unity of sovereignand independent States’.37 It does not impose arestriction but emphasizes ‘any activity or toperform any act contrary to the Charter of theUnited Nations’.

However, there is no condition that there must bedismemberment or impairing of the territorialintegrity of a sovereign and independent State if thepeople choose independence, free association orautonomy in accordance with the United NationsCharter. This definition has come under focusbecause the Obama administration has lent onlyqualified support to the Declaration and questionedit on the basis that its absolute acceptance wouldundermine territorial unity. Rudolph Ryser of theFourth World Eye Centre for World IndigenousStudies comments on the American stand as follows:

The Declaration simply does not “authorize”dismemberment of existing states. That isreasonable, but it is equally reasonable tounderstand that freely choosing a political statuscan and indeed is encouraged if done within theframework of the UN Charter. Freely choosinga political status is the most basic of conceptsbuilt into the principle of self-determination.Without that right, there is no “self-determination.” The US position is to essentiallynullify the right of indigenous peoples to freely

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make decisions about how they will organize asa political community.38

The US State Department has contemplated thatthe Declaration’s principle of “free, prior andinformed consent” set out in Article 19 does notprovide it sufficient leeway and that it would bebound to the decision made by the indigenouspeople as part of their exercise of self determination.Its basic objection is that it cannot seek theconsent of the indigenous people but would beready to accept a “meaningful consultation withtribal leaders, but not necessarily the agreementof those leaders, before the actions addressed inthose consultations are taken”.39

There is a strong presumption against secession orindependence flowing from the right of self-determination in the colonial setting of Australia.Article 27 of the ICCPR refers to self- determinationand has been held not to prejudice the sovereigntyand territorial integrity of a State party.40 TheCommittee on the Elimination of RacialDiscrimination, in a general recommendation on the

37 On 3 April 2009, the Australian Minister for IndigenousAffairs Hon J Macklin while endorsing the Declarationstated that whatever the meaning of free, prior consent,the government will interpret it in accordance withArticle 46. See Indigenous Portal, ‘Australia Governmentendorses UN Declaration on the Rights on IndigenousPeoples’, 3 April 2009, available at http://www.indigenousporta l .com/World/Austra l ia -Government-endorses-UN-Declaration-on-the-Rights-of-Indigenous-Peoples.html.

38 The author argues that the US position invalidates Article19 of the Declaration which is founded on the“requirement of consent” because it advocates a course ofaction that must lead to the promulgation of legal acts. TheUS position is a contradiction from its stand that“Consultation” satisfies this requirement even if consent isnot secured. Ryser’s argument implies that the US governmenthas chosen to possess the ‘capacity and the power’ to decidefor the indigenous people without obtaining their ‘free, priorand informed consent’. See Rudolph Ryser, ‘USGovernment on UNDRIP: Yes, but No’, Fourth WorldEye, Center for World Indigenous Studies, 18 December2010, available at http://cwis.org/publications/FWE/2010/12/18/us-government-on-undrip-yes-but-no/.

39 ‘Announcement of United States Support for the UnitedNations Declaration on the Rights of Indigenous Peoples- Initiatives to Promote the Government-to-GovernmentRelationship & Improve the Lives of Indigenous Peoples’,Press Release, 16 December 2010, available at http://www.state.gov/documents/organization/153223.pdf.

40 ‘In those States in which ethnic, religious or linguisticminorities exist, persons belonging to such minoritiesshall not be denied the right, in community with the othermembers of their group, to enjoy their own culture, toprofess and practise their own religion, or to use theirown language’. See General Comment No. 23: The Rightsof Minorities (Art. 27):. 04/08/1994. CCPR/C/21/Rev.1/Add.5, available at http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument.

right to self-determination under Article 27 of theICCPR, has emphasized that self-determination isnot an absolute right.41 It mentions a caveat whichis an acknowledgment that some manifestations ofthe rights of individuals protected under Article 27,for example, to enjoy a particular culture, mayconsist in a way of life that is closely associated withterritory and use of its resources. This is an inferencethat relates to the status that native communities mayseek to attain to achieve their autonomy.

The United Nations’ Special Rapporteur onMinorities, Asjboern Eide, has supported the basicpremise of Article 27 of the ICCPR’s implication ofthe importance of indigenous peoples’ relationshipto land that must lead to the distinction between‘territorial autonomy’ and ‘cultural autonomy’when discussing the importance of self-determination. In summary he does not challengethe territorial autonomy of nations but adds that itwas preconditioned on the preservation of ‘culturalautonomy’ by maintaining group identity. Thenotion of self- determination ‘requires a considerabledegree of self-management and control over land andother natural resources’ and would logically alsorequire some degree of territorial control.

The Eide report distinguished minorities who couldbe integrated into wider society such as those whowere practitioners of a different creed but who werenot confined to territorial units or reserves. Thissecond category comprised groups deemed capable

of integration and implied to have a different set ofaspirations as follows:

Are they “peoples” in the sense of Article 1 commonto the two International Covenants? If they are, theyshould be entitled freely to determine their politicalstatus and freely to pursue their economic, social andcultural development, and for their own ends freelyto dispose of their natural wealth and resourceswithout prejudice to any obligations arising out ofinternational economic cooperation, based upon theprinciple of mutual benefit, and international law.42

However, the principle of self-determination has beenacknowledged as more than simply an assertion ofcultural rights. The United Nations Human RightsCommittee and the Committee on Economic, Socialand Cultural Rights (hereafter CESCR) has definedself-determination as a right held by indigenouspeoples of Australia that consists of achieving arepresentative aspect that allows them to make theirown decisions. In United Nation Documentsinterpreting the Convention on Civil and PoliticalRights and its impact on Australia, this is noted inCCPR/C/69/AUS issued on 25 March 2000. Article1 para 10, entitled ‘Concluding observations onAustralia’, states there was an obligation that the‘(T)he State party should take the necessary steps in orderto secure for the Indigenous inhabitants a stronger rolein decision making over their traditional lands andnatural resources’. CESCR issued a list of issues thatit considered pertinent in dealing with the right toself-determination of the Aboriginal peoples.43

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41 The CERD statement went on to assert that there was nounqualified right to self determination. It reads:[I]n accordance with the Declaration on FriendlyRelations, none of the Committee’s actions shall beconstrued as authorizing or encouraging any action whichwould dismember or impair, totally or in part, theterritorial integrity or political unity of sovereign andindependent States conducting themselves in compliancewith the principle of equal rights and self-determinationof peoples and possessing a government representing thewhole people belonging to the territory, without distinctionas to race, creed or colour. In the view of the Committee,international law has not recognized a general right ofpeoples unilaterally to declare secession from a State.See Committee on the Elimination of RacialDiscrimination (CERD), General Recommendation No.21: Right to Self-determination, UN Doc. CERD/48/Misc.7/Rev.3 (1996) para 6, available at http://w w w . u n h c h r . c h / t b s / d o c . n s f / 0 /dc598941c9e68a1a8025651e004d31d0?Opendocument.

42 A. Eide and E. Daes, ‘Prevention of DiscriminationAgainst and the Protection of Minorities’, Economic andSocial Council, UN Doc: E/CN.4/Sub.2/2000/10, 2000,para 11, available at http://www.unhchr.ch/Huridocda/H u r i d o c a . n s f / ( S y m b o l ) /E.CN.4.Sub.2.2000.10.En?Opendocument.

43 CESCR raised two main issues. Issue 3 raised the question:‘What are the issues relating to the rights of indigenousAustralians to self-determination, and how have theseissues impeded the full realization of their economic,social and cultural rights?’ Issue 4 posed the question:‘What is the policy of Australia in relation to theapplicability to the Indigenous peoples in Australia ofthe right to self determination of all peoples?’. See WilliamJones, ‘An Australian Perspective on Self-determination’,Working paper submitted to the Commission of HumanRights at the 8th session, 2-13 December 2002, availableat http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/cf03e35f75a32a36c1256c68004df6ce/$FILE/G0215340.

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Therefore, the right to self-determination isundisputed and the only real issue is how it must beinterpreted. The nature of this debate relates to thecontent of self-determination, and whether it canbe restricted to the ‘internal’ situations that arise innation states. This will have to take intoconsideration the demands of the marginalisedcommunities and would have to abide byinternational covenants such as ICCPR andICESCR. The United Nations Declaration of Rightsis also a significant step for the Aboriginal peoplesin charting their own way forward for the realisationof the concept of self-determination.

There has been extensive debate on the letter andspirit of the term self-determination. The priorityfor the indigenous people in furthering the aim ofself–determination is the protection of their culturalrights and to save their communities fromextinction. According to Siegfried Weissner:44

As far as the indigenous peoples’ claim to self-determination is concerned, article 3 ofUNDRIP recognizes it broadly as the rightto “freely determine their political status andfreely pursue their economic, social and culturaldevelopment,” while article 4 guarantees their“right to autonomy or self-government inmatters relating to their internal and localaffairs, as well as ways and means for financingtheir autonomous functions.” Also, in reactionto various States’ articulated fears of the spectreof secession, article 46(1) clarifies that “[n]othingin this Declaration may be interpreted asimplying for any State, people, group or personany right to engage in any activity or to performany act contrary to the Charter of the UnitedNations or construed as authorizing orencouraging any action which woulddismember or impair, totally or in part, theterritorial integrity or political unity ofsovereign and independent States.

The issue must be addressed by noting that theindigenous people are generally integrated within

the settler states. This is the result of the culturalpolicy assimilation programmes such as thosepracticed at the end of the 19th century that led tothe residential school movement. The policy offorced adoption of Western norms may have beenterminated for the indigenous peoples in the UnitedStates, Canada, Australia and New Zealand but ithas left a legacy of dependence. The only option forthe indigenous people is to preserve what is left interms of distinct institutions upon which theirsovereignty is premised.

This concept is anticipated in the fundamental policyof United Nation Declaration of Rights ofIndigenous Peoples. Article 5 states that ‘[i]ndigenouspeoples have the right to maintain and strengthentheir distinct political, legal, economic, social andcultural institutions, while retaining their right toparticipate fully, if they so choose, in the political,economic, social and cultural life of the State.’

7CONCLUSION

The extinguishment of the Aboriginal peoples’ titleto land has been the cause of disaffection, culturalisolation and lack of equality as a community. TheMabo case was a landmark judgment that led to therecognition that the Torres Islanders had a pre-existing system of customs that gave them rights inland. The Australian High Court rejected theconcept of terra nullius that was based on the notionthat the Aboriginal peoples had no prior legal titlebefore the arrival of the Europeans on the mainland.The Court held that title was not extinguished uponconquest and that the customary laws and traditionsof the Aborigines would be protective of native titlewhich could be claimed if certain conditions aresatisfied.

The enactment of the Native Title Act 1993 set outa framework for an aggregated claim if native peoplecan satisfy the connection based on their originalties since time immemorial. This denied beneficialand legal ownership to the lands for the settlers andbrought to the surface the notion of a bundle of

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rights in land. The Native Title Act was a broadframework for recognising statutory leases uponwhich there could be a grant of Aboriginal rightson land, but this was usurped by the Native TitleAmendment Act 1997 that reversed the gains of theprevious legislation.

By dint of the procedural obstacles that have beenplaced since the Native Title Amendment Act, therehas been a reversal in the notion that there wasAboriginal ownership before the arrival of theEuropeans. The Native Title Tribunals haveenhanced the power of State governments to exerciseauthority over Aboriginal claimants. They werediscretionary in effect because land grants could bewithheld in ‘national interest’, such as where theestates provided public amenities. A stringentregistration test was imposed on all claimants withvery strict time limits for submission of all claimsand a system of Indigenous Land Use Agreementwas created for shared use of lands.

The courts have been proactive in continuing todevelop Aboriginal rights in land by rejecting thetheory that the land had to be occupied for theseclaims to be asserted. A long line of cases haveaffirmed that rights exist on the land and in Akiba,the right was extended to the seas overlapping aninternational ocean. While this has established theprinciples for determining title, there have beencriticisms based on the fact that that the Aboriginalpeoples are forced to prove their own ancestry anddischarge an onerous burden of proof.

It has proven more difficult to admit native claimantsunder the Native Title Act because the courts haveto determine what constitutes the traditionalconnection to determine if there is a valid title claim.In cases where there are intra-communal disputes,the courts are presented with a second question:whether there is sufficient linkage, and if the courtscan solve the multi-lateral disputes concerning nativetitle. As many of the contested lands are claimedunder the doctrine of bundle of rights, the courts haveheld that they will be adjudged on a case-by-case basis.

There are anomalies in circumstances where thereare several overlapping claimants and the courts arereluctant to exercise jurisdiction because of

procedural omissions. In the Wongatha case, thecourt refused to enter a determination because therewas no due process in accordance with section 61 ofthe Native Title Act. The court also stated that thetitle claims suffered from two defects: the Aboriginalpeoples and the settlers followed different calendarsfor succession and the titular process was essentiallya political question and not a legal determination.

It is clear that the courts have developed a doctrineof Aboriginal rights which seems to contradict theintention of the statutes. The Native Title Act seemsto have failed in its purpose of determining title toland by reference to the Racial Discrimination Act.The evidence is that the Australian government hasnot abided by the Racial Discrimination Act, whichincluded the incorporation of the ICCPR in itspreamble.

The Aboriginal peoples need to be empowered ifthey are to successfully litigate their land title claims.This means that the United Nations Declaration onRights of Indigenous Peoples and the internationalconventions must be applied in their entirety todetermine whether the Commonwealth governmentis making progress in granting land claims to thesatisfaction of the Aboriginal peoples. These claimsare very broad and include the grant of cultural,social, political and legal rights. The findings of theCommittee on the Elimination of RacialDiscrimination in 2010 have criticised Australia’slack of progress in addressing the claims of theAboriginal peoples and in particular the right to self-determination.

However, along with the governments opposed tothe passage of the Declaration at its inception,Australia has expressed reservations about theinterpretation of the term self-determination. Article27 of the ICCPR defines this concept as autonomyand not dismemberment of the nation state. TheAboriginal peoples are not seeking succession fromAustralia, as the Council for AboriginalReconciliation has shown and the vote in theNorthern Territory Referendum of 1998 hasconfirmed. Their demand is for conferral of the rightof being a ‘part of the life of a nation’ which is arestricted right but based on substantive equality andmutual self-respect.

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This can be achieved if the Constitution recognisesthe Aboriginal peoples as a distinct minority thatdeserve protection and a treaty relationship isenshrined in the constitutional framework. Therecommendations of the Torres IslanderCommission invite the consideration of a treatyframework and this can serve as the legal basis fordevolution of the Aboriginal peoples that satisfiesthe demand for self-determination.

The upshot of legal protection in the Constitutionand a treaty would be to facilitate the ability of theAboriginal claimants to litigate more effectively fortheir title claims. This will provide them with thelocus standi to claim title as a national entity. In orderto be given a legal foundation for their rights, theAboriginal peoples should be defined as a minorityin the Constitution. The 2012 referendum providesthe opportunity to achieve the framework for abilateral relationship that will lead to sovereignty.

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LEAD Journal (Law, Environment and Development Journal) is jointly managed by theSchool of Law, School of Oriental and African Studies (SOAS) - University of London

http://www.soas.ac.uk/lawand the International Environmental Law Research Centre (IELRC)

http://www.ielrc.org