Legalwise Native Title Seminar, 12 June 2015, Perth, Duxton Hotel

Western Australian Attorney-General

Hon. Michael Mischin MLC

SPEECH NOTES

Acknowledgements

  • The Chairperson, The Hon. Ian Viner AO, QC;
  • Ladies and Gentlemen

Introduction:

  • Thank you for the opportunity to speak to you this morning about native title in Western Australia.
  • My speech today will provide an update on a number of key matters that I addressed in my speech to this forum in 2013.
  • I will also touch on the issue of ‘property rights and native title’ raised at the Australian Human Rights Commission-convened Indigenous Leaders Roundtable in Broome earlier this year.

1: Native title tenureresearch

  • Some of you may recall that, in 2013, the issue of historical land and mining tenure was considered to be a key factor governing the speed at which native title claims could be resolved.
  • Since 2013, the WA Government has continued to make extensive effort to clarify its approach to tenure analysis as a component of the native title claims process.
  • Wherever possible,it has streamlined analysis to save time and costs, and the State Solicitor’s Office has offered stakeholder presentations aimed at building a better understanding of the processes undertaken by the State.
  • It isa matter of concern, however, that apparentlythere remains some confusion about the State’s approach.
  • A key point of contention appears to be the view that tenure researchshould take place early on in a native title proceeding.
  • The premise is that early disclosure by governments of tenure information could reduce the geographic extent of a claim, or narrow the focus of evidence, or lead to native title claimants pursuing other remedies for recognition of their traditional interests.
  • In an ideal world,all of these scenariosmight be possible. But there are a number of critical factors that are regularly overlooked when this approach is advocated.
  • First, it is not necessary to undertake a full historical tenure search and analysis for a claim before a claimant group is in a position to consider the best way to progress its interests.
  • In a great many cases, a fairly accurate assessment about extinguishment can be made on the basis of a current tenure analysis alone.
  • In most cases, contemporary tenure will provide an indication or guideas to where native title might or might not be capable of existing. In many cases, there may also be land and mining tenure histories for parts of a claim area which can also be taken into account.
  • The discussion over recent years about tenure analysis has also side-stepped any suggestion that native title claimants should file less speculative native title claims.
  • After 20 years of the Native Title Act, we ought to be beyond the stage of ambit claims based on generic definitions about where native title rights might exist.
  • Instead of simply demanding the State spend more time and money to narrow a claim, I would prefer to see some sign that applicants are making reasonable efforts to refine their claims.
  • Certainly, if a claim has been in the court system for a decade or more, there has been ample time for claimants and representative bodies to review their claim statements and refine the claim where necessary.
  • Regrettably, the convention is that the original claim is not to be amended,and the State isdeemed responsible for any further work to clarify the areas where native title has or has not been extinguished.
  • Within WA, there are a number of claims where even a cursory examination of the current tenure informationindicates that much of the claim area consists of extinguishing freehold.
  • A full historical tenure analysis for those areas will be extremely time consuming, resource intensive and expensive.
  • Presently, the State has dedicated teams working at full capacityto keep up with current workloads for claims with an identifiable schedule for a determination.
  • These claims are the State’s priority and any diversion of the State’s resources away from these high priority caseswill simply add delays to other matters. In simple terms,we would be delaying claims with some chance of a resolution, to shift resources to other claims.
  • With regard to the National Native Title Tribunal’s (NNTT) Historic Tenure Capture Project, the State has consulted the NNTT and has concluded that existing processes in WA are efficient, and make the best use of available human and material resources which align with the Court’s current priorities.

Part 2: Non-native title outcomes

  • On 12 February 2015 Justice Barker’s keynote address ‘Alternative Pathways to Outcomes in Native Title Anthropology’cited the South West Settlement negotiations as a good illustration of what might be achieved from non-native title negotiations.
  • “There are many parts of Australia,” he said, “where this type of negotiation model would seem to make a lot of sense. I would be hopeful, if the Single Noongar Claim has a successful outcome, that this model would be seen as capable of application in other parts of Western Australia.”
  • The WA Government and Justice Barker are in full agreement about the scope for alternative settlements, although I would emphasise that the precise terms of any single agreement will vary significantly from one location to another.
  • In the interests of clarity, I should note that what is usually labelled a “non-native title agreement” is more accurately described as an alternative to a native title outcome, or a modification of a native title rights agreement.
  • In WA, we have proposals that either:
  • result in the surrender of native title rights in exchange for some other form of recognition and benefits,like the proposed South West Settlement;or
  • recognisenative title rights and agree to modify the operation of the ‘future act’ provisions, for example, under an Indigenous Land Use Agreement.The 2014 Esperance Nyungar native title determination and ILUA is the best working example at this stage.
  • The negotiation of both the South West Settlement and the agreement with Esperance Nyungar native title holders reflects a long-term approachby the WA Government to build on Aboriginal land interests, looking well beyond a bare determination of native title.
  • Our experience is that there has been little evidence of genuine interest among native title lawyers in either non-native title outcomes or in other state-sponsored schemes that might require some variation of future actprocedural rights.
  • In the five years of negotiations between Noongar claimants and the WA Government, there were no expressions of interest from any other land council in Western Australia about how a regional agreement might be developed elsewhere, or how we might apply what we had learnt in the South West in any other location.
  • The small number of land council enquirieswere along the line of “we want what the Noongars might get”, but with no interest in discussing the underlying terms of that agreement, that is, the surrender of any native title rights.
  • Over the same five year period, the WA Governmentexperienced opposition fromWA land councils about the adoption of a Government ILUA designed to provide native title holders with significant development opportunities and financial assistance for long-term land management.
  • Basically, our experience to date is that there is little support among most native title lawyers and advisors for the notion that native title rights alone might have small long-term benefit,and that a modified land use regime might be more advantageous to their clients.
  • During that period a number of WA claims have been settled by consent withclaimants turning their backs on generous offers from the State in exchange for modified land access agreements.
  • The South West Settlement shows that WAGovernment agencies,local governments and the corporate sector are all open to innovation and to linking Indigenous land use with Indigenous economic and social benefits.
  • The State continues to be receptive to such alternatives. There is no reason other regional or sub-regional agreements could not be developed.
  • Possibly the greatest impediment to alternative agreements is the prevalence of a native title legal orthodoxy in which native title rights are all that matter, based on an inflated and unrealistic view of what native title rights can deliver.
  • The fault for this largely lies in inflexibility and a failure of imagination among lawyers, to entertain other options for resolving claims.
  • It also rests with the narrow approach to native title policy adopted by successive CommonwealthGovernments.
  • For 20 years,successive Commonwealth Governments have been willing to underwrite the prosecution of the Native Title Act, solely for rights-based outcomes. This has contributed to an over-emphasis on legalism and fuelled the fallacy that native title rights are the precondition for solving Indigenous disadvantage and all that are required for Indigenous advancement.
  • In simple terms, the CommonwealthGovernment has only shown an interest in funding the achievement of native title determinations, not the consequences following on from a determination or how to put native title rights to good long-term effect.
  • Successive Commonwealth governments have also washed their hands of any real financial support for more constructive land management outcomes.
  • By way of example, after five years of resistance, the Commonwealth Government recently offered $10,850,000 towards the South West Settlement. This is less than 1% of the State’s offer.
  • The Commonwealth offer was also contingent on the Noongar claimants indemnifying the Commonwealth against any native title compensation claim.
  • Because the Commonwealth had not participated in the native title negotiations, their offer would require the Noongars to recommence negotiations with the Commonwealth over six additional Indigenous Land Use Agreements. The cost of doing so would well exceed the value of their offer.
  • The offer only amounted to three years operational funding for SWALSC, with the Commonwealth able to pocket the costs of maintaining a representative body after three years. In effect, the Commonwealth would become a net beneficiary of the resolution of native title claims in the South West after three years.
  • As I noted in 2013, it is a given that most of WA will ultimately be covered by native title rights. As a result the State’s focus has progressively shifted onto how those native title rightscan be effectively used in the long-term, in partnership with other land users and land holders.
  • Within WA, there is more appetite and experience than anywhere else in Australia about the scope for ambitiousand pragmatic native title settlements.
  • Despite this, real progress in building Indigenous economic capacity is being held back by a narrow legalistic approach to native title and the very limited scope of federal native title policy.
  • During 2013-14, state and territory governments met regularly with the aim of expanding the policy discourse around native title. In 2014, they presented the Commonwealth with a series of proposals, including proposals aimed at aligning Commonwealth and State and Territory support for prescribed bodies corporate.
  • Those proposals included:
  • Co-operation and partnership between the Commonwealth and state or territory governments to co-ordinate, and maximise incentives for, PBCs and alternative settlements;
  • A review of federal native title funding to redirect resources to PBCs and build independent, sustainable native title holder corporations;
  • Creation of an online ‘Hub’ for PBCs by the Commonwealth to lodge compliance and financial returns and apply for simplified programme support and funding – this could be further enhanced by incorporating a philanthropic component that allows corporate Australia to provide opportunities, partnerships and support directly to PBCs; and
  • A suite of minoramendments to the Native Title Act, centred on finding efficiencies in the native title system without compromising the rights of native title holders.
  • To date, after two years of intensive input from the states and territories, the Commonwealth has not made a commitment to any of the key proposals put forward by other governments.

Part 3: Property Rights and Native Title

  • I want to finish on the issue of ‘barriers to property rights after native title’,which was the subject of discussion at the Indigenous Leaders Roundtable in Broome convened by the Australian Human Rights Commission in May.
  • The broad proposition advanced by the participants involved in the Roundtable was that the lack of Indigenous economic advancement, despite the recognition of native title, is a result of:
  • State and territory legal and regulatory barriers which currently fetter native title holders exercising property rights; and
  • that native title rights give rise (or should give rise) to land title rights.
  • This proposition is flawed and misleadingbecause it seeks to portray native title as something that it never was.
  • Following Mabo (No 2),and after some uncertainty about the nature of native title, the High Court in Ward made clear that native title is not property in land in the sense known to the common law.
  • The High Court moved away from the recognition of rights held under traditional laws and customs as comprising an estate in land of the type familiar to the common law, instead confirming that native title comprises a set of rights in relation to land or waters – that is, native title as recognised by the common law is fundamentally a right to use land and waters for traditional purposes; it is not a right of possession to the land itself, or to things in, on, or under it.
  • Hence there is no doubt that, at least in the case of exclusive possession native title, the nature and extent of the rights may be akin to freehold in some respects, but they are not the same.
  • One of the important differences is that unlike other interests in land recognised by the common law, native title is not capable of being alienated except by surrender to the Crown.
  • This is, in part, because "alienable property for the laws and customs of an indigenous people do not generally contemplate the alienation of the people's traditional land" (Mabo (No 2) at p. 51, per BrennanJ), and also because native title is, ordinarily, a communal titlewhich is "for the benefit of the community as a whole" (Mabo (No 2) at p. 62, perBrennan J).
  • In this way – excepting where native title is surrendered to the Crown – native title will survive for the benefit of future generations of native title holders.
  • It is for these reasons that native title is not an asset which is amenable to being transacted like other forms of title or property.
  • For better or worse, that is the nature of traditional rights in land which both the common law, and Parliament, of this country has recognised.
  • Hence, the way forward for Indigenous economic opportunity does not lie in a quixotic legal and policy adventure to try and re-make property law.
  • The solution lies in a mix of Indigenous economic enterprise andthe exploitation of the existingproperty rights systemto make better use of native title rights.
  • Ideally, an unbiased andpragmatic dialogue on property rights and wealth creation in the interests of Indigenous people is also able to accommodate an objective analysis of the need for practical amendments to the Native Title Actwhich can expedite and encourage economic activity and development proposed by either native title holders or other proponents.

Summary

  • In closing, I would like to thank you for the opportunity to elaborate on some of the themes which I initially raised at this forum two years ago.
  • The key message from the WA Government in 2015 is that it is critical that all parties to the native title process, including the CommonwealthGovernment,start to investin a more pragmatic, flexible and innovative environment for Indigenous development.
  • Collectively we need to commence a new phase which relies far less on the ‘future act’ system as leverage for revenue raisingand esoteric legal debate,and focus on genuinesustainable engagement and commitments between key public and private stakeholders.
  • I trust I have provided the basis for further reflection on the operation of the native title systemas we gradually and inevitably move from a claim-dominated native title environment, into a post-determination landscape.
  • Thank you.

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