Earlier this year, the Australian Law Reform Commission (ALRC) commenced a Review of the Native Title Act 1993 (Cth). Among the worthy issues to be examined is whether native title should include interests of a commercial nature. The ALRC framed several questions on this theme:
- Should the NTA be amended to state that native title rights and interests can include rights and interests of a commercial nature?
- What, if any, difficulties in establishing native title rights and interests of a commercial nature are raised by the requirement that native title rights and interests are sourced in traditional law and custom?
- If the NTA were to define “native title rights and interests of a commercial nature”, what should the definition contain?
- What models or other approaches from comparative jurisdictions or international law may be useful in clarifying whether native title rights and interests can include rights and interests of a commercial nature?
“The construct of native title under Australian law perpetuates a racialised exclusion of
Indigenous peoples from the benefits generally attached to property.”
I suggest that native title should include interests of a commercial nature so as to redress the economic injustice currently experienced by native title holders. To construct native title in such a way that Indigenous peoples do not reap the benefits of non-Indigenous land use is to keep many Indigenous peoples living in impoverished conditions whilst others profit from their land. This is based upon an outdated conception of property formulated by John Locke, which maintains that property rights are connected with the labour of individuals. This theoretical framework has disadvantaged Indigenous peoples during colonisation.
The construct of native title under Australian law perpetuates a racialised exclusion of Indigenous peoples from the benefits generally attached to property. The major rights typically associated with freehold property were set out in the first case on native title, Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141 and include “the right to use or enjoy, the right to exclude others, and the right to alienate”. In Milirrpum it was held that these rights were not present in Indigenous peoples’ relationship to land and that they therefore could not have title to property under the Australian legal system.
Now, under native title law, Indigenous peoples can enjoy some characteristics of the legal concept of property. Yet, increasingly their rights are limited to a “right to use and enjoy” rather than a “right to exclude others”, as seen in increasing awards of non-exclusive possession in native title. Non-exclusive possession means that native title holders have a proprietary interest in the land, but they have to share the land with non-Indigenous interests. As Jon Altman explains, non-exclusive possession “often provides a weak form of property right that needs to be shared with other interests, most commonly commercial … pastoralism.”
In providing weak proprietary rights for native title holders, non-exclusive possession awards appear to be inconsistent with the robust rights set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP): for example, those set out in Article 2 enshrining a principle of non-discrimination. It is discriminatory for the Australian Government to construct Indigenous property interests as those which must always be shared with non-Indigenous interests. It is also discriminatory for the Australian Government to construct Indigenous property interests as those which can be extinguished with ease whilst other non-Indigenous interests, such as those of mining magnates, are given more robust protection.
The rights acknowledged regarding native title for Indigenous peoples have been modest indeed, and, as Noel Pearson stated after Mabo v Queensland (No 2) (1992) native title “will give rights to only a very small percentage of the Indigenous population of this country.” The rights attached to native title were also defined diminutively by the High Court in Western Australia v Ward (2002) as a “bundle of rights”. This shows the capacity for judicial interpretation to leave such rights precariously situated, open to systematic elimination by the government if at some point any of the said rights are seen as inconvenient. As Justice McHugh stated in Ward, the “deck is stacked against the native title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict”. This is certainly the case where there has been a grant by the government of either a fee simple estate or a leasehold interest that resembles a fee simple estate. A fee simple estate is the most robust land right recognised under Australian property law.
The High Court has recently recognised that native title can include commercial rights in fisheries in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013). These rights are non-exclusive, and it is uncertain at this point whether such commercial rights are confined to the Torres Strait. Yet as Mick Gooda states, “[c]ommercial fishing rights are essential to the Indigenous people of Australia, not only because they are traditional rights but because they are integral to the economic development of Indigenous communities”.
“Indigenous peoples should be able to determine their own futures
as an integral aspect of their right to self-determination under Article 3 of the UNDRIP.”
It is therefore crucial as a matter of social justice that Australia develop native title in accordance with the principles set out in the UNDRIP. The following Articles of the UNDRIP may be relevant to Indigenous peoples’ commercial interests on land held under native title:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
One model where these aspects of the UNDRIP may be implemented is in the context of Aboriginal people doing necessary conservation work on their traditional lands, as explained in People on Country – Vital Landscapes – Indigenous Futures. Altman suggests that “a different notion of development based on conservation” is needed in order to accommodate actual work undertaken by some Aboriginal people in remote Australia. This appears to be related to both Articles 3 and 29(1) of the UNDRIP. It involves a different option for Aboriginal people living in remote areas to the current government policies of mainstreaming/assimilating Indigenous peoples. It also involves a different valuation of land-based activity to that which is often seen in the modernist paradigm. All too often what the state sees as “[p]rogress in the abstract” within a neoliberal framework amounts to “domination in the concrete” for Indigenous peoples. The neoliberal project of mainstreaming Indigenous peoples has therefore met with considerable resistance. Indigenous peoples should be able to determine their own futures as an integral aspect of their right to self-determination under Article 3 of the UNDRIP. This has specific implications for land rights and native title. As Helena Whall explains:
Fundamental to the issue of self-determination is the right of Indigenous peoples to be consulted about all matters directly affecting them on the basis of their right to give or withhold their informed consent. Indigenous peoples are often marginalised by developments on their own lands and regularly suffer severe environmental, social and economic disruption from developments, which benefit others. Without effective control over proposed developments, native title and land rights remain meaningless.
Australian governments have performed poorly in this area, yet, “free prior and informed consent” is a hallmark of Article 19 of the UNDRIP, which provides the following:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
The NTA is far from embodying such a right. Indeed by virtue of Subdivision P of the NTA there is merely a “right to negotiate” for Aboriginal peoples affected by a development proposal. The “right to negotiate” is a paltry right when compared with Article 19 of the UNDRIP which clearly requires the consent of the Indigenous people upon whose land development is proposed. By contrast, section 36A of the NTA allows for a ministerial override of the negotiation process and an override of the wishes of Indigenous people if there is no agreement within a specified time. As McRae and others explain:
Once the time limit expired (typically six months from the original development notice), the process could shift to a compulsory arbitration, in the National Native Title Tribunal or an accredited State or Territory body. After a year, the government could impose its will if it wished, through a ministerial over-ride.
Australia needs to do better than this if it is serious about developing policy in accordance with the UNDRIP. Routine privileging of industry interests over the interests of Indigenous peoples is reflected in the NTA. Despite the government’s claim that it is balancing the interests of industry with those of Indigenous peoples, the scales are heavily tilted in favour of industry interests in the NTA. This reproduces racial inequality whilst the government simultaneously claims to be redressing it, leaving Indigenous peoples to bear the burden of Enlightenment notions of “progress”.
The NTA should be amended to expressly state that native title rights and interests can include rights and interests of a commercial nature. However, it is pivotal that such rights promote the actual aspirations of Indigenous peoples in accordance with their right to self-determination. This would require a significant change to the current legislative framework.
Native title rights and interests of a commercial nature should be conceptualised in a manner broad enough to encompass forms of land use that involve economic hybridity. The UNDRIP provides a good starting point for considering how native title law could be developed in this area.
Dr Shelley Bielefeld is a Lecturer in the School of Law at the University of Western Sydney. Her research focuses on issues of social justice for Indigenous peoples and the need for government accountability in areas of law and policy.
 Noel Pearson, ‘From Remnant Title to Social Justice’ in Goot M and Rowse T (eds), Make a Better Offer (1994) 179 in Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (Lawbook, 4th ed, 2009) 291.
 Jon Altman and Sean Kerins (eds), People on Country – Vital Landscapes – Indigenous Futures (Federation Press, 2012) 1-22.
 Jon Altman, ‘People on Country as Alternative Development’, in Jon Altman and Sean Kerins (eds), People on Country – Vital Landscapes – Indigenous Futures (Federation Press, 2012) 1, 6.
 Tom Nairn, The Break-up of Britain: Crisis and Neo-Nationalism (New Left Books, 1977) 33 quoted in David Theo Goldberg, The Racial State (Blackwell Publishers, 2002) 74.
 Helena Whall, ‘Indigenous Self-determination in the Commonwealth of Nations’ in Barbara Hocking (ed), Unfinished Constitutional Business? Rethinking Indigenous Self-determination (Aboriginal Studies Press, 2005) 1, 4.
 Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (Lawbook, 4th ed, 2009) 302-303.