Laying Claim to "Country": Native Title and Ownership in the Mainstream Australian Media

Aboriginal economic relations have been misconstrued as a type of primitive exchange in at least one native title case discussed in this paper. The pursuit by Aboriginal native title claimants of recognition at law of customary economic rights as inherent in, or an adjunct of, native title rights failed in Yarmirr and Others v. Northern Territory of Australia and Others (1998) 156 ALR 370 (the ‘Croker Island case’) for several reasons. The applicant's native title was found to be non‐exclusive of other interests, and a right to trade in resources of the sea was rejected. This case was argued in part by relying on historical material regarding Macassan trading arrangements. The profound alterity of Aboriginal relationships among persons and things, as the Croker Island evidence of property and trade relations demonstrates, have been re‐constituted in legal discourse as an absence of economic relations. In this paper, we argue that there is no sound basis for the distinction made between commercial and non‐commercial native title rights, whether in the Native Title Act 1993 (Commonwealth of Australia), or in recent judicial reasoning. We contend that native title rights and interests constitute a sui generis species of property relations that enable economic rights as conceived in Aboriginal tradition and custom to circulate in the modern market. Aboriginal customary economic relations of and between Aboriginal groupings are markedly distinct from, yet not incommensurable with, the normative conception of economic relations in the Australian market. We argue that a reformulation of the current Australian legal ideas about economic life is necessary for the recognition of Aboriginal economic institutions in native title claims and other economic arenas.

Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title.

Canada's experience with ‘regional agreements’ has attracted considerable attention in Australia as a means by which Indigenous people can secure their native title rights to land and sea and ensure they can participate in the development and management of their homeland territories. However, regional agreements implemented in Canada thus far have often taken years to negotiate. To provide a degree of certainty for resource management and decision‐making while the native title claims process is underway, Canadian governments have proceeded to establish interim resource use and management agreements with Indigenous communities. While both governments and Indigenous people stress that interim arrangements do not replace or limit the scope for future claim settlements, it is recognised that the development of such co‐operative relationships will make long‐lasting formal agreements easier to achieve. This paper draws on several recent examples of interim agreements that have been negotiated for the salmon fishery resource in the Skeena River catchment, and considers how these local experiences offer useful approaches for resource management and native title issues in Australia. These examples demonstrate the importance of building shared understandings of resource values and management approaches prior to cementing co‐management partnerships in formal settlements. They also show some of the problems and prospects facing Indigenous peoples in their efforts to benefit from such co‐management agreements.

This seminar is a reflection on legal practice in native title. It considers whether the common law, the Native Title Act, and the way lawyers and anthropologists practise together covertly assimilate or give the appearance of assimilating indigenous people to the dominant culture, thus destroying the basis on which native title is established. Traditional owners are the 'other' within the dominant culture. Eddie Mabo used the common law to achieve his ends, without necessarily internalising the dominant culture. However the development of the law since Mabo (No 2) has altered the relationship between the law and claimants. The courts have conceived of native title as sui generis, often denying it the benefits of the common law, or else they are obsessed with putting a common law label on native title rights and interests. This means that native title, which is defined by common law as customary law, fails to measure up to our own common law standards. Where it does, it becomes part of the dominant system and the values and (legal) culture of the dominant group is impliedly internalised by traditional owners as part of recognition. The Native Title Act now squeezes Eddie Mabo's use of common law into a process driven administrative/judicial hybrid - it requires adherence to the dominant, and the dominant recognises the participants as of the dominant culture - there is no other place for them (eg alongside). Lawyers, as part of the dominant system, use peoples' stories, knowledge etc as evidence, taking it out of traditional owners’ framework and into the common law. If lawyers don't allow their clients’ voice to be heard (as to identity, whether they accept and adhere to the dominant paradigm) then are lawyers complicit in creating an understanding of traditional owners as having internalised the dominant value system? The common law’s perception of traditional owners has dismantled culture to demonstrate the ongoing integrity of traditional law and custom (required to prove native title). In this process the common law takes ownership thus destroying what it apparently sought to protect.

The decision of the High Court in Mabo v State of Queensland [No. 2] (Mabo [No. 2]) recognised the rights of indigenous people to land that arise from their original occupation of that land. Previously, these rights had not been recognised by the law. As a consequence, many statutory arrangements did not accommodate the existence of native title rights and interests. The relationship between native title rights and planning control legislation is significant. The emergence of native title as a new category of private use rights, previously not considered in planning schemes, may have significant implications for the adequacy of those schemes. In this paper, the relationship between the Local Government (Planning and Environment) Act 1990 (Qld) and the Native Title Act 1993 (Cth) will be considered

Since the introduction of the Native Title Act 1993 (Cth) and its subsequent amendment in 1998, the main focus for developing pipeline projects was on native title issues. Cultural heritage was seen as a more operational matter and not one that would affect the ability to operate or construct pipelines. With higher standards being set by the High Court for native title claimants to maintain a claim, the management of cultural heritage issues (as opposed to the protection of native title rights) are now forming a significant part of negotiations between project proponents and indigenous groups for the development of petroleum projects.State, Territory and Commonwealth legislation dealing with Aboriginal cultural heritage also provides a more immediate source of obligations on project proponents. Even when all regulatory authorities and approvals are held, this legislation can provide affected parties the ability to stop projects if proponents ignore the requirements to protect and manage Aboriginal cultural heritage.This paper briefly examines how cultural heritage issues and native title issues interact from a practical viewpoint and then goes on to provide an overview of cultural heritage legislation throughout Australia including a focus on the unique model adopted in Queensland through the introduction of the ‘cultural heritage duty of care’.This paper then provides examples of what companies will need to do to comply with statutory obligations in minimising harm to cultural heritage through examples of common inclusions in cultural heritage management plans, together with identifying issues that are often forgotten to the detriment of a project in such plans. It also points out why cultural heritage issues may need more immediate actions in comparison with native title issues for the development and construction of new petroleum projects.

389Sea — Native title — Native title rights in relation to waters including accessing and taking resources for any purpose — Native Title Act 1993 (Cth) — Whether successive legislation which prohibited taking fish and other aquatic life for commercial purposes without licence inconsistent with that right — ExtinguishmentSea — Territorial sea — Reciprocal access and use rights recognized in Islander society arising out of personal relationships — Whether reciprocal rights “native title rights and interests” — The law of Australia

Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues.This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues. This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

The South West Queensland Pipeline project has set a new benchmark for Aboriginal involvement in corridor project planning and construction in Australia.Before the final pipeline alignment was decided, Tenneco Energy Australia (now Epic Energy), the Queensland Government and the Goolburri Aboriginal Corporation Land Council arranged for Aboriginal Researchers to conduct a foot survey along a 200 in wide corridor for the full 756 km of the pipeline route. The final alignment was selected to avoid all cultural heritage sites identified by the Aboriginal Researchers.At the commencement of the construction phase, a Cultural Heritage Management Plan (CHMP) covering construction activities was developed. Key components were as follows:Goolburri Aboriginal Corporation Land Council engaged as a service provider to provide Aboriginal Researchers, a Cultural Heritage Management Officer (CHMO), and an auditor for the project;Four Aboriginal monitors to be present on the project during clear, grade and trenching activities;An archaeologist to be present on the project to coordinate Aboriginal monitoring and cultural heritage management activities;A cultural heritage management audit to be conducted at the end of each four-week work cycle to identify non-conformances with the CHMP and recommend improvements;Cultural awareness training to be undertaken by the workforce and presented by Aboriginal representatives; andInstant dismissal provisions for serious infringements of the CHMP.The cultural heritage clearance process and the CHMP were probably the most extensive ever implemented for a pipeline project in Australia in terms of the extent and nature of Aboriginal involvement. Despite this, there was ongoing concern about whether the appropriate Aboriginal groups were being involved in the project. Cultural heritage management of the project became linked to the question of traditional association with the land and native title rights. Disparate views about the rights of different Aboriginal groups continually emerged.Of particular note was a tribal boundary dispute which resulted in prematurely closing down the first cycle of construction and leapfrogging the 108 km stretch under dispute to provide Aboriginal groups with time to resolve the issue. This action directly resulted in additional project costs (construction rescheduling and backtracking crews) in the order of $5 million.This case study will look particularly at:the process of cultural clearance and cultural heritage management which evolved for the project;issues associated with establishing appropriate Aboriginal representation for involvement in the project;native title claims; andsuggestions for improving management of native title, cultural heritage and Aboriginal involvement issues for future projects.

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

Are the aboriginal people from urban and rural Australia, whose lives in so many ways are like those of their non-indigenous neighbours, able to prove that they have a normative system of rights in country that is rooted in the pre-sovereignty past of their Aboriginal forebears? Are claimants from such backgrounds united in their common observance of a relevant body of laws and customs? Following on from the concerns of the previous chapter, I here address these questions principally through the lens of the links such people have maintained, or otherwise, between social organisation and the kind of belonging to country that gives rise to recognised customary rights capable of being recognised as native title rights. The evidentiary basis for this chapter is very much greater than space allows me to present here, but I refer readers to my earlier publication Native Title and the Descent of Rights, where that wider body of evidence is summarised.

The concept of ‘native title’ was first recognised in Australia by the High Court of Australia in the Mabo decision of 1992. Since that case, there have been a number of court decisions which have had the effect of limiting the scope of the rights protected under the umbrella of native title, the range of people who might successfully claim native title rights and the land under which native title rights might exist. However, indigenous heritage protection laws have the potential to impact to a greater extent than native title on future land use, particularly by the resources industry.

This thesis argues that the registration system for native title is not comprehensive, certain or current. It is out of date in at least two of the three Registers and is selective in the information that is registered. Accordingly, one is required to search in numerous places to achieve any level of certainty in relation to whether native title exists over Crown land and water. There are serious omissions from the Native Title Act 1993 (Cth) (‘Native Title Act’), which do not assist.There is nothing in the Native Title Act that prevents the States and Territories from duplicating the registered information concerning native title in land and indeed New South Wales has to some degree done this already. Queensland has taken a different approach and has established separate registers for different types of Crown land, which is not ideal from a registration or titling perspective where the ideal is to have one conclusive register in which all interests are registered or recorded. These differing approaches by States add another layer of uncertainty.The major deficiencies with the current system could be addressed if native title was recorded on the title to Crown land. The regime related to water is slightly more complex, due to the lack of an existing registration system. In relation to native title in inland water, native title could be the subject of a separate geospatial layer, section or register and be recorded on the registers established under the various Water Acts of the States and Territories. Native title in the sea would require the development of a new register and an accompanying conclusive three-dimensional marine cadastre in which to record all interests including native title rights and interests. The three-dimensional aspect of the sea would be catered for and interests in the layers of the sea, being the surface, the water column and the sea bed, would be addressed in the cadastre. For example, the rights of navigation and access, including native title access, are exercised in at least two layers, being the surface and the water column. Other rights such as gathering are exercised in the three layers of the sea. Development would be complex and geospatial experts would be invaluable but the end result would justify the expenditure. It is recommended that a Commonwealth working group be established to investigate this recommendation.This thesis will add to the literature in the area of native title, titling and registration, filling a crucial gap in this area. It is also anticipated that the findings of this thesis will be of great interest to the Commonwealth and State governments as they continue to grapple with how best to communicate information on native title. The implementation of the recommendations herein will also deliver economic benefits because with greater conclusiveness, currency and certainty regarding this information, the costs of development on Indigenous land would be lower.

The fact that customary land is not included as an object of land registration in Government Regulation No. 24/1997 causes indigenous peoples' control over customary land not to be based on rights that can be proven in writing. This causes the rights of indigenous peoples over their customary land to be marginalised. Following up on this, the Government enacted Minister of Agrarian Affairs Regulation No. 9/2016 on Procedures for Determining Communal Rights to Land of Customary Law Communities and Communities in Certain Areas, which was later revoked and replaced by Minister of Agrarian Affairs and Spatial Planning Regulation No. 18/2019 on Procedures for Administration of Customary Land of Customary Law Communities. Initially, indigenous peoples' land tenure was based on communal rights, and then it was changed to be based on the administration of customary land rights. Therefore, it is necessary to know the scope and purpose of customary land administration and the difference with land registration to understand how to guarantee the legal certainty of the control rights of indigenous peoples over their customary land. This research is normative juridical type by using a legislative approach and analytical approach. The research results show that customary land is not ordered for registration in Government Regulation No. 24 of 1997 concerning Land Registration. The administration of customary land is to record customary land in the land registry book so that it differs from land registration. Recording customary land in the land registry book can minimise overlapping disputes between indigenous peoples and private parties.