Courts of the Conquerors

Adani and the shortcomings of Native Title law

2020-01-01 - DR KATE GALLOWAY

Adani and the shortcomings of Native Title Law

In late August 2019, it was reported that the Queensland government had granted freehold title to mining company Adani over part of the lands of the Wangan and Jagalingou (W&J) people near Clermont in Queensland. 1 The story caught on, with social media outrage directed at what was described as a ‘pro-coal move’ by the Palaszczuk government. 2

In response, QLD Minister for Natural Resources, Mines and Energy, Dr Anthony Lynham, clarified that:

[the grant] was enabled by an ILUA [Indigenous Land Use Agreement] … authorised by the native title claimants and registered by the Native Title Tribunal almost two years ago. 3

The terms of ILUAS are confidential, yet the Native Title Tribunal register reveals that the W&J and Adani ILUA deals with ‘extinguishment, large mining', 4 supporting the Minister's

statement. But public criticism has remained focused on mining approval processes rather than native title itself.

The Adani Carmichael mine is at the frontline of the anti-coal environmental movement in Australia5 and beyond. 6

For years the proposed mine has raised a multitude of intersecting legal and political issues. Depending on one's perspective, the mine has aroused debate about mining, infrastructure, jobs, energy, royalties, exports, environmental protection, climate, and not least of all, native title.

The claim by the W&J people has been one of the more high-profile recent native title cases. Numerous court battles led by W&J cultural leader, Adrian Burragubba, and the group's prominent media campaigns have brought attention to the claim.

That the lands of the W&J people include the site of the proposed Adani Carmichael mine has resulted in widespread interest in Burragubba's attempts to protect his people's culture from the effects of mining. But for all the public concern over the mine and the complex systems of approvals for the project, there is less acknowledgement of the problems, especially for claimants, of native title processes themselves.

Native Title

In 1992, the High Court of Australia handed down the Mabo decision. 8 The

judgment recognised for the first time, that land title could be derived other than through a Crown grant. This shift in legal doctrine created an opportunity for the Anglo-australian legal system to recognise interests in land that had existed before colonisation.

Under these new principles, where claimants can show that they have an ongoing connection with land according to their ‘traditional' laws, and their interest has not been extinguished, then the court may declare that their interest be recognised.

Following the decision, and amidst heated public debate, 9 the Keating

government enacted the Native Title Act 1993 (Cth) (‘NTA'). The Act was designed as beneficial legislation to provide for: recognition and protection of native title; 10 its validation 11 and

registration; 12 negotiation, 13 mediation 14

and determination of interests; 15 and for

compensation.

Claims are commenced by notification to the National Native Title Tribunal. Once this occurs, activities to be carried out on the claimed land – such as mining – fall under the ‘future acts' regime of the NTA, giving

17 claimants a right to negotiate in relation to those activities.

Although these provisions give a status to traditional owners that did not exist before the Act, their rights are limited: the negotiation process is skewed in favour of non-indigenous parties; there is no right to veto the activity; and only a minority of agreements offer traditional owners any substantive benefit. 18

The Mabo decision and the NTA'S Preamble talk in lofty terms about ‘contemporary notions of justice and human rights' 19 and of ‘just and proper ascertainment of native title rights and interests'. 20

Yet the capacity of the NTA to bring justice to Aboriginal and Torres Strait Islander Australians after two centuries of dispossession remains constrained by its operation as a tool of the colonising state.

The norms of the dominant system inevitably reflected in the Act are entrenched through interpretation of the law by the ‘courts of the conqueror' – a phrase used by Chief Justice John Marshall in 1823 to describe the American judicial system21 but which is equally applicable to other colonised societies.

There are widely recognised

Depending on one's perspective, [Adani] has aroused debate about mining, infrastructure, jobs, energy, royalties, exports, environmental protection, climate, and not least of all, native title.

THE NEGOTIATION PROCESS IS SKEWED IN FAVOUR OF NON-INDIGENOUS PARTIES

problems with the architecture of native title law. These include:

• its failure to adopt conventional legal standards applicable to property rights,

• the unfairness of placing the burden of proof on claimants22 coupled with the difficulties of proving a normative system of pre-colonisation rights,

• over-specification of the ‘content' of

the rights claimed,

• harsh extinguishment rules, and

• ‘legislation that, from the outset, encourages [property rights'] erosion by compromise' through undue emphasis on mediation. 23

The NTA was extensively reviewed in a 2015 Australian Law Reform Commission (‘ALRC') Report. 24 The

recommendations have so far been ignored.

The role of the NTA in making it difficult to achieve its professed aim – of justice for Indigenous Australians – is evident in the claim by the W&J people for their lands.

The W&J Claim

The original W&J claim was lodged with the Native Title Tribunal in 2004 by eight named members of the claimant group over an area of approximately 30,200 km2.25 Those eight people together comprise a single ‘applicant' representing the group throughout the legal process, including in entering into the ILUA. The group was changed slightly in 2015.

Despite a series of meetings by the W&J claimant group to authorise an ILUA with Adani, by early 2016 they had so far rejected agreement. 26 In March

2016, the Wangan and Jagalingou Traditional Owners Family Council (‘ W&J Council') called a meeting seeking to remove four named members of the applicant. The Council cited concerns about whether negotiations with Adani had been authorised and that members of the applicant had inappropriately received sitting fees from Adani. 27

The meeting resolved to replace the four members, and, noting that the original group had no mandate to negotiate an ILUA with Adani, rejected the ILUA.

The following month, April 2016, saw another authorisation meeting that: rescinded the resolutions of the March meeting; affirmed the original members of the applicant; and authorised the Adani ILUA. Following this meeting, the Native Title Tribunal determined the authorisation process to be valid and registered the ILUA. Subsequently, Adrian Burragubba – a member of the applicant and of the W&J Council – challenged the ILUA on a number of grounds.

He claimed that the ILUA was invalid due to the miner's fraud, and adduced evidence of the adverse effect of the mine on the culture of his people. But the Federal Court found against Burragubba28 and the decision was upheld on appeal. 29

In another action, 30 Burragubba chal

lenged the agreement-making process. He questioned whether the ILUA was authorised as not all of the claimant group had agreed with its terms. He sought to uphold the resolutions of the March meeting which would necessarily overturn the ILUA. The Federal Court found, however, that in calling the March meeting, Burragubba had failed to adhere to the requirements of the NTA. His claim failed.

The Court therefore confirmed that the W&J people approved the ILUA despite apparent disagreement within the group, and despite evidence as to the cultural damage wrought by the proposed mine. It upheld the authorisation through technical requirements concerning the notice of meeting. Yet it did not address the concerns held by

The NTA was extensively reviewed in a 2015 Australian Law Reform Commission (‘ALRC') Report. The recommendations have so far been ignored.

Burragubba and others of the circumstances of approval of the ILUA and of its terms.

Although Burragubba and his supporters obviously disagree that upholding the ILUA is just, the question of justice goes beyond the fact of the ILUA, to the nature of native title itself.

Shortcomings of Native Title

The shortcomings in the native title process are evident throughout the W&J claim. The now 15-year-old claim, still unresolved, has so far afforded only the ‘thin' right to negotiate rather than the plenary rights expected of property ownership. The process has involved mechanisms for decision-making and dispute resolution inadequate for the needs and norms of the claimants themselves.

What comprises native title

Although native title rights prevail against all but the Crown, 31 in Australia

the Crown owns all minerals.32 Other

than rights to ochre, Australian courts have denied mineral rights as part of native title because there is ‘no evidence of any traditional Aboriginal law, custom or use' 33 of minerals. 34

Native title holders are therefore subject to the State's mandate to grant mining rights over their land.

In this respect, native title has equivalent status to freehold and

In Australia the Crown owns all minerals… Native title holders are therefore subject to the State’s mandate to grant mining rights over their land.

leasehold titles. Landholders' rights are constrained to negotiating the terms of entry rather than any more substantive right such as a power of veto. 35

In the overall scheme of native title, however, this is but one example of how the law limits what might comprise native title. It imposes constraints on the nature and extent of the right recognised, based upon what the common law is prepared to cede as vesting in Indigenous Australians.

This inherent limitation manifests in the right to negotiate but without the power of veto or, as Burragubba has claimed, the right to protect culture in the face of powerful political and industry interests.

Authorisation is technical

In addition to the constraints on what native title is, NTA processes are highly technical, creating challenges for traditional owners.

For example, until 2017, courts had accepted that an ILUA would bind a claimant group if a majority of representatives agreed to its terms. 36However, following the negotiation of a complex series of agreements in the longstanding Noongar claim in Western Australia, the resulting ILUAS were challenged37 on the basis that not all of the representatives had agreed to them: some representatives did not agree, and others had died before the ILUAS were finalised. The Court found that the language in the NTA required every single named representative to

Native title was once unthinkable for non-indigenous Australians but is now a routine part of our land tenure mix. Yet we have not achieved a balance of rights that would fulfil the stated aims of the NTA.

agree to the ILUA for it to be binding.

In response, the government promptly amended the NTA, to a mixed reception. Many, including traditional owner groups and miners, were keen to see a procedural amendment to protect existing interests. But many traditional owners were keen to be involved in the amendments and felt excluded from the process — a feature of lawmaking on matters affecting Indigenous Australians. Those opposing the rushed amendments included claimant groups who were challenging ILUAS before the courts, amongst them, the W&J Council. 38

Despite those objecting having a substantive interest at stake, the government narrative prevailed, encapsulated in then-prime Minister Malcolm Turnbull's promise to mining company Adani:

…assur[ing] senior executives from Adani that native title issues threatening the … proposed $21 billion Carmichael coal mine … will be fixed. 39

Possible reform

We are now further away from the Mabo decision than the 1992 decision was from the 1967 Referendum. Native title was once unthinkable for non-Indigenous Australians but is now a routine part of our land tenure mix. Yet we have not achieved a balance of rights that would fulfil the stated aims of the NTA and the urgent need to establish proper legal relations with Indigenous Australians. 40

A number of reforms to native title have been mooted over time. The difficulties briefly outlined here suggest some in particular. For example, as Richard Bartlett has pointed out, ‘Under conventional principles regarding the acquisition of territory, existing rights and relationships are recognised as a fact under the law of the acquiring state.' 41 Thus native title could simply be recognised as extant rights upon colonisation.

Further, the onus on claimants to prove that their interest has not been extinguished fails to accord with the law in equivalent jurisdictions where ‘[o]nce Aboriginal title is established it is presumed to continue until the contrary is proven.' 42 The burden of proof could instead be shifted to the State.

In accordance with the UN

Declaration on the Rights of Indigenous Peoples, the process of determining interests and takings by the State, such as the freehold grant to Adani, should adhere to principles of free, prior, and informed consent. 43 Adopting such a

threshold for dealing with Indigenous estates embraces principles of constitutive self-determination, affording ‘meaningful participation, commensurate with [claimants'] interests, in procedures leading to the creation of or change in the institutions of government under which they live.' 44

These suggestions for reform are not new, but they are politically bold given the fractious state of land management in Australia. Consequently, despite numerous reviews of the NTA45 and

Although the Mabo decision cleaved sovereignty from land ownership as a question of Anglo-australian law, conversations about land rights naturally intermix with questions of treaty and self-determination.

critiques of its operation, native title continues to reflect broader policy failure in Aboriginal and Torres Strait Islander issues in Australia. 46 Australia will remain a laggard in affording meaningful land rights without a much bolder, and broader, reform agenda.

We would be fooling ourselves to think that we could adjust the mechanisms of the NTA in isolation, without broader acknowledgement of the structures of governance within Indigenous Australian communities, and the clearly stated aspirations of Aboriginal and Torres Strait Islander Australians for Voice, Treaty, Truth articulated in the Uluru Statement from the Heart and the Report of the Referendum Council. 47

There is widespread acknowledgement of the shortcomings of the NTA. But to implement law reform in the absence of deep engagement with Indigenous Australians would be a mistake. The Regional Dialogues resulting in the Uluru Statement involved Indigenous communities around Australia prioritising their own future48 – one part of which involves a constitutionally enshrined Voice to Parliament.

It is now incumbent on the broader community, on policy makers and politicians, to bring these aspirations into being. While there may be other solutions, the Voice to Parliament is an elegant model that entrenches the voices of Aboriginal and Torres Strait Islander Australians within law-making institutions. Its validity is derived from the process of engagement already undertaken in the Dialogues, and to be continued.

Its purpose can clearly be seen in the urgent need for reform of native title law — reform which must be led by Indigenous Australians themselves.