'The Declaration and implementing Indigenous Land Justice' Matthew Storey Native Title Services Victoria Ltd

1. Castan Centre for Human Rights Law Symposium on Australia’s Implementation of the UN Declaration of the Rights of Indigenous Peoples 'The Declaration and implementing Indigenous Land Justice' Matthew Storey Native Title Services Victoria Ltd

2. Overview • “Future Acts” and Article 32 • Cultural Revitalization and Articles 11 and 13 • Indigenous Governance under the NTA and Articles 4, 18, 19 and 20, • The interpretation of Articles 26, 27 and 28 and the role of the Indigenous Land Corporation.

3. Future Acts Article 32.2 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

4. Future Acts and the Declaration • Free • Prior • Informed • Consent • Representative Organisations • Native Title Report 2010 • see also for example Arts 10, 11 19, 28, 29

5. Future Acts and the NTA • Those procedures that require no engagement with native title holders: • Those procedures that require merely notification of native title parties and an opportunity for their comment; • Those provisions requiring satisfaction of the Right to Negotiate (RTN) procedures of Subdivision P.

6. Cultural Revitalisation • YortaYorta Aboriginal Community v Victoria (2002) 194 ALR 538 • Article 11: Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

7. Cultural Revitalization • Native Title Act Reform Bill 2011 • Evidential onus and revitilisation • Cultural Heritage and traditional connexion

8. Implementing Indigenous Governance Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions

9. Implementing Indigenous Governance The role of the Prescribed Body Corporate. • Is the “traditional” decision making processes adopted by (or proposed to) the PBC the legitimate traditional decision making processes and what happens if these processes offend notions of democracy. • How is the relevant body politic determined? • Lateral Violence; Native Title Report 2011

10. Land Justice – Articles 26 - 28 • Article 26 • 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. • 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. • 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

11. Land Justice – Redress and Confiscation Article 28 : 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, of a just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

12. Land Justice – Adjudication and Recognition Processes Article 27 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

13. The ILC • …to enable indigenous people to acquire land and to manage and maintain it in a sustainable way, to provide economic, social and cultural benefits for themselves and for future generations of their peoples…The Bill is not directed at anything else on the policy or program agenda…[it] is for the single purpose of building and sustaining and adequate stock of land in the hands of indigenous owners currently dispossessed.

14. Conclusion • Plausible Deniability • Future Acts • Redress for Confiscation