Native Title Act - a perfect chapter for the Art of War

Images: Left: Lydia is moving her mattress to the side of the road near Broome, WA. (Ingetje Tadros).
Right: John Watson and Justice Gilmour - West Kimberley WA (KLC)
Media Release

Ghillar, Michael Anderson 4 August 2017

Recently there has been a lot of social media chatter in the Eastern States about the pros and cons of Native Title that has created a lot of angst for many people. It is difficult to get the message across to our people in respect to Native Title, because Native Title in itself is a relatively new, very complex and difficult concept to understand, let alone master.

Shouts and cheers from the jubilant mob in the Pilbara
In July 2017 the Federal Court recognised an exclusive native title claim over land on which Fortescue Metals Group's $280 billion Solomon mine sits in Western Australia's ore-rich Pilbara region.

There were shouts and cheers from jubilant Yindjibarndi representatives in Roebourne, where proceedings were sent via videolink as Justice Rares handed down his decision.

However, Twiggy Forrest, immediately lodged an appeal against the Federal Court's ruling.


The recent case in WA, involving Twiggy Forrest's Fortescue Metals Solomon Mine in the Pilbara, is a classic example of uncertainty for the colonialists and the fact that the Australian government, through the Native Title Act, has literally failed in its efforts to create certainty for the colonial land grabbers. As a consequence of the recent Federal Court ruling that the Yindjibarndi have 'exclusive possession' over the claimed lands, Fortescue Metals is liable to pay millions of dollars in compensation for its Solomon Hub mine in the Pilbara, WA. Twiggy Forrest, however, immediately lodged an appeal against the Federal Court's ruling. [Which was overturned in the High Court on 29 May 2020 Edit 30 May 2020]

We are fortunate when we find a white lawyer, like George Irving in WA, who was prepared to fight the true fight for the Yindjibarndi. As we have seen from two WA cases, when there are some legal minds, that understand the need for true justice, then we win.

First Nations Peoples are very well aware that all is not right within the colonial jurisdiction. Quite frankly, Native Title Services, including Land Councils, and lawyers are paid to pacify the mass of Aboriginal opposition. The only people who are benefitting from First Nations disunity are those belonging to the occupying colonial State, and so we must ask: Who is the enemy? We all know that there is something very wrong, but First Nations people tend to attack each other, because it's easier than taking on the illegal colonial invading power.

But I can say that, if people were to read The Art of War by Sun Tzu, the most significant aspect of the Native Title Act is the fact that it creates division within the clans and the Nations. Moreover, it creates conflict between environmentalists, First Nations Peoples, mining companies and other extractive industries. The government and the mining executives sit idly by watching our people tear themselves apart over ideological beliefs, without our people realising that this is, in fact, a very deliberate process to cause internal conflict between all proponents of opposition to the extractive industries. In the jargon of strategies to destabilise populations, it is called LIC, Low Intensity Conflict.

Unfortunately, the media is very well regulated and, without knowing it, cannot find it within itself to be truthful about the 'Art of War'. Australia is nothing but a colonial autocracy, in which the leadership within the political environment is filled with megalomaniacs. In the face of opposition to the extractive industries, these megalomaniacs play a very clever psychological game with the public, by employing the First Nations 'deficit model' and by broadcasting stories of need in the communities. Then they suggest that the mining industry is good for our people, because of the creation of jobs and the significant contributions to the public purse, which provide (it is alleged) the government with the economic resources for the much needed infrastructure that Australia so desperately requires.

This strategy of playing with the hearts and minds of the uncommitted public creates in itself an opposing and antagonistic group mentality. No group - be it Aboriginal, environmentalist or other - will stop the extractive industries, unless the opposition establishes a clever method of convincing the investors to divest their money from the ambitious economic developments promising significant returns. The profits are at the expense of Mother Nature and cause an expeditious decline, exhausting the earth's natural resources, and in doing so contribute to mass climate change, which is even more threatening than the destruction wreaked by the extractive industries.

It should be noted that some of those who invest in the extractive industries come from such suburbs in Sydney as Palm Beach, Narrabeen, Dee Why, Manly and of course Vaucluse and Double Bay to name a few. With a 0.5 - 1.0 degree centigrade increase in climate change in the next 50 years or so they too will have to abandon their homes and head to the hills.

We should take note of these methods of the Art of War. It is important to understand that governments create an irrational fervour amongst the population to gain political advantage. If people were to take the opportunity to read the Native Title Act 1993 as amended, in particular those sections that take away everything from First Nations Peoples, then they would understand that, by sitting idly by and doing nothing to bring about change within the Act itself, they are only deluding themselves into believing that they can do something to prevent the damage that is currently being planned and done.

It simply comes down to one significant point: we are damned if we engage with the Native Title process and we are damned if we don't, because there is no right of veto.

The government has a very big ace up its sleeve in respect to its ability to override popular dissent and that is they do it 'in the National Interest'.

This 'National Interest' is their sacred icon that deflates opposition.

I wish to draw your attention to the fact that the Native Title Act 1993 as amended was created by the Commonwealth government's executive power under its constitutional head of power section 51 (26), the Race Power. There was no other constitutional method for the Commonwealth government to authoritatively introduce legislation of this kind. We must remember at all times that First Nations and Peoples who assert Native Title are not citizens of Australia.

Non-Aboriginal and Aboriginal lawyers to this day do understand the difficulties and challenges associated with Native Title. Given the continuing angst that is surfacing, I thought it appropriate to revisit this germ called Native Title in more detail.

Native Title has to be looked at from where Keating and his Labor government were coming from at the time of the Native Title Act's introduction into Australian colonial law. It is a good personal policy is to look at the main objectives of the Native Title Act 1993, which can be found in Section 3:

    3. Objects
    Main objects
    The main objects of this Act are:
    1. to provide for the recognition and protection of native title; and
    2. to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
    3. to establish a mechanism for determining claims to native title; and
    4. to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

Let's focus on the contradictions between these subsections.

If we look at the terms in (a) 'to provide for the recognition and protection of native title' and then we look at (c) 'to establish a mechanism for determining claims to native title', then we must ask ourselves: Why the contradiction? Clearly, the Australian parliament took it upon itself to establish a criterion that had to be met in terms of what constitutes a successful claim for Native Title. This is autocratic control and goes against any good policy, because it is arbitrary.

If we are to look at this whole question of what constitutes Native Title, racism rears its ugly head, because the colonialists, in the guise of the Commonwealth executive government, restricted the definition of Native Title to one, which is constituted by a 'bundle of rights' only. Native Title is not Land Rights.

What is the Australian definition of a Bundle of Rights? Hunting, fishing gathering, access to sites, etc. These Bundles of Rights are restricted to public areas, National Parks, including Marine Parks, Nature Reserves and public Crown land. Non-Aboriginal perpetual leases, short, medium and long-term leases and freehold title to land does not take away Native Title rights, they merely suppress them. The government has legislated that the suppression is so great that it 'extinguishes' our claim of rights, because they argue that the Native Title cannot be revived. See Schedule 1 at the end of Native Title Act to understand the extent of the prescribed land titles and uses that suppress Native Title, so that these lands cannot to be claimed.

Now let's look at (d) of the 'Main objects' and how to interpret this subsection. It has to be read literally: ' to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title'. My interpretation of this is one which describes a very well hidden intent to steal all our First Nations rights, by way of the written word. The theft is in the first three words of this text, that is, 'to provide for'. I don't necessarily want to engage in a lesson in English grammar, but (a) and (d) represent total contradictions of purpose, because in (a) ' to provide for the recognition and protection of native title' the emphasis is on the word 'the', which identifies the topic and subject matter, which is to recognise and protect our Native Title rights. But when we look at (d) to 'provide for ' is followed by the words 'or permit' which clearly establishes the uncertainty of what they were legislating for. The two words 'or permit' qualify their actions due to uncertainty and then the rest of the wording is the 'validation of past acts, and intermediate period acts'.

Now we ask the question: What acts are they talking about because they are not clearly defined?

The way in which lawyers interpret 'past acts' is that all acts done by the government before 1975 have to be considered 'valid' only because there was no the Racial Discrimination Act until1975. The Racial Discrimination Act 1975 is to be read as defining our fundamental Human Rights, as commencing from the introduction of the Racial Discrimination Act in 1975.

So the question has to now be asked: If we were citizens of this island continent, then why are our rights restricted to a post-1975 period? This same question was asked in the Jack Congo Murrell case in the then burgeoning New South Wales Supreme Court, where it was proposed by his English advocate at the time that if he was a British subject, that is the subject if the king, then why was he not entitled to be compensated for the theft of his lands?
[ R v Murrell and Bummaree [(1836) 1 Legge 72; (1836) NSW SupC 35 ]

Is it not true that the fundamental constitutional base for English law arises from the Magna Carta of 1215?

  1. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Is it also not true that when South Australia was founded as an independent colonial legislature, that the Letters Patent dictated that the Aboriginal people were not to be dispossessed of their lands and possessions?

Is it also not true that the founding documents of Western Australia were such that the British parliament wanted to protect Aboriginal Peoples' welfare, when it included Section 70 in the Western Australia constitution? But it was Twiggy Forrest's great grandfather who set up camp in London to argue against these payments being maintained in the WA constitution and Section 70 was deleted:

Section 70. Sum payable to Aborigines Protection Board
THERE shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of Five thousand pounds mentioned in Schedule C. to this Act to be appropriated to the welfare of the Aboriginal Natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of Aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the Aborigines. The said annual sum shall be issued to the Aborigines Protection Board by the Treasurer on warrants under the hand of the Governor, and may be expended by the said Board at their discretion, under the sole control of the Governor, anything in " The Aborigines Protection Act, 1886," to the contrary notwithstanding. Provided always, that if and when the gross revenue of the Colony shall exceed Five hundred thousand pounds in any financial year, an amount equal to one per centum on such gross revenue shall, for the purposes of this section, be substituted for the said sum of Five thousand pounds in and for the financial year next ensuing.

If in any year the whole of the said annual sum shall not be expended, the unexpended balance thereof shall be retained by the said Board, and expended in the manner and for the purposes aforesaid in any subsequent year.
[52deg; VICTORLE, No. 23. The Constitution Act, 1889]

Historically we see extensive efforts by the colonialists to deprive and deny First Nations of our rights and resources.

The massive text of this Native Title Act 1993 as amended is designed in such a manner to circumvent simplicity. Because this is an act 'to permit' the validation of illegal past acts, they chose to obscure their intent to provide for the perpetual denial of illegalities and land theft, including but not limited to the theft of water and other natural resources.

On the question of land, if we are to look at the very last part of the Native Title Act 1993 as amended, that is 'Schedule 1', I am amazed how the Commonwealth government acquired a constitutional right to pass such a Schedule in a Commonwealth Act, because the Commonwealth does not have a right to secure any land title for States. The constitution of Australia does not permit this, because land tenure belongs to the sole jurisdiction of the colonial States. This Schedule 1 in unconstitutional and therefore completely illegal.

I argue that all land tenure within the States is subject to challenge and the Commonwealth cannot protect them.

Under the Commonwealth Constitution Act 1901 the States have a right under Section 105 to cede and/or refer matters to the Commonwealth government. In respect to Schedule 1 of the Native Title Act 1993 as amended, did the States follow this procedure and, if so, what are the terms of those arrangements?

What is interesting, when we pause to consider this is: Why couldn't the States themselves pass their own legislation to say the same, instead of relying on Schedule 1 to the Commonwealth Native Title Act?

Another question we should all now ask is: What constitutional head of power did the States use, within their own constitutions, to pass any laws in the States for Aboriginal and Torres Strait Islander Peoples?

In my research there are no constitutional heads of power that permit the State parliaments to pass and laws for Aboriginal and Torres Strait Islander Peoples, which makes any legislative acts by the States invalid, ultra vires.

We now need to educate our First Nations People, in particular our younger generations, to take a very close look what has been done illegally for the past 229 years. In saying this your starting point must be your own State's constitution. Search for the constitutional head of power that the State legislators used to pass laws for Aboriginal and Torres Strait Islander Peoples. I may be wrong but I cannot find one.

This therefore raises the obvious question: How did the States gain any legal authority to pass laws for Aboriginal and Torres Strait Islander Peoples, if the head of power is not constituted for?

We must also be reminded that when the Native Title Bill first came out Aboriginal and Torres Strait Islander people all over the continent rejected it. First Nations people burnt the Bill in a fire as an outright rejection, other Aboriginal and Torres Strait Islander people followed suit. The 1993 national gathering at Boomanulla Oval in Canberra also voted to reject the Native Title Bill. Such was the anger directed at this Native Title Bill that Michael Nelson Jakamarra produced a hammer and pick to the people present on the mosaic of his artwork in front of parliament House and he intended to remove his mosaic saying: "This is no longer a place we can meet as equals." His Elder female peers intervened preventing him from desecrating his own artwork. It can now be revealed that Charles Perkins and Lois/Lowitja O'Donaghue were overheard, by a number if Aboriginal people, saying to the media; "If you report a split you will loose your job." The headlines on the following day stated that the Aboriginal protesters had called for a delay in the passing of the Native Title Bill. Not so, they rejected the Native Title Bill.

The Mabo (No.2) decision, without saying it, did give us a legal foundation from which to argue our pre-existing inherent sovereign rights, under our Law and custom, which is the genuine continental common Law, established by the Tjurkurppa or Gommarra and is interconnected through the Songlines that traverse this continent. This establishes the ancient common Law of Land, which cannot be interfered with or taken from us arbitrarily, except in the case of war or cession.

The Native Title Act is a very clever tool of the oppressive occupying rulers to attempt to push into oblivion our ancient continental common law, while fraudulently deceiving our people into believing the Native Title Act is legal and beneficial.

This is compounded by the fact that so many Native Title holders do not have English as a first language and are dependent on lawyers to interpret the complexities of the Native Title Act for them. It is our experience that Native Title lawyers misinterpret the Act in favour of mining companies and developers and do not explain fully to First Nations Peoples' that their inherent rights have survived the Native Title process, nor do they encourage any thought of challenging the inbuilt and ingrained racism, which has been written into this Native Title Act 1993 as amended.

We are truly stuck between a rock and a hard place, politically and legally, with no right if veto.

Now let's look at Section 25 of the Native Title Act, in which there is an attempt by the Commonwealth government to allow for Aboriginal and Torres Strait Islander people to have some say and rights over lands and waters that are not included in the massive Schedule 1 to this Native Title Act.

Interestingly enough, Section 25 (1) states:

Overview of Subdivision
  1. In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
    (aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals);
    1. certain conferrals of mining rights;
    2. certain compulsory acquisitions of native title rights and interests;
    3. other acts approved by the Commonwealth Minister.
  2. Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.
  3. If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
  4. If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
  5. States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.
  6. Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.

As can be seen from this section we do not have a provision that permits Aboriginal and Torres Strait Islander people to say NO to any future act, whether it is government, private development or mining of any description.

If we now go to Section 33 we can see that the Commonwealth government has legislated for a right to negotiate (RTN):

Negotiations to include certain things
Profits, income etc.
  1. Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
    1. the amount of profits made; or
    2. any income derived; or
    3. any things produced;

    by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
    Existing rights, interests and use

  2. Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
    1. existing non-native title rights and interests in relation to the land or waters concerned;
    2. existing use of the land or waters concerned by persons other than native title parties;
    3. the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.

If Aboriginal and Torres Strait Islander people decide not to negotiate on anything after a Native Title application has been lodged, the Native Title Act provides for an arbitrary determination to be made, which is provided for in Section 35. Here, we find that if the arbitrary body fails to reach a satisfactory agreement with the mining company or developer, when the Native Title Applicants refuse to negotiate Section 35 (1)(b) sends you to section 36A, where the matter is then referred to a Crown Minister of a State or Territory to make their own arbitrary decision after they have consulted with the Commonwealth Minister.

Application for arbitral body determination
  1. Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:
    1. at least 6 months have passed since the notification day (see subsection 29(4)); and
    2. no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.
      Withdrawal of application
  2. At any time before a determination in relation to the act is made under section 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.

    Negotiations for an agreement

  3. Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.

If we look at 36A (2):
Criteria for making determination

  1. The relevant Minister may only make the determination if the relevant Minister considers that:
    1. a determination under section 38 is unlikely to be made within a period that is reasonable having regard to all the circumstances; and
    2. if the relevant Minister is a State Minister or a Territory Minister--it is in the interests of the State or Territory to make the determination at the time; and
    3. if the relevant Minister is the Commonwealth Minister--it is in:
           (i) in any case--the national interest; and
           (ii) if the act concerned is an act attributable to a State or Territory--the interests of the State or Territory;
      to make the determination at the time.

    Relevant Minister may consider other matters

  2. Subsection (2) does not prevent the relevant Minister from having regard to other matters in deciding whether to make a determination under this section.

Having regard for all of this, as Aboriginal and Torres Strait Islander Peoples, we have one of three options:

1) Elect to make a Native Title Application under the Native Title Act. If our people chose to go down this path of lodging a Native Title Application then you are and we are all bound by this Act and the terms therein.

2) The Nation, by way of a block, says NO to any Native Title Application outright, from the beginning, or, withdraws the Native Title application all together, as some have already done, e.g. Euahlayi (NSW) and Murrawarri. The quandary for all of us is that, if we do not agree to register a Native Title claim, then we have no right to negotiate, nor be included in any considerations in respect to the development and exploitation of our lands and waters. This means the projects go ahead on and within our lands, without any engagement with us as the original owners.

3) We can challenge, if we choose, various aspects of the Native Title Act 1993 as amended, within their legal system. As always the thief is the judge!

These are the challenges that we face when it comes to our future and the health of our Country. We have to make hard decisions.

We unite to fight, or we are condemned to individualism. The effects of the Art of War are revealed in their entirety when our people fight each other without giving any consideration to the fact that we are victims of a very smart and deceitful evil called neo-colonialism.

While our people fight and bring each other down, the colonialists move forward, exploit and profit.

So without the damnations we need to be mature about how we go about fighting the occupying and oppressive Australian State.

The way the occupying State's courts operate in terms of justice, in their eyes, is to select particular parts of the Native Title Act, when we claim it is depriving us of our legal rights under our Law and custom, and ignore our fundamental Human Rights as are guaranteed under international law.

This is not a fight for one person, but many. This is our challenge on and for Country.


Ghillar, Michael AndersonContact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here