REVIEW OF THE CLAIMS RESOLUTION PROCESS
IN THE NATIVE TITLE SYSTEM
Aboriginal and Torres Strait Social Justice Commissioner, Tom Calma
Role of the Aboriginal and Torres Strait Islander Social Justice Commissioner
The Aboriginal and Torres Strait Islander Social Justice Commissioner under section 209 of the Native Title Act 1993 (NTA), is required to report annually to the Commonwealth Attorney-General on the operation of the NTA and its effect on the human rights of Aboriginal and Torres Strait Islander peoples. As part of this role, the Commissioner also provides submissions to government reviews and inquiries in relation to the operation and effectiveness of the native title system. It is in this capacity that the Commissioner provides the following submission to the Claims Resolutions Review process.
Purpose of the Review
The Claims Resolution Review is part of a package of reforms to the native title system, announced by the Attorney-General in September 2005. Other areas of reform include:
- Measures to improve the effectiveness of Native Title Representative Bodies (NTRBs)
- Reform of the respondents financial assistance program
- Technical amendments to the NTA designed to improve existing processes for native title litigation and negotiations
- Measures to encourage the effective functioning of Prescribed Body Corporates (PBCs)
- Promoting more transparent practices in the resolution of native title issues between Commonwealth, State and Territory Governments.
The focus of the Claims Resolution Review is on how the Federal Court and National Native Title Tribunal (NNTT) can best assist native title parties resolve claims efficiently, in a manner that is fair and just for all parties. The Review will examine the relationship between the NNTT and the Federal Court and consider how the claims resolution process can be improved to encourage agreement-making.
The Claims Resolution Review process
The Claims Resolution Review process is being undertaken by Mr Graham Hiley QC and Dr Ken Levy as consultants. The Review is being overseen by a Steering Committee made up of the Attorney-General’s Department, the Office of Indigenous Policy Coordination, the Registrar of the Federal Court and the President or member of the NNTT.
On October 20, 2005 I wrote to the Attorney-General highlighting the importance of native title stakeholder participation and recommending that Native Title Representative Bodies (NTRBs) and Native Title Services (NTSs) be able to nominate a representative to work with the consultant team and another representative for the Steering Committee. In response, the Attorney-General recognised the importance of native title stakeholder participation and noted that all NTRBs Chief Executive Officers and Principle Legal Officers will be invited to participate. However, I still hold some concern that the participation of native title stakeholders at this level may not be sufficient to adequately incorporate the experience and knowledge of NTRBs and NTSs in the Review process and in developing its recommendations to the Attorney-General.
Further, the consultation process itself has been conducted within a very short time period. The details and terms of the Review were announced on 17 October 2005 and closing dates for submissions were set for 1 December. This allowed only 6 weeks for submissions to be prepared by native title stakeholders and other interested parties. During this time I also understand that the Review team undertook consultations with native title stakeholders.
In addition, to the Claims Resolution process the other areas of the Government’s reform package are being progressed. Submissions and consultations on reforms to the PBCs; technical amendments to the NTA; reforms to the respondent funding program; and measures to improve the effectiveness of NTRBs are being conducted all within a 2-3 month timeframe.
I am concerned that the time allowed for the Native Title Reform package generally is not adequate to ensure that participants are able to provide a clear and detailed assessment of each of the areas being considered and that this may undermine the value and outcomes of the consultations. However, this limitation may be overcome if a further opportunity for comment/consultation were available following the completion of the reports and the development of recommendations.
I understand that the Claims Resolution Review team is to provide a report, including recommendations to the Attorney-General in late March. I recommend that this report and its recommendations be made available to native title stakeholders and other participants in the consultations for comment and further consultation. This opportunity for comment and consultation would greatly assist the process and enable participants to provide feedback and comments on the conclusions/recommendations developed from the information they have provided. This promotes greater transparency in the process and would assist in ensuring a co-operative and effective consultation process.
The impact of other features of the native title system on the efficiency of the claims process
The efficiency of the claims resolution process is not only affected by the issues examined in this Review. The funding and resource allocation within the native title system are key determinants in the resolution of claims. Three areas of funding and resource allocation are significant; NTRB funding levels, third party respondent funding and, the balance of funding allocation between the institutions within the native title system including the NNTT, Federal Court, NTRBs and respondent parties. On this last point, from 1998-1999 to 2002-2003 NTRBs proportion of funding has declined, while funding to other areas of the system including respondents, the NNTT and the Federal Court have increased.1 As a result, these institutions and parties have the resources to progress claims while NTRBs are less able to keep pace with the progress of claims.
The problems arising from the current NTRB funding levels is well recognised. Submissions to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into Indigenous Land Use Agreements (ILUAs) in 2001, highlighted a number of problems. Recognising the concerns expressed by NTRBs the Committee noted:
Virtually all representative bodies indicated that they did not have sufficient resources to assist the negotiation of ILUAs within the timeframes desired or required by proponents. For example, Central Queensland Land Council said that its resources would only allow it to hold annual meetings of native title groups for purposes of authorizing agreements within its region. Where proponents wished to pursue agreements more quickly, the Land Council was seeking to recover costs of doing so from the proponent. The Western Australian Aboriginal Native Title Working Group, which is a federation of Western Australian representative bodies and ATSIC representatives, noted that its members were also seeking to recover negotiation costs from its proponents.2
Local government representatives also gave evidence that the resources of representative bodies are so tied up in litigation, the representative body re-recognition process and re-registration of native title claims that they do not have the capacity to negotiate agreements (including future act agreements) and that this impedes local and regional development.3
Mining corporations are also providing funding to NTRBs so that native title claimants have adequate resources to negotiate agreements that are rigorous and will be ‘credible and stand up down the track’.4 In fact many of the more successful examples of native title working for the benefit of Indigenous people - Burrup, Yandicoogina, heritage arrangements in Qld5 and WA6, the SA state-wide negotiations,7 Comalco - were not achieved through the Commonwealth's regular funding of NTRBs. These outcomes all had to be extensively assisted, and in some cases entirely funded, by the relevant companies and State Governments involved.
The funding and role of third party respondents in the resolution of claims should also be considered in the Claims Resolution Review. While I understand that third party respondent funding is being considered in other processes of the Attorney-General’s Native Title Reform package, its impact on the resolution of claims should also be incorporated in strategies designed to improve the process.
Since the High Court's decisions in Miriuwung Gajerrong,8 Wilson v Anderson9 and Yorta Yorta10, it is clear that the rights of third parties are protected under the NTA. This outcome significantly reduces the need for the third party participation in claims resolution.
Further, there are legitimate concerns that the ongoing participation of third party respondents in native title proceedings may not only cause delays in the process but may also erode the opportunity to reach agreement between the parties. Noel Pearson has commented on this phenomenon:
Experience has shown that if there is a third party that (a) has all of his rights and interests already guaranteed at law – and therefore he can never lose anything, and (b) has all of his costs paid for by the Attorney General of the Commonwealth – then of course these third parties are not going to be amenable to negotiated settlement of claims, and will resist recognition until the cows come home, or the native titleholders have surrendered most of their rights.11
The result of providing financial support to third parties to participate in proceedings in which their interests cannot be affected is to encourage a litigation approach to native title, or, where claims are settled through negotiation, agreements that provide no more than the meagre rights available through the NTA.12 Agreements that provide only the legal minimums that would be available through a litigated outcome, represent a missed opportunity to build a framework for improved economic and social outcomes for native title groups and their communities through recognised rights and interests in land.
However, it is important that third party respondents are supported to participate in native title agreements where there is an opportunity to build co-existing relationships between native title holders and other title holders. Also respondent parties that have a genuine interest in a claim may participate following the resolution of substantive issues between the State and the native title claimants. Such an approach would ensure that there are a fewer parties negotiating on the substantive issues of the claim and assist in progressing the resolution of claims more quickly.
Claims resolution and comprehensive agreement making
Along with strategies to improve the standard and duplication of services between the Federal Court and the NNTT, the Review is required to consider ways to improve the claims resolution process to encourage agreement making. Such an approach presents an opportunity to not only resolve native title claims but to provide for a more comprehensive type of agreement that addresses the co-existing relationship between native title holders and other tenure holders; as well as building a foundation to respond to the social and economic goals of traditional owners. This foundation could range from the recognition of procedural rights for future acts; to the establishment of a stable native title governing body able to respond to a broad range of social and economic issues. The breadth of this foundation would need to be subject to the goals and aspirations of native title holders. In short, comprehensive agreements should be aimed at not only satisfying the requirements of the NTA but also providing native title holders with an opportunity to begin to address their own objectives.
In the Native Title Report 2003 and Native Title Report 2004, a framework for comprehensive native title agreement making that can be used to build the foundation for economic and social outcomes within the native title group is set out. These reports provide five principles that are intended to promote the increased participation of native title claimants/holders in the negotiation of comprehensive agreement making. The principles state that agreements should:
- Respond to the native title group’s goals for economic and social development;
- Provide for the development of the native title group’s capacity to set, implement and achieve their development goals;
- Utilize to the fullest extent possible the existing assets and capacities of the native title group;
- Build relationships between stakeholders;
- Integrate activities at various levels to achieve the development goals of the native title group.
The implementation of these principles relies on building positive relationships between stakeholders; increasing capacity amongst the participants in the native title system; and integrating/coordinating the activities of these groups.
Building positive relationships
The native title system is structured around court processes and the legal requirements of the NTA. Agreement making based on this process and without broader objectives in mind, is likely to result in ongoing adversarial relationships between stakeholders and agreements that only provide the legal minimum available under the NTA.
Such an outcome is unlikely to appeal to those native title stakeholders who are interested in achieving constructive, practical and workable solutions through native title agreements. For these groups, native title agreements will be achieved through strong, cooperative relationships based on a partnership approach, rather than an emphasis on the legal processes of the NTA. That is, if State, Territory and Commonwealth Governments, industry groups and native title claimants wish to achieve workable native title agreements; strong relationships based on shared goals for agreement making need to be established. This is not to suggest that the legal requirements of the NTA be disregarded but rather applied in a way that provides a flexible and cooperative approach to negotiating native title agreements.
To achieve these types of agreements increased capacity throughout the native title system is needed. Improved capacity amongst NTRBs to meet their obligations under the NTA is necessary, as well as the skills to support native title claimants identify and negotiate their goals for the native title agreement. The need for increased NTRB capacity has been identified and supported through an independent report into the professional development needs of NTRB lawyers13 and ATSIC’s Capacity Building Program. Funding for this program finished in 2004-2005 but was continued in the 2005-2006 Commonwealth budget through funding to the Office of Indigenous Policy Coordination for the Native title Performance Enhancement Program. However, these NTRB capacity building programs focus only on improving NTRBs capacity to satisfy the legal requirements of the NTA, rather than developing the additional skills for comprehensive agreement making.
State and Commonwealth governments, NNTT, the Federal Court, as well as industry groups and titleholders also need increased capacity to enable them to not only support and negotiate agreements that address the legal requirements of the NTA but also provide wider opportunities to native title holders. For government departments responsible for native title, this may mean adopting a whole of government approach which could ensure that options for native title agreements also include opportunities available in other government programs. For the NNTT and the Federal Court, increased capacity would need to be focused on improving services under their existing functions. This could be done in consultation with other stakeholders in the system and should also aim to address areas of duplication. The support of the NNTT and the Federal Court in comprehensive agreement making is also crucial. In the case of the NNTT, this could be achieved through section 86F of the NTA which enables the Tribunal to assist in negotiating agreements that involve agreements addressing matters other than native title. Under this section, the Federal Court is also able to adjourn proceedings to allow negotiations to progress. This enables the Court to manage, trial dates in a way that allows time for the negotiation of comprehensive agreements.
The principles for comprehensive agreement making rely on increased participation of the native title group in the negotiation of agreements. As set out in the second principle listed above the agreement making process should provide for the development of native title group’s capacity to set, implement and achieve their own goals. That is, comprehensive agreement making should be a process that develops the native title group’s capacity to understand and manage their native title rights and negotiate on their own behalf. NTRBs are best placed to assist the native title group in developing their capacity and transfer the complex and detailed native title knowledge to the group. However, NTRBs need the skills, resources and the time to undertake this process. NTRBs need increased capacity to enable them to assist the native title group build their own.
The negotiation of comprehensive agreement making occurs within a system of interrelated levels, including the local, regional, State or Territory, national and international levels. The key actors in the native title system, spanning these levels include State, Local and Commonwealth governments, NTRBs, the NNTT and the Federal Court and industry bodies.
If comprehensive agreements are to be reached the various parties cannot be working at cross-purposes. Instead each of the levels would need to provide in-principle support to the negotiation of comprehensive agreements and offer the necessary support within their area of responsibility to ensuring the agreements progress. Without the support of one or more of the participants in the native title process, comprehensive agreements as a mechanism for claims resolution are unlikely to succeed. In this way, the activities and objectives of each of the organisations within the native title system need to be integrated allowing for the negotiation of native title agreements that not only address the legal requirements of the NTA but also provide native title holders with an opportunity to begin to address their own objectives.
 Evidence of E Wensing to the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Official Committee Hansard, 9 November 2000, p26.
 Evidence of B Harvey to the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Official Committee Hansard, 28 March 2003, p 61
 The Queensland Government has provided funding for NTRBs to employ additional staff to deal with future act matters and become involved in capacity building, assisting the native title group to set up their own process for response, such as the issuing of notices and holding of meetings. Assistance from the Queensland government has also been received for authorisation meetings, and for the meetings necessary to negotiate ILUAs and other agreements. These have included aspects of the pilot South-West Petroleum Project and the Regional Forestry Agreement.
 The Western Australian government has recently made funding available to NTRBs for extra Future Act officers in each NTRB region. This initiative was one of the recommendations made by the WA Technical Taskforce on Mineral Tenements and Land Title Applications to expedite the processing of the backlog of mineral tenements applications on land under native title claim: Technical Taskforce on Mineral Tenements and Land Title Applications, Final Report, Government of Western Australia, 2001, p. 19.
 The South Australian Government considers that the SA NTRB, the Aboriginal Legal Rights Movement (ALRM), has received insufficient funding from ATSIS to enable them to negotiate. As a result the South Australian government has provided funds totalling $5.4 million to 30 June 2003, plus an additional $1.5 million for the current financial year. The South Australian government has also provided funding to ensure that the State-wide ILUA process can be sustained. To this end it has provided one-off funding to the Congress of Native Title Management Committees, which provides instructions to the ALRM and has significant involvement in the ALRM’s policy. The future funding of the Management Committees is considered critical by the South Australian government for ensuring that Indigenous people in South Australia have a culturally appropriate vehicle for providing the ALRM with instructions for advancing the negotiation of their native title claims.
 Western Australia & o'rs v Ward & o'rs  HCA 28 (8 August 2002) (Miriuwung Gajerrong).
 Wilson v Anderson and or’s  HCA 29 (8 August 2002) (Wilson v Anderson)
 Members of the Yorta Yorta Aboriginal Community v Victoria & o'rs  HCA 58 (12 December 2002) (Yorta Yorta)
 N Pearson, Where We’ve Come From and Where We’re At with the Opportunity that is Koiki Mabo’s Legacy to Australia, Mabo Lecture, Native Title Representative Bodies Conference, Alice Springs, 3 June 2003.
 For example, in the Torres Strait, the Attorney-General’s funding for respondent parties has allowed the Queensland Seafood Industry Association (QSIA) to be a party to all the land claims, even though it has no interest above the high water mark. QSIA was also represented in the recent Darnley Island case (Erubam Le (Darnley Islanders) 1 v State of Queensland  FCAFC 227, 14 October 2003) in which the question of the effect of public works was litigated, even though it was arguing identical points to those put by the State. This kind of involvement where there are no interests at stake, increases costs, and raises longer term tensions.
 Potok, R., A report into the professional development needs of Native Title Representative Body lawyers, Castan Centre for Human Rights Law, Monash University, 2005
Last updated 21 August, 2006.