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Native Title Report 2011: Chapter 2: Lateral violence in native title: our relationships over lands, territories and resources

Native Title Report 2011

Chapter 2: Lateral violence in native title: our relationships over lands, territories and resources

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2.1 Introduction

A key priority throughout my five year term as Social Justice Commissioner is
to strengthen and rebuild relationships within our Aboriginal and Torres Strait
Islander communities.

As Aboriginal and Torres Strait Islander peoples, we face many challenges and
sadly some of the most divisive and damaging harms come from within our own
communities. Ask any Aboriginal or Torres Strait Islander person and they will
tell you stories of back stabbing, bullying and even physical violence
perpetrated by community members against each other. When we already have so
many of the odds stacked against us, it is tragic to see such destruction
inflicted by our own people.

There is a name for this sort of behaviour: lateral violence. Lateral
violence is often described as ‘internalised colonialism’ and
according to Richard Frankland includes:

[T]he organised, harmful behaviours that we do to each other collectively as
part of an oppressed group: within our families; within our organisations; and
within our communities. When we are consistently oppressed we live with great
fear and great anger and we often turn on those who are closest to
us.[2]

The theory behind lateral violence explains that this behaviour is often the
result of disadvantage, discrimination and oppression, and it arises from
working within a society that is not designed for our way of doing things.

The Native Title Report 2011, in conjunction with the Social
Justice Report 2011
, will start a conversation about lateral violence
and the ways that we, as Aboriginal and Torres Strait Islander peoples, can
create the foundations for strong relationships with each other.

Although lateral violence is a relatively new concept and area of research in
Australia, I have been told by Aboriginal and Torres Strait Islander peoples
across the country that this is a critical issue within our communities. This is
not an easy conversation to have, but it is one that is long overdue.

In drafting this section of the Native Title Report 2011 and the Social Justice Report 2011, I have been concerned about achieving a
balance between what may be seen as the promotion of yet more negative views
about Aboriginal and Torres Strait Islander peoples and the need to address an
issue that has serious implications for us as peoples.

I have had to think long and hard about being open and frank about the damage
that lateral violence does in our communities and question whether I am further
contributing to negative stereotypes of our peoples. While this is a view that
some may possibly take, I believe that the risk of not doing anything about
lateral violence is far greater.

In coming to this view, I’ve been encouraged by the responses I have
received whenever I have raised this issue with Aboriginal and Torres Strait
Islander people. There seems to be considerable agreement within our communities
to confront and deal with lateral violence.

I have also been similarly challenged in how to confront this issue and get
the balance right between painting lateral violence as another problem of a
troubled people and explaining the contemporary system of native title without
apportioning blame – both within and outside our communities.

Addressing lateral violence will require significant courage, goodwill and
determination but I think the gains will be immense. While we continue to harm
each other with lateral violence and while governments and industry operate
within the native title system in a way that creates environments that foster
lateral violence, there will be little progress in improving the indicators
necessary to close the gap between Aboriginal and Torres Strait Islander peoples
and the broader Australian community.

As I have consistently argued since becoming Social Justice Commissioner,
real progress will only come from the basis of strong and respectful
relationships.

There is currently very little research and formal evidence about the
experience of lateral violence in our Aboriginal and Torres Strait Islander
communities. To begin this process, in the Social Justice Report 2011 I
explain the theory underpinning lateral violence that supports the anecdotal
evidence from our communities.

I first spoke about the concept of lateral violence and my concern that the
native title process can affect the level of conflict and abuse within our
communities at the Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS) Native Title Conference held in Brisbane in June
2011.[3]

It is my view that the Native Title Act 1993 (Cth) (Native Title Act),
which codifies a process that can lead to the recognition of our lands, has the
potential to generate positive outcomes for our communities. But too often this
potential is not realised and lateral violence fragments our communities as we
navigate the native title system.

In this Chapter, I continue this conversation by examining how native title
provides a contemporary system for lateral violence to be played out within our
Aboriginal and Torres Strait Islander families, communities and organisations. I
also report on two case studies that demonstrate how Aboriginal and Torres
Strait Islander communities themselves can minimise the impact of lateral
violence in native title: the Quandamooka People’s native title consent
determination on North Stradbroke Island in Queensland; and the Right People
for Country
Project in Victoria.

To further assist my understanding about the relationship between native
title and lateral violence, I wrote to a number of native title stakeholders in
July 2011 to request information about their experiences of lateral violence in
Aboriginal and Torres Strait Islander communities in relation to native title
processes. These stakeholders included:

  • Native Title Representative Bodies (NTRBs)

  • Native Title Service Providers (NTSPs)

  • the National Native Title Tribunal (the Tribunal)

  • the Federal Court of Australia (Federal Court)

  • the Department of Families, Housing, Community Services and Indigenous
    Affairs (FaHCSIA)

  • Attorney-General’s Department.

Initial feedback from many
of these organisations supports my view that lateral violence is occurring
across all regions in Australia and at all stages of the native title
process.[4] Equally, I am encouraged
by the innovative methods that some native title claimants and their
representative organisations are developing to address lateral violence.

(a) What is lateral violence?

Lateral violence is created by experiences of powerlessness, which results in
people within an oppressed group expressing their frustration and anger through
engaging in conflict with each
other.[5] Text Box 2.1 sets out
several descriptions of lateral violence and the ways in which we respond to a
position of powerlessness and oppression.

Text Box 2.1: Lateral violence is:

The ‘expression of anomie and rage against those who are also victims
of vertical violence and entrenched and unequal power
relations’.[6]

A ‘range of damaging behaviours expressed by those of a minority
oppressed group towards others of that group rather than towards the system of
oppression’.[7]

Oppressed group behaviour when an ‘oppressed group is attacked and
has no way of ... getting justice from the person who attacked them, or culture
or institution who attacked them’ feels powerless and takes this out on
each other. So the ‘violence ... or the redress goes sideways instead of
back up the line and [the people in the group] start attacking each
other’.[8]

As I discuss in the Social Justice Report 2011, the concept of lateral
violence has its origins in the literature on colonialism from
Africa[9] and Latin
America,[10] as well as the
literature around the oppression of African
Americans,[11] Jewish
people[12] and
women.[13] According to this
literature, lateral violence is created by situations of power imbalance which
then affects the identity of the people who are colonised. This occurs because
colonisers establish power and control through positioning the people they
colonised as inferior to themselves by devaluing their cultural identity and
dismantling their previous ways of
living.[14]

Theorists such as Paulo
Friere[15] and Frantz
Fannon[16] argue that colonised
groups internalise the values and behaviours of their oppressors, leading to a
negative view of themselves and their culture. This results in low self-esteem
and often the adoption of violent behaviours. This anger and frustration about
the injustices manifests itself in violence, not ‘vertically’
towards the colonisers responsible for the oppression but
‘laterally’ towards their own community.

The overwhelming position of power held by the colonisers, combined with
internalised negative beliefs, fosters the sense that directing violence toward
the colonisers is risky and so it is safer to attack those closest to us rather
than the colonisers. As Richard Frankland explains:

[Lateral violence] comes from being colonised, invaded. It comes from being
told you are worthless and treated as being worthless for a long period of time.
Naturally you don’t want to be at the bottom of the pecking order, so you
turn on your own.[17]

Gregory Phillips describes lateral violence as trying to ‘feel powerful
in a powerless situation’.[18] Acts of lateral violence establish new hierarchies of power within colonised
groups that mimic those of the colonisers. That means that not only are we
dealing with the harm that lateral violence causes individuals, we are also
dealing with the destruction that it causes to the traditional structure and
roles in our societies.

Our history of colonisation in Australia describes a similar story.
Aboriginal and Torres Strait Islander peoples have been living together on our
lands and with the environment for over 70 000 years. We have strong social
structures, sophisticated systems of law, a rich culture and complex ways of
managing our lands. In accordance with our traditional laws and customs,
Aboriginal and Torres Strait Islander peoples had mechanisms to govern not only
our interpersonal relationships, but trade and territorial agreements between
different nations, clans and groups. Men’s and women’s business,
Elders councils and ceremonies regulated all aspects of life and were used to
resolve conflict.

When the British arrived on our lands, rather than respect our rights, laws
and customs, the story of terra nullius was fabricated: Aboriginal and
Torres Strait Islander peoples simply did not exist as fellow humans in the eyes
of our colonisers. However, we did not give up our lands without a fight and
there are many courageous peoples who mounted brave but ultimately unsuccessful
battles for our lands. Similar to other colonised countries, Aboriginal and
Torres Strait Islander peoples found there was no effective way for them to
challenge the power and resources of the colonisers, and this created the
foundation for lateral violence.

This history of colonisation and the resulting dispossession of our lands and
waters has built an imbalance of power between us and non-Indigenous peoples.

For Aboriginal and Torres Strait Islander peoples, the continuing absence of
self-determination means that colonialism is not simply an ‘unjust past
event’ but rather an experience that continues in ‘various
guises’.[19] Gaynor Macdonald
reflects that:

Colonisation ... does not unfold in predictable ways: it is experienced
differently in different times and places; it provides opportunities for some
and suffering for others. Neither is it a universal story: it has had many
different faces, rationales and unfoldings. It is a long, slow, often clumsy and
ill-thought (if thought at all) set of intertwining and contradictory processes
which engage the people involved – coloniser and colonised – over
time in a variety of ways.[20]

By understanding that colonisation is an on-going experience for Aboriginal
and Torres Strait Islander peoples, we are able to recognise that non-Indigenous
peoples continue to control the structures, processes and policies that provide
access to wealth and power. This creates an environment where Aboriginal and
Torres Strait Islander peoples are relatively powerless and lateral violence is
able to thrive.[21]

Text Box 2.2: Lateral violence: different words, different
perspectives?

The term ‘lateral violence’ may be perceived as a form of
physical violence. However, behaviours associated with lateral violence include
gossiping, shaming of others, blaming, backstabbing, family feuding and
attempting to socially isolate
others.[22]

Lateral violence may be described in a native title framework as
‘intra- or inter-Indigenous disputes’. However, I believe that it is
important for Aboriginal and Torres Strait Islander peoples to name this
behaviour themselves and then to be supported to address the issues that
generate lateral violence and to deal with the repercussions of lateral
violence.

Lateral violence can occur in all communities. However, lateral violence is
more acute within Aboriginal and Torres Strait Islander communities because it
occurs as the result of our history of oppression and colonisation.

I acknowledge and agree with the input provided by several NTRBs/NTSPs and
FaHCSIA that observed that disputes and conflict are central to all social
systems. However, as I highlight in Text Box 2.2, lateral violence in our
communities stems from our experiences of powerlessness that come from our
oppression. In addition, the way lateral violence plays out in our families and
communities creates a very different dimension to ‘conflict’ and
‘disputes’ because of the close community and kinship ties that
exist in Aboriginal and Torres Strait Islander communities.

(b) Why is lateral violence associated with native
title?

The relationship between lateral violence and native title has been broadly
recognised.[23] I want to emphasise,
however, that native title in and of itself does not necessarily cause lateral
violence. Nor is native title the only forum within which lateral violence
occurs for Aboriginal and Torres Strait Islander peoples. Rather, lateral
violence is created by experiences of power and oppression, and can manifest in
many different community and family situations. In this section, I explain how
this experience of power and oppression plays out in native title.

Lateral violence occurs in native title because the non-Indigenous process
imposed by government reinforces their position of power and reignites questions
about our identity. Concepts of power and identity are aggravated in native
title because of the inherent contradiction between past government policies in
Australia that removed our peoples from our
country[24] and the current
requirement under the Native Title Act for us to prove continuing connection to
our lands and waters since the arrival of the British. For many of us,
‘native title is absolutely a political (as well as cultural,
economic and social) issue not just a legal one, and one that lies at the core
of relations between [us] and the wider Australian society’ (emphasis in
original).[25]

Native title can reinforce the imbalance of power between non-Indigenous
peoples and Aboriginal and Torres Strait Islander peoples as well as positions
of authority within our communities. For government and industry, the native
title process can be used to affirm their control, access to and use of lands
and resources. Within our communities, native title can be used to promote
positions of authority as we deal with our history of powerlessness and
oppression, and questions about our identity.

Richard Frankland, Muriel Bamblett, Peter Lewis and Robin Trotter describe
the experience of native title in Victoria in the following words:

In the mid 1990s came some of the real fuel to the flame of internal
conflict, the issue of Native Title. The uncertainty of the direction of the law
itself created disharmony. At first everyone I spoke to in Victoria was excited:
it wasn’t land rights but it was a chance for some recognition of
ownership. What began with hope soon began to become a tool which fractured our
tribes and communities in a way not seen before. Siblings, cousins, Uncles,
Aunties – families began to be driven apart from each other. In some cases
they would not even talk to each
other.[26]

(i) Relationships of power within native
title

The High Court decision on native title (the Mabo decision[27]) recognised our
connection to our lands and waters by creating a unique form of land tenure that
attempts to intersect our traditional laws and customs and Australian common law
and legislation.[28] Nonetheless, as
Tony McAvoy and Valerie Cooms observe from their experience with native title in
southern Queensland, the Native Title Act ‘continues to force Indigenous
people to fit their own concepts of land tenure into an imposed non-Indigenous
conceptualisation of what their societies and traditional laws and customs
should be.’[29]

The resolution of native title involves multiple groups with various
interests in land and water. David Ritter notes that this includes complicated
‘questions of governance and law associated with Indigenous affairs,
planning, infrastructure, land, water, mining, agriculture, fishing, heritage,
judicial administration and so
on’.[30] Furthermore, within
our communities, the

multiple layers of relationships and connections to country are demanding
realities of the native title process [in areas] where removals were so
pervasive. They challenge anthropological interpretations, give rise to
conflict, and raise many problems ... in dealing with what can be highly
emotionally charged issues for [native title]
claimants.[31]

Within this context of non-Indigenous land tenure and multi-layered interests
in land, the Native Title Act places the onus on us to prove a continuing
relationship with our country rather than requiring government (or other groups
that assert interests in the claimed area) to disprove the native title claim.
As I note in Chapter 1, concerns about this requirement have been recognised at
the international level by the Committee on the Elimination of Racial
Discrimination, which stated in September 2010:

Reiterating in full its concern about the Native Title Act 1993 and its
amendments, the Committee regrets the persisting high standards of proof
required for recognition of the relationship between Indigenous peoples and
their traditional lands, and the fact that despite a large investment of time
and resources by Indigenous peoples, many are unable to obtain recognition of
their relationship to land (art.
5).[32]

It is also my view that this approach to resolving native title is
inconsistent with the Preamble to the Native Title Act, which states that the
intent of the legislation is to

rectify the consequences of the past injustices ... to ensure that Aboriginal
peoples and Torres Strait Islanders receive the full recognition and status
within the Australian nation to which history, their prior rights and interests,
and their rich and diverse culture, fully entitle them to aspire.

For many of us, the frustratingly complex and resource intensive experience
to prove our native title has reinforced our feelings of being dispossessed of
our lands and disempowered by non-Indigenous structures, processes and policies.
Within this environment, we engage in lateral violence to try and reclaim
authority in this cycle of oppression and denial of our rights in our lands.

Frankland, Bamblett, Lewis and Trotter in their Report, This is
‘Forever Business: A Framework for Maintaining and Restoring Cultural
Safety in Aboriginal Victoria
, quote a Koorie worker as stating:

I think partly it’s the way institutions, governments and others
structure things, I mean look at the way Native Title for example is, has
contributed to the conflict. It has encouraged people to go within themselves
more and look for difference, as opposed to
connection.[33]

(ii) Using identity as a weapon of lateral violence
in native title
[34]

Identity and in particular, notions of ‘authenticity’ and
‘legitimacy’ have become powerful weapons in lateral violence.

An AIATSIS Research Discussion paper by Scott Gorringe, Joe Ross and Cressida
Fforde based on a workshop with Aboriginal and Torres Strait Islander
participants elaborates on the link between lateral violence and identity, with
one participant stating:

Lateral violence comes from identity problems. Identity is the sleeper. If
you have a strong spirit all the rest of you is supported. When we don’t
know who we are, something else jumps in to take that
place.[35]

Identity for Aboriginal and Torres Strait Islander people in the context of
native title is multifaceted; it does not simply involve answering a question
about our name and place and date of birth. Rather, native title requires us to
confront our identity and family history by answering questions about who we
are, where we and our ancestors are from, what country we can and/or can’t
speak for, and what potential benefits we may access.

These questions about our identity may be further complicated in places
where:

  • we have been removed from our country by past government policies

  • there are overlapping native title claims or disputes about boundaries

  • there are several layers of land rights and/or cultural heritage
    legislation

  • there are mining or other activities that affect land tenure and/or provide
    financial or other benefits to the native title claim
    group.[36]

Native title
challenges our notion of identity as Aboriginal and Torres Strait Islander
peoples on two dimensions. First, native title questions our relationship to our
lands by making us prove where we are from, despite the history of colonialism
that has taken many of us from our country. And second, native title tests our
relationships with each other by questioning who we are related to, although
many of us have been removed from our families. Again, the responsibility and
burden to provide this information is placed on us as Aboriginal and Torres
Strait Islander peoples despite state governments holding our families’
historical records.

This requirement to justify and explain our identity threatens our connection
to our country – the foundation of our social, economic, cultural and
spiritual life. It also creates the opportunity to generate new elements of
authority and legitimacy within our communities, as some of us participate in
lateral violent behaviours such as gossiping about whether a person or family in
our community is Aboriginal and/or Torres Strait Islander ‘enough’.

By pulling other people in our community down in this way, we assert our own
position of authority within the native title system ‘because I’m
more Aboriginal than you’. This is how we use identity as a weapon of
lateral violence;[37] we raise
doubts about the identity and authenticity of other people to gain authority and
legitimacy within our community.

As I mentioned earlier, there is an inherent conflict between the need to
prove that our laws and customs remain relatively unchanged, and the need for
our culture to have adapted to survive the experience of colonialism over the
past two centuries.[38] This
requirement for us to adapt to the experience of colonialism has reshaped our
identity and this also is used as a weapon for lateral violence.

I discuss some of the ways in which the interaction between power, identity
and lateral violence can play out in the native title process in the following
section.

2.2 How does the native title process contribute to
lateral violence?

At the outset of this discussion, I want to distinguish between native title,
which recognises our rights and interests in our lands, and the native title
process that is enacted in the Native Title Act. Native title itself provides
immense benefits to Aboriginal and Torres Strait Islander peoples; it is the process that we need to follow to prove our native title that provides
opportunities for lateral violence.

Diagram 2.1: The process of a native title claimant
application[39]

Diagram 2.1 The process of a native title claimant application

The process to recognise native title for Aboriginal and Torres Strait
Islander peoples as set out in the Native Title Act is shown in Diagram 2.1.
Although each of the stages in this process can generate lateral violence
through provoking questions about power and identity, I focus only on the
following stages of the native title process to highlight ways that lateral
violence can occur:

  • completing a native title claimant application to lodge in the Federal
    Court[40]

  • mediating a native title claim

  • establishing a Prescribed Body Corporate
    (PBC).[41]

I also
consider how the process of negotiating Indigenous Land Use Agreements (ILUAs)
and alternate land processes, such as state and territory land rights and
cultural heritage legislation, can contribute to lateral violence within
Aboriginal and Torres Strait Islander communities.

It is important to understand that while this Report is mainly looking at
lateral violence within our families and communities, there are also many
players who operate in the native title system in ways that can enable lateral
violence. Government, industry and organisations set up to assist the native
title process can – often unknowingly – perpetuate our experiences
of power imbalance and identity conflict.

For example, McAvoy and Cooms describe the fixed policy position of the
Queensland government in resolving native title in southern Queensland in
2005–2008 in the following way:

The immovable pillar in the whirlpool of law and policy which describes
native title in southern Queensland has been the position of the State of
Queensland. ... [T]he Queensland Government would not give priority to
resourcing applications that are the subject of overlaps, thus giving it
substantial control over the matters in which it would engage in substantive
negotiation.[42]

As the representative organisations for Aboriginal and Torres Strait Islander
peoples, NTRBs/NTSPs need to negotiate the interests of native title claim
groups, government, industry and the Federal Court. This negotiation process can
be complicated by the funding arrangements for
NTRBs/NTSPs.[43] NTRBs/NTSPs can
also ‘be required to faithfully represent conflicting interests’
within our communities as they have the role to legally represent native title
holders and also the conflicting role to be gatekeepers of aspiring
claimants.[44]

Larissa Behrendt and Loretta Kelly, in their study of conflict created by
native title, talk about the fundamental conflict that is at ‘the heart of
the relationship between a NTRB and a claimant group. The NTRB is the representative of its client (the claimant group), yet it also finances its client’ (emphasis in
original).[45] This conflict can
lead to disputes between NTRBs and native title claim groups.

The requirement for native title claim groups to interact with a wide range
of stakeholders with different interests (including government, industry, the
Federal Court, the Tribunal and native title organisations who each have
particular statutory functions, policy positions and funding arrangements)
creates a complex web of relationships that make it feel like it’s
‘us against the world’. This large number of interests that need to
be satisfied can further undermine our capacity to assert our authority in the
native title process.

(a) Completing a native title claimant
application

Prior to lodging a native title claimant application in the Federal Court, a
claim group seeking native title must collate information to complete an
application including:[46]

  • a description of the native title claim group
  • the boundaries of the claimed lands and waters
  • a list of claimed native title rights and interests, which are
    ‘readily identifiable’ and can be established prima facie by
    members of the claim group
  • the factual basis upon which the native title claim group has a connection
    to the claim area that has continued since sovereignty
  • the ability to demonstrate an on-going connection with the claim area by
    members of the claim group.

Members of the native title claim group
also must authorise the applicant to make the native title determination
application and ‘to deal with matters arising in relation to it’ on
behalf of the group.[47] This
involves the claim group agreeing on and applying a decision making process,
either in accordance with their traditional laws and customs or by an agreed and
adopted process.[48]

The information in the application must be sufficient to meet the
requirements of the registration test, which is explained in Text Box 2.3.

Text Box 2.3: The registration test

Registration of native title claimant applications is an administrative
decision-making function undertaken by the Registrar of the Tribunal. The
decision to accept an application on the Register of Native Title Claims (RNTC)
depends on whether the application satisfies all of the conditions set out in
sections 190B and 190C of the Native Title Act. This process is referred to as
the ‘registration test’. The registration of an application on the
RNTC confers statutory benefits for the native title claim group including a
right to negotiate about proposed future activity on the claim
area.[49]

If the native title claimant application does not meet the conditions of
the registration test, the applicant may seek either a reconsideration of the
claim by the Tribunal or a review of the decision by the Federal
Court.[50]

Aboriginal and Torres Strait Islander peoples view the registration test as
a non-Indigenous process that tests the legitimacy of our native title claim,
our culture and our identity. This can play out in our communities in the
following ways:

  • A native title claimant application that does not meet the conditions of the
    registration test creates an opportunity for non-Indigenous people and other
    community groups to question the legitimacy of the native title claim
    group.

  • In areas of future act activity, a registered claim provides a legitimate
    position to negotiate potential benefits with industry/mining companies etc.

Either of these scenarios can build divisions within our
communities that promote lateral violence.

I am aware that the level of information required for a native title claim
group to meet the conditions of the registration test means that a claim group
needs access to legal advice and anthropological/historical
research.[51]

For Aboriginal and Torres Strait Islander peoples, the requirement to gather
this information and to complete the application can be highly stressful. Yet,
if we want to have our native title application registered, we must describe our
relationships to each other and our connection to our lands in a way that meets
the requirements of the registration test.

In order to provide this information in the appropriate legal format and
navigate the unfamiliar system, we need other people such as lawyers,
anthropologists and historians to help us. It is scarcely surprising, then, that
the process of completing a native title claimant application can make us feel
even more oppressed and dispossessed of our land and our identity.

Some of the issues that may contribute to lateral violence within our
communities when we complete a native title claimant application are:

  • agreeing on the membership of the native title claim group

  • deciding who will be the applicant

  • determining the boundaries of the claim
    area.[52]

Addressing
these issues produces positions of authority and inquiries about identity within
our communities that can escalate latent conflict, as described in Text Box 2.4,
into a cycle of lateral violence.

Text Box 2.4: Latent conflict is:

The antecedents of conflict behaviour that can trigger fights when the
right conditions occur.[53] Examples
of latent conflict include intra- and inter-family disputes; economic disparity;
and cultural issues, which can include historical and contemporary issues for
Aboriginal and Torres Strait Islander
peoples.[54]

Native title provides a platform for latent conflict to develop into lateral
violence because completing a native title claimant application requires
families, communities and organisations to meet to decide fundamental questions
about their identity and where they fit within the native title claim group. As
I show in Diagram 2.2, these issues of power and questions about identity feed
into the cycle of latent conflict and lateral violence.

Diagram 2.2: The cycle of latent conflict and lateral violence

Diagram 2.2: The cycle of latent conflict and lateral violence

 Native title requires individuals and families to meet to describe their
connection to country, identify their ancestors and decide the applicant; these
meetings provide a forum which can add ‘fuel to the fire’ in
communities where feuds between individuals and families are already a source of
conflict.[55] Each of these issues
can create and contribute to positions of power within our communities and in
this way, provide a catalyst for lateral violence.

(i) Who is in the native title claim group?

The question of who is and who is not included in a native title claim group
can raise fundamental questions about our identity in relation to our family
histories. This can be extremely confronting, hurtful and emotional;
particularly in situations where we have been removed from our lands, taken from
our families and/or are relying on stories told by our deceased parents and
grandparents.[56] It can also
generate positions of authority and legitimacy within our communities based on
whether a person or family is accepted as part of the native title claim group.

The potential consequences that can flow to our communities because of the
way a native title claim group is described are outlined in Text Box 2.5.

Text Box 2.5: Membership of the native title claim group

A native title claim group can be described in a native title claimant
application either by naming all the persons who are in the claim group or by
describing the persons who are in the claim
group.[57] A common way to describe
a native title claim group is by reference to named apical
ancestors[58] from whom members of
the claim group are
descended.[59]

Describing a native title claim group as descendants of named ancestors can
have the following consequences for our communities:

  • The decision about who are the apical ancestors may be agreed by members of
    our communities. However, it is common for apical ancestors to be identified by
    research undertaken by anthropologists and historians; especially where there is
    dispute within our communities over family histories. This can take ownership of
    who belongs in our claim group away from us. As a result, many of us may feel
    further disempowered by the native title process as our notions of family are
    challenged.

  • Describing our relationship to an apical ancestor may force us to choose
    only one side of our family, such as only our mother or grandmother or father or
    grandfather. If we seek to have our relationships to more than one ancestor
    recognised and be part of more than one native title claim group, we may be
    accused of ‘claiming’. When we choose to identify as a member of
    only one claim group, we potentially forfeit our relationships to our other
    ancestors and our rights to their country. This situation can create divisions
    within our families when siblings choose to identify with different ancestors
    for the purposes of native title.

Our acceptance or denial into a native title claim group not only impacts on
our identity but also can flow on to other areas of our lives. For example, if a
person is included as a member of a native title claim group, they may be
considered a legitimate person to speak for country, cultural heritage and
native title. Conversely, in situations where an individual or family is denied
membership to a native title claim group, other members of the community and
non-Indigenous peoples may question whether they are legitimate Aboriginal
and/or Torres Strait Islander peoples; their capacity to undertake cultural
heritage work; their right to conduct ‘welcome to country’
ceremonies; and/or their ability to access training and employment opportunities
designated for Aboriginal and Torres Strait Islander peoples.

Contending with these issues around our identity can be extremely divisive
for our communities; we use tactics such as bullying, fighting, gossiping and
intimidation to assert authority within our native title claim group and to
ensure we have access to any benefits that flow from membership in the claim
group.

Several NTRBs/NTSPs observed that questions about people’s family and
status to speak as a traditional owner for their country was a common dispute
that tended to escalate lateral violence.

For example, the South West Aboriginal Land and Sea Council wrote:

Native title has often been discussed in terms of breaking up families
rather than bringing them together. There is a tendency among some members of
the community who believe they must block out certain members or entire families
who seek to assert connection to a claim area whether or not that connection can
be proved. This tendency leads to a display of lateral violence in all its
forms.

We have experienced examples of lateral violence that include both
nonverbal innuendos through to physical altercations. These behaviours are
exhibited in public forums when we hold meetings to explain various native title
related processes. On occasion, we are spectators to lateral violence which is a
debilitating experience both from our viewpoint and that of the claimants and
especially so for the person or persons to whom it is
directed.[60]

(ii) Who is the applicant and how can they
contribute to lateral violence?

The role of the applicant is described in Text Box 2.6. The person or people
who are the applicant usually assume a leadership role within the native title
claim group. As such, the applicant can build the cohesion of the claim group
through including members and enabling them to participate in decision-making.
Alternatively, the applicant can create the opposite outcome, either through
engaging in lateral violence behaviours or by responding to lateral violence
from the native title claim group.

Text Box 2.6: The applicant

The applicant in a native title claim can be either a single person or a
number of people who are members of the native title claim group. The applicant
must be authorised by the native title claim group to make the application and
‘deal with matters arising in relation to it’ on behalf of the claim
group.[61]

McAvoy and Cooms outline three broad descriptions of people who are the
applicant (these are objective generalisations and not a value-laden appraisal)
and observe that the applicant is most productive when representatives from each
group below are included:

  1. Older people who have had limited formal education and little or no
    involvement in Aboriginal organisations but who are appointed as the applicant
    out of respect for their seniority and/or knowledge of law.

  2. People who may have limited formal education but who have been exposed to a
    range of community politics that equips them to get the most out of the native
    title processes. This group can be subdivided into those who work with native
    title processes to access benefits, and those who try to stifle native title
    processes.

  3. Younger people who have a good level of formal education and see that
    collaboration and negotiation is the most effective and efficient way to
    progress their native title claim. This group is often combative but also
    progressive and not
    obstructionist.[62]

I believe that the applicant can play a key leadership role in creating a
cohesive community and unified native title claim group. Tony McAvoy and Valerie
Cooms observe the benefits of the applicant including people with diverse
backgrounds and skills because their ability to ‘function consistently as
an effective decision-making group’ is essential to effectively negotiate
the native title process.[63] The
applicant can also use their authority to make decisions that positively
influence how our communities deal with native title. For example, I am aware of
instances where the applicant made a considered decision to include particular
families in a claim group to reduce the likelihood of their community becoming
divided between ‘those within’ and ‘those outside’ the
claim group.

Consistent, transparent and inclusive decision-making by the applicant can
minimise the potential for lateral violence within the native title process. In
contrast, if a person who is the applicant (and/or their family) is perceived to
be unfairly benefiting from their role or excluding individuals/families from
the native title process, then this can create divisions between the persons who
are the applicant and/or the applicant and the native title claim group, and
instigate lateral violence within the community.

Divisions between the persons who are the applicant can also play out in the
process of registering an ILUA. The recent decision by Justice Reeves in the
Federal Court, QGC Pty Ltd v Bygrave (No
2)
[64] reinterprets the role of
the applicant as a party to an ILUA (area agreement): see Text Box 2.7. While
the intent of this decision may have been to clarify particular requirements for
persons who are the applicant in relation to ILUAs (area agreements), it also
has implications in terms of lateral violence in our communities. Disagreement
about an ILUA between the persons who are the applicant may not prevent the
registration of an ILUA (area agreement), but as I discuss later in the section
on negotiating ILUAs, these divisions are likely to reflect a broader dispute
within the native title claim group.

Text Box 2.7: QGC Pty Ltd v Bygrave (No 2)

In QGC Pty Ltd v Bygrave (No 2), Justice Reeves considered the
implications on the registration of an ILUA (area agreement) when one of the
persons who comprise the applicant refuses to sign an agreement.

His Honour found that:

  • The Registered Native Title Claimant (RNTC) must be a party to the
    ILUA.

  • This could be achieved by naming one or more of those whose names and
    addresses appear on the Register of Native Title Claims as the applicant.

  • Those so named do not need to assent to, or sign, or consent to becoming a
    party to, the
    agreement.[65]

This
means that there is no obligation for the applicant to act collectively as a
mandatory party to an ILUA[66] and
there is no requirement for any of the parties to sign an
ILUA.[67]

Prior to this decision, the Registrar of the Tribunal had interpreted s
24CD of the Native Title Act to mean that the RNTC is all the persons who
comprise the applicant. The RNTC must be a party to an ILUA and so all persons
who are the applicant need to sign an ILUA.

Justice Reeves argued that this approach would allow an individual person
to frustrate or veto the making of an
ILUA.[68] However, the
Tribunal’s view is that s 66B(2) of the Native Title Act enables the
removal of a person as a member of the applicant/RNTC if they are acting outside
of their authority in an ILUA
context.[69]

(iii) Defining the boundaries of the native title
claim area

The Native Title Act requires a native title application to identify
the lands and waters subject to the native title
claim.[70] There are several
complexities for Aboriginal and Torres Strait Islander peoples in describing the
boundaries to our lands and waters.

The first is that native title requires us to describe our country in terms
of non-Indigenous boundaries, a process that resembles us trying to fit a square
peg into a round hole! Again, the onus is on us to adapt the way we define our
traditional country into terminology that is acceptable to the legal native
title construct. This can create fights in our communities as we are forced to
put unambiguous contemporary boundaries around our lands and waters that do not
(and cannot) represent the complex cultural ways that we can look after, inherit
and occupy country. It can also start arguments about who is allowed to speak
for particular places on country and these artificial boundaries can divide
families. As many of us do not permanently live on our
country,[71] this conflict tends to
play out between those who live on and care for country and those who do
not.

Behrendt and Kelly, in their study of native title creating conflict,
describe fighting over boundaries as follows:

The oral history of the claimants may state that a particular line marks
the correct boundary between it and the neighbouring clan or nation. This may be
inconsistent with the determination of the anthropologist using other sources.
There may also be differing views within the one claimant group as to the
boundary line.[72]

The second difficulty in identifying the boundaries to our native title claim
is the need to negotiate shared country, which can create conflict between
neighbouring or overlapping native title claim groups. Kevin Smith, the CEO of
Queensland South Native Title Services (QSNTS) observes that competing against
each other to have our native title recognised is emotional and this is
expressed through intra and inter-Indigenous disputes which can result in
lateral violence.[73]

This experience is heightened in areas such as southern Queensland where the
history of colonisation and dispossession of land has been particularly harsh
for Aboriginal peoples.[74] This has
produced a native title landscape where, in mid-2004, 29 of the 30 native title
claims in the region were wholly or partially subject to overlap with at least
one other claim.[75] In Chapter 4, I
discuss the process undertaken by QSNTS to implement a Legal Services Strategic
Plan to reduce these overlaps in 2005–2008.

In summary, the process to complete a native title claimant application can
contribute to lateral violence in our communities because we are required to
adapt our identity, relationships and notions of land and culture into the
non-Indigenous construct of native title. This aggravates our feelings of
disempowerment and dispossession, and challenges to our identities and our
connection to country become weapons of lateral violence that we can use against
each other.

I note that lateral violence created by these issues may be addressed at this
stage of the native title claim process or remain unresolved. The implications
of not resolving these matters are discussed in the following section on
mediating a native title claim.

(b) Mediating a native title claim

A native title application on the Register of Native Title Claims must be
referred for mediation by the Federal
Court.[76] The purpose of mediation
under the Native Title Act is set out in Text Box 2.8.

Text Box 2.8: The purpose of mediation

The purpose of mediation is to assist parties to the claim to reach
agreement on the existence of native title in relation to the claim area and to
decide, for example:

  • who holds or held the native title

  • the nature and extent and manner of exercise of the native title rights and
    interests

  • the nature and extent of any other
    interests.[77]

Mediation
can also provide a forum to discuss issues arising from latent conflict.

In this section, I consider two aspects of lateral violence within the
mediation of a native title claim. The first is how does mediating a native
title claim contribute to lateral violence within our families and communities?
And the second aspect is how can lateral violence delay the resolution of native
title claims?

(i) How does mediating a native title claim
contribute to lateral violence?

Mediating our native title claim can contribute to lateral violence when our
expectations about what can be achieved by native title are not realised. There
are several aspects to this:

  • the number of and varied interests in land that we need to negotiate

  • the precedence of non-Indigenous interests over our interests

  • both our expectations and the expectations of non-Indigenous/government
    parties about what can be achieved through the mediation of the native title
    claim

  • mediation provides the opportunity to bring people together at meetings,
    which creates the space for latent conflict (both for ourselves and
    non-Indigenous groups/government/industry) to become lateral violence

  • the complexity of negotiating within the legal native title framework and
    the timelines of the Federal Court.

Mediating a native title claim can be the forum where
the ‘valve’ of the ‘pressure cooker’ is released in our
communities as we work through these issues.

In the
more settled areas of Australia, native title usually acknowledges only
non-exclusive rights and interests in land. This means that mediating our native
title claim involves negotiating with a substantial number of groups who also
assert an interest in the claim area. These groups can include:

  • state, federal and local governments

  • Aboriginal and Torres Strait Islander respondents

  • pastoralists

  • mining companies

  • telecommunications, electricity and water authorities

  • fishing associations and beekeeping associations.

Clearly, the
interests and activities undertaken on the claim area by these groups are
diverse. For example, beekeepers are likely to have minimal impact on a native
title claim area in comparison to open-cut mining activity that can devastate
our land. These groups also have different levels of ‘power’ at the
mediation table. For example, a claim area that is subject to exploration and
mining licenses is highly valued by both the mining industry and governments,
who may combine their interests in applying pressure on us during the mediation
of a native title claim.

Despite these diverse activities and unequal interests in a claim area, often
all of these external stakeholders have an equal opportunity to participate in
mediating our native title
claim.[78] It is easy in these
situations for our interests to be suppressed by the many other groups whose
interests take precedence over native title interests in the claim area. Again,
we are consigned to a position of powerlessness in mediating our native title
claim. To deal with our powerlessness, we enact lateral violence.

As I have argued throughout this Chapter, native title is a non-Indigenous
structure that does not reflect our way of doing things. While we have a seat at
the negotiation table, the process of mediating our native title claim simply
reinforces that we are operating in a framework that makes us feel powerless.
Our capacity to effectively participate in mediation is further exacerbated by
the requirement for us to understand technical legal language and follow
complicated rules and processes set out in the Native Title Act. Many of the
people who assist us to manage our native title mediation are non-Indigenous,
including a significant number of native title lawyers, anthropologists and
mediators. As much of our authority is expressed through or facilitated by the
lawyers, anthropologists and mediators, these processes can reinforce feelings
of oppression and result in lateral violence within our families and
communities.

Kevin Smith notes that particularly since the demise of the Aboriginal and
Torres Strait Islander Commission (ATSIC) in 2004, the absence of dedicated
structures and programmes designed to address family, community, health and
education issues means that these issues are now regularly raised in native
title community meetings. Discussions around these underlying issues invariably
compound the already complex and sensitive native title dialogue within our
communities. Native title becomes both the space and focus for the outlet of
frustrations concerning these broader
issues.[79]

Several other NTRBs/NTSPs also observed that native title mediation meetings
can be taken over by unresolved community (and government)
issues.[80] Initially, this can be
because native title meetings provide the only forum for these issues to be
discussed. As mediation progresses, however, these ‘non-native
title’ issues can become part of the ‘package’ that is
negotiated as part of the resolution of the native title claim. Addressing these
issues can be an important part of rebuilding trust with other parties –
including government – but can also cause anxiety in our communities when
the mediation process drags on for a long time or when the broader community
feels excluded from making decisions about issues that may also affect them.

Governments also have expectations about what native title can achieve for
Aboriginal and Torres Strait Islander peoples. I agree with and commend the
Attorney-General’s aim that native title should provide ‘practical
benefits’ and be an ‘avenue of economic
development’.[81] But this can
lead to native title being used to resolve all socio-economic issues
affecting our communities, particularly where the benefits are basic citizenship
and human rights that we should be receiving without having to negotiate these
rights. As I discuss in the following section on establishing PBCs, when
expectations by governments and ourselves are not realised by our determination
of native title, this creates yet another layer of frustration. For many of us,
it is another reason to blame each other.

The case management of our native title claims within the Federal Court can
also contribute to pressures put on us. As I report in Chapter 1, some native
title representative bodies have welcomed the effective management and
resolution of claims by the Federal Court since the Native Title (Amendment)
Act
in 2009, and others have remarked that the process to resolve claims has
remained largely unchanged. However, Kevin Smith has raised concerns that the
‘new Federal Court approach has placed another layer of complexity upon an
already burdensome workload’ in
Queensland.[82] This includes
setting designated timeframes for the resolution of native title claims with an
indicative timeframe of ten years to resolve all 120 existing claims in the
Queensland system and five years for new
claims.[83]

While I commend the faster resolution of native title claims, I am concerned
about the burden that is being placed on our communities and NTRBs/NTSPs, and
the conflict that can result from this level of pressure. I am also troubled by
the financial and emotional cost to the members of claim groups in terms of
attending mediation meetings. For instance, prior to the Quandamooka native
title consent determination there were more than 60 mediation conferences
convened under the Native Title Act over a period of 18
months.[84] This was in addition to
the parties meeting separately to resolve specific
issues.[85]

The level of commitment to mediating a native title claim is particularly
onerous and challenging on claim group members who, in addition to attending
meetings, also maintain full-time employment and have other family/community
responsibilities. In most cases, claim group members are the only people not
paid to participate in the mediation process and so need to take leave from
their regular employment to mediate their native title claim. Clearly, this can
be stressful and financially draining on our families and communities.

The difficulties of mediating our native title with different interest groups
in an unfamiliar process inevitably contribute to positions of power and
questions about identity that then fuels lateral violence in our
communities.

I now discuss how lateral violence can delay us in resolving our native
title.

(ii) How does lateral violence delay the resolution
of native title claims?

The 11 native title claims determined between 1 July 2010 and 30 June 2011
spent a minimum of four years and a maximum of 12 years in
mediation.[86] I share the view of
my predecessor, Tom Calma, who observed in the 2007 Native Title Report, that the ‘the design of the [native title] system, the way it
operates, and the processes established under it’ delays the resolution of
native title claims.[87] However, I
also believe that lateral violence can contribute to delaying native title
determinations.

Lateral violence can interrupt the mediation of our native title because our
internal disputes get so bad that we cannot have meetings to constructively
discuss the issues we need to mediate. Many people across the country have told
me that they no longer participate in native title meetings because of the
quarrels, arguments and fights that occur at these meetings. So, although we
want to have our native title recognised, many of us feel that we cannot safely
participate in the mediation of our claims and witness the destructive force of
lateral violence within our communities.

Internal disputes about decision-making and communication can also be played
out in a more formal way through mechanisms set out in the Native Title Act. For
example, if a native title claim group believes that the applicant is not
representing their views and interests, then they may seek to remove and change
the applicant in accordance with the Native Title
Act.[88] This process requires the
claim group to set out the reasons to remove the current applicant, authorise
the new applicant and seek an order from the Federal Court to change the
applicant. To comply with the Native Title Act, the claim group requires legal
assistance and the approval of the Federal Court – this provides a forum
for us to enact lateral violence in an ‘official’ legal environment
and defer the mediation of our native title claim.

(c) Establishing a Prescribed Body Corporate
(PBC)

Following a positive determination of native title, a native title holding
group must establish a PBC to manage their native title rights and
interests.[89] A brief overview of
the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI
Act) that governs PBCs is set out in Text Box 2.9.

Text Box 2.9: Corporations (Aboriginal and Torres Strait Islander)
Act 2006

Corporations holding or managing native title under the Native Title Act
and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC
Regulations) must be incorporated under the CATSI
Act.[90]

The CATSI Act has particular requirements such as a majority of corporation
members and directors need to be Indigenous and the corporation’s
constitution must meet minimum standards of governance. Under the CATSI Act, the
Office of the Registrar for Indigenous Corporations (ORIC) can provide
assistance to corporations about issues such as the registration, rules of a
corporation, dispute resolution, and undertaking research and policy
proposals.[91]

Corporations registering under the CATSI Act may have the following
features:

  • the members can choose not to be liable for the debts of the corporation

  • the rules of the corporation can take into account Aboriginal or Torres
    Strait Islander customs and traditions

  • Aboriginal and Torres Strait Islander corporations can operate nationally

  • it is free to register as an Aboriginal and Torres Strait Islander
    corporation

  • sometimes the Registrar may exempt corporations from lodging annual reports

  • profits of the corporation can be distributed to members if the rules allow
    this

  • Aboriginal and Torres Strait Islander corporations can get assistance and
    support from
    ORIC.[92]

As a PBC is the legal organisation through which the native title group talks
to people who want to access the determined native title area, it needs to be
able to make decisions about matters such as planning, administration and
dispute management.

Recent research conducted by the Office of the Registrar of Indigenous
Corporations (ORIC) found that internal disputes constitute the third most
prevalent ‘class’ of failure within Indigenous
corporations.[93] Text Box 2.10 is a
snapshot of case studies drawn from the research that show how conflict can
cause corporate failure.

Text Box 2.10: Indigenous Corporate Failure Report

ORIC examined 93 cases of Indigenous corporate failure. The following case
studies are examples of how internal conflict has contributed to the failure of
the corporation.

Case Study 10

A review of case study 10 revealed a totally crippled Indigenous
corporation:

  • Members of the Governing Committee can no longer meet in the same room.

  • The manager has usurped the power of the Committee but is not capable of
    satisfactorily managing the corporation’s affairs.

  • A group of four members of the Committee who have a majority have been
    ostracised by the manager, who refuses to deal with them and has banned them
    from the office.

  • Two Committee members have been supported by the manager and they have
    attempted to create a Committee by invalidly ‘appointing’ further
    members and subsequently passing resolutions noting that the four excluded
    members are no longer on the Committee.

Case Study 18

A review of case study 18 showed an organisation that was in turmoil
because of divisive elements within the community:

  • There are two factions each claiming to represent the Governing
    Committee.

  • There is little possibility of these two groups reconciling their
    differences and working together for the good of the organisation.

  • The office of the organisation has been closed by one of the factions and
    the affairs of the organisation are effectively in limbo.

Case
Study 20

A review of case study 20 found a break down within the corporation that
has led to paralysis:

  • There are two groups claiming to be the legitimate Governing Committee.

  • The dispute has become protracted involving solicitors and the police and
    there is little likelihood of the dispute being resolved at a local level.

  • It appears that neither current Committee has a legitimate claim to manage
    the corporations affairs.

  • It is considered that acknowledgement of one Committee over the other will
    open the gates to legal challenges by the other Committee, the outcome of which
    may only be resolved in a court of law.

Case Study 22

A review of case study 22 found the corporation’s failure is
associated with disputes within the community :

  • There has been a complete communication breakdown within the Aboriginal
    community that has resulted in a sense of alienation between certain members of
    the corporation and factions within the community.

  • There have been allegations of threatening and intimidating behaviour.

  • The chairperson currently has an apprehended violence order against a
    community member.

  • The chairperson and administrator argue that the Committee acts in the
    broader interests of the Aboriginal community. A ‘vocal’ minority
    disagree suggesting it is rife with ‘nepotism, cronyism and poor
    governance.’[94]

The governance structure of a PBC under the CATSI Act can affect how a native
title holding group makes decisions. For example, if a native title holding
group is made up of multiple families and estates but only one chairperson is
authorised to sign off on decisions by the PBC, then this enables the
chairperson to circumvent or veto decisions made by other families in the native
title holding group. This issue is particularly relevant where decision-making
protocols have not been designed to suit the needs of the group.

These types of decision-making structures can create positions of power and
build divisions in our communities as some of us benefit (or are perceived to
benefit) from decisions made by individuals in a position of authority. In
contrast, governance structures such as the one developed by the Quandamooka
Peoples, which is discussed as a case study later in this Chapter, provide a
mechanism to include all families in a native title holding group in
decision-making processes.

Governance structures that manage the complexities of native title rights and
interests must straddle the laws of the CATSI Act and also encompass our way of
doing business. The AIATSIS Research Discussion Paper by Jessica Weir, Karajarri: a West Kimberley experience in managing native title, notes
that:

[c]onflict results because some Karajarri expect that native title results in
a royalty stream to fund Karajarri individual and collective priorities ...
there are complex issues of communal lands and group and individual rights that
require innovation beyond the categories of public and
private.[95]

Too often, our efforts to meet the requirements of ‘white man’s
law’ and to achieve our own objectives lead to confusion and conflict in
our communities.

As most determinations of native title provide limited benefits to our
communities, PBCs usually have minimal capacity and inadequate resources to
manage our native title interests. This has the following two implications for a
PBC and native title holding group:

  • It is difficult for a PBC with limited funding to fulfil the requirements of
    a corporation under the CATSI Act and respond to administrative obligations in
    accordance with the Native Title Act such as future act notices.

  • It is challenging for a PBC with minimal resources to address expectations
    that their determination of native title will solve the long-term social and
    economic problems facing their community.

This pressure of community
and statutory demands on PBCs that operate with limited capacity and resources
produces an opportunity for lateral violence within our families, communities
and organisations.

(d) Negotiating Indigenous Land Use Agreements
(ILUAs)

The Native Title Act sets out the prerequisites of
ILUAs.[96] ILUAs are usually about
the effect of particular acts on our native title rights and interests, or the
impact of future activities on our native title claim
area.[97]

Kevin Smith observed at the AIATSIS Native Title Conference in June
2011:

The resource boom in minerals, coal and coal seam gas has provided
Aboriginal people in the QSNTS region unprecedented economic opportunities for
present and future generations. It is the responsibility of applicants and
claimants to protect rights and interests and seek compensation through s 31
Agreements and ILUAs. The tension is dividing the requisite amount of time and
resources in the pursuit of these opportunities with prosecuting the claim in
the Federal Court.[98]

There are several aspects of negotiating ILUAs that can trigger lateral
violence in our communities.

Negotiating an ILUA with a proponent that wants to carry out activities on a
native title claim area forces the claim group to jointly decide a negotiation
position. For example, this could include the claim group agreeing on whether or
not to support the future act and what is a suitable level of compensation.
Agreeing on a position may be relatively straightforward in situations where the
activity is not inherently controversial and/or potentially beneficial to the
community and is not expected to have a detrimental impact on their claimed
native title rights and interests, such as an extension to school buildings or
building a medical centre.

However, it is likely to be more difficult for the claim group to agree to a
proposed open cut mine that is likely to devastate country. In these situations,
the claim group may be split between those who see the potential royalties and
employment and training opportunities as providing a future for their children
and grandchildren, and those who consider that no amount of money and jobs can
compensate the damage to their lands, waters and spiritual life. Understandably,
a native title claim group that needs to resolve these fundamentally different
and emotionally difficult positions is likely to find negotiating an ILUA
escalates lateral violence in their community as they attempt to manage this
complex and controversial process.

The challenges of these situations have been demonstrated in the extensive
media coverage over the past year on the process of negotiating an ILUA between
the Goolarabooloo Jabirr Jabirr Peoples and Woodside Petroleum and the Western
Australian Government over the proposed gas hub at James Price Point, north of
Broome in Western Australia; and the negotiation meetings between the
Yindjibarndi People and Fortescue Mining Group over the Solomon Gas Hub in the
Pilbara region.[99] Both of these
situations have led to toxic relationships between Aboriginal peoples of these
areas, governments and mining companies. This has also caused extreme stress and
conflict within both of these traditional owner groups and clearly demonstrates
how the native title process can contribute to lateral violence.

Micheal Meegan, the Principal Legal Officer at Yamatji Marlpa Aboriginal
Corporation, which is the NTRB for the Pilbara and Yamatji regions and has
responsibility for a range of major and mid-level future act negotiations across
these regions, observed that native title claimants were well aware of the
compensation benchmarks and other terms negotiated between their neighbouring
native title claims and mining companies, and claimants expected different
mining companies to commit to benchmark compensation levels with the respective
native title claim groups where mining activity was occurring across a region.
The unwillingness of mining companies to meet these expectations of
commeasurable compensation terms, the readiness of some mining companies to
seek future act arbitration from the Tribunal, and the state government’s
predisposition in the James Price Point case to compulsorily acquire the land to
be developed all add to the pressure on native title claim groups and the
likelihood of lateral violence occurring during and after the negotiation of
ILUAs.[100]

(e) Alternate legislation affecting land,
territories and resources

Native title intersects with alternate legislation that governs our access to
land and resources. Some of the legislation that determines our rights to land
and cultural heritage protection in different states and territories is listed
in Text Box 2.11.

Text Box 2.11: Legislation affecting our rights to land, territories and
resources

Commonwealth

  • Australian Heritage Commission Act 1975 (Cth)

  • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

  • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

  • Protection of Movable Cultural Heritage Act 1986 (Cth)

  • Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)

  • Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth)

  • Native Title Act 1993 (Cth)

  • Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Northern Territory

  • Northern Territory Aboriginal Sacred Sites Act 1989 (NT)

  • Pastoral Land Act 1992 (NT)

Western
Australia

  • Aboriginal Heritage Act 1972 (WA)

  • Aboriginal Affairs Planning Authority Act 1972 (WA)

  • Land Administration Act 1997 (WA)

New South Wales

  • National Parks and Wildlife Act 1974 (NSW)

  • Heritage Act 1977 (NSW)

  • Aboriginal Land Rights Act 1983 (NSW)

South
Australia

  • Pitjantjatjara Land Rights Act 1981 (SA)

  • Maralinga Tjaruta Land Rights Act 1984 (SA)

Victoria

  • Aboriginal Lands Act 1970 (Vic)

  • Aboriginal Land (Aborigines’ Advancement League (Watt Street)
    Northcote) Act
    1982 (Vic)

  • Aboriginal Land (Northcote Land) Act 1989 (Vic)

  • Aboriginal Lands Act 1991 (Vic)

  • Aboriginal Land (Manatunga Land) Act 1992 (Vic)

  • Aboriginal Heritage Act 2006 (Vic)

  • Traditional Owner Settlement Act 2010 (Vic)

Tasmania

  • Aboriginal Lands Act 1995 (Tas)

Queensland

  • Community Services (Aborigines) Act 1984 (Qld)[101]

  • Community Services (Torres Strait) Act 1984 (Qld)[102]

  • Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)

  • Aboriginal Land Act 1991 (Qld)

  • Torres Strait Islander Land Act 1991 (Qld)

  • Nature Conservation Act 1992 (Qld)

  • Land Act 1994 (Qld)

  • Aboriginal Cultural Heritage Act 2003 (Qld)

  • Wild Rivers Act 2005 (Qld)

  • Cape York Peninsula Heritage Act 2007 (Qld)

The intent of this legislation has varying effects on our access to land and
protection of cultural heritage across state and territory jurisdictions.
However, the ways in which the Native Title Act interacts with other legislation
in various jurisdictions can cause confusion and result in conflict within our
communities. This is shown in Text Box 2.12, which sets out the study by
Behrendt and Kelly about conflict created by native title in New South
Wales.

Text Box 2.12: Conflict in native title

Larissa Behrendt and Loretta Kelly undertook a study about conflict created
by native title in New South
Wales.[103] They observed
‘intra-cultural’ conflict occurring between Aboriginal peoples about
the following issues:

  • Traditional versus historical claims: conflict occurs ‘between
    traditional Aboriginal custodians and other Aboriginal occupants who may have
    interests in the same parcel of
    land’.[104]

  • Boundary disputes and overlapping claims: conflict ‘over boundaries
    can cause fighting, not only between family groups, but also within
    families’.[105]

  • Different aims and governance problems: conflict arises where ‘aims
    and objectives (in relation to the land claimed) differ amongst members of the
    claimant group’. Older people may be ‘more concerned about the
    preservation and restoration of environment, culture and language; whereas
    younger people are often more interested in developing land and obtaining
    jobs’.[106]

  • Family feuding: native title claims ‘add fuel to the fire’ in
    communities where feuds between one family and another family are already a
    source of
    conflict.[107]

Behrendt
and Kelly also note that native title can create:

  • ‘Inter-cultural’ conflict that occurs between Aboriginal and
    non-Aboriginal people.

  • ‘Organisational’ conflict that may ‘involve key
    individuals who are all Aboriginal, or there may be some key individuals to the
    conflict who are
    non-Aboriginal’.[108]

In Queensland, responses from NTRBs/NTSPs highlighted two examples where the
interaction of the Native Title Act and other legislation creates complexities
for our communities. The first example is the intersection of native title and
the Deed of Grant in Trust (DOGIT) system of land
tenure[109], each of which is
expected to benefit Aboriginal and Torres Strait Islander people, but represents
distinct interests and has different purposes. The Torres Strait Regional
Authority observed that:

Tensions between the native title system and the DOGIT often raise
disputation on the issue of compensation. This is understandable as the Torres
Strait Island Regional Council (TSIRC) is a local government body with a key
focus on development, [and] this can at times be structurally adversarial to
native title interests.[110]

The second example is the role of the applicant for a native title claim in
Queensland also having responsibilities in accordance with the Aboriginal
Cultural Heritage Act 2003
(Qld). This bestows certain duties that give the
applicant responsibilities with regard to cultural heritage and often results in
paid employment for Aboriginal and Torres Strait Islander
peoples.[111] As mentioned above,
native title claimants are usually not paid to participate in these processes.
This can create divisions between the applicant and the native title claim group
if the applicant is perceived to be supporting their own family’s
interests rather than representing the interests of the whole claim
group.[112]

In Victoria, the different histories and relationships to land for Aboriginal
peoples are affected by the interaction of the Native Title Act and the Aboriginal Heritage Act 2006. The Right People for Country Project
seeks to address uncertainty and conflict that can be produced by the
intersection of native title and cultural heritage legislation by creating an
agreement-making structure to deal with disputes between Aboriginal peoples over
land ownership and cultural
heritage.[113] I discuss this
further as a case study in the following section.

In summary, the complex and demanding process to recognise our native title
rights creates opportunities for lateral violence within our families,
communities and organisations. This is because the non-Indigenous policies and
structures that govern the native title process require us to endure the
significant burden of proving that our connection to our country exists –
even though the experience of colonialism has taken many of us from our country
and the meaning of land and resources has changed to accommodate non-Indigenous
legal and commercial values. Nonetheless, many of us continue to demonstrate our
strength and our optimism by participating in the native title process in the
hope that our rights to our country will be recognised.

2.3 Case studies: communities minimising lateral
violence

It is my view that the native title system can result in positive outcomes
for Aboriginal and Torres Strait Islander people, particularly if our
traditional ownership is formally recognised and we are offered opportunities to
negotiate agreements concerning the use and development of our lands.

The following two case studies illustrate how our communities are developing
governance frameworks to minimise the impact of lateral violence in native
title.

(a) Quandamooka Peoples native title consent
determination

On 4 July 2011, the Quandamooka Peoples native title rights and interests
were recognised over their lands and waters on and surrounding North Stradbroke
Island, and some islands in Moreton Bay. More than 16 years after the
Quandamooka People lodged their native title claim, this occasion marked the
first native title determination in southern Queensland: see Text Box 2.13. The
final determination of native title will take effect upon the registration of
two ILUAs negotiated by the Quandamooka Peoples with the Queensland State
Government and the Redlands Shire
Council.[114]

I congratulate the Quandamooka Peoples and the many organisations and
individuals who were involved with the consent determination of the native title
claim.

Map 2.1: Quandamooka Peoples determination
area[115]

Map 2.1: Quandamooka Peoples determination area

Text Box 2.13: Timeline: Quandamooka Peoples consent
determination

3 January 1995: Quandamooka Peoples lodged their first
native title claim over the majority of North Stradbroke Island and the southern
part of Moreton Island, Bird Island, Goat Island, Peel Island and surrounding
offshore areas.

8 September 1995: Quandamooka People #1 application was
placed on the Register of Native Title Claims.

14 August 1997: Quandamooka Land Council and Redland
Shire Council signed a Process Agreement that established a framework for future
negotiations.

10 September 1999: Quandamooka Peoples filed their second
claim with the Federal Court over the southern part of North Stradbroke Island
and some areas in the north of the Island.

4 June 2000: Quandamooka People #2 claim was
registered with the National Native Title Tribunal.

26 October 2010: Quandamooka People and the State of
Queensland signed an Agreement in Principle for a Quandamooka-State ILUA.

February 2010 – July 2011: Mediation by the National Native Title
Tribunal.

4 July 2011: Federal Court of Australia made two
consent native title determinations at Dunwich, North Stradbroke
Island.[116]

The positive consent determination of the Quandamooka Peoples’ native
title claim belies the long and at times, divisive native title process that has
been experienced by the native title claim group.

For the Quandamooka Peoples, the 70 year history of sand-mining on North
Stradbroke Island has created bitter relationships within the community between
those families who financially have benefited from employment by the mining
companies and those families that have believed that sand-mining should stop
because of its devastating impact on their
Island.[117] While sand-mining was
occurring prior to native title, native title meetings provided another forum
for old fights about mining to take on a renewed
energy.[118]

Since the first native title claimant application was lodged by the
Quandamooka Peoples in 1995, the process of resolving their native title
required the claim group to decide who are the people in the native title claim
group, who are the person or people that are the applicant, and negotiate with
multiple parties about their native title rights and interests over North
Stradbroke Island and some of the surrounding islands and waters of Morton Bay.
The intense pressure on the community from these processes resulted in the
Quandamooka peoples declining a native title settlement offer from the
Queensland Government almost ten years ago.

The turning point for the Quandamooka Peoples claim was in 2005 when QSNTS,
the representative body for the claim area, organised a meeting between
Quandamooka Elders, the Federal Court and QSNTS. The participants at the meeting
talked about the history of the native title determination application and
obtained the Elders’ agreement to progress the resolution of the
claim.[119]

It is my understanding that the native title consent determination for the
Quandamooka Peoples coincides with agreement that all sand-mining will cease on
North Stradbroke Island by 2025 and 80 per cent of the Island will become
national park by 2026.[120] However, the agreement to close sand-mining does not immediately halt the
conflict within the community as some families deal with fear about the loss of
employment and concern about whether other employment opportunities in tourism
and joint management of national parks will
transpire.[121]

So, what governance structure did the Quandamooka Peoples establish to deal
with these issues that cause fights within their community?

Post-2005, the Quandamooka Peoples developed a clear and transparent
decision-making process to enable them to deal with issues to negotiate their
native title claim. As shown in Diagram 2.3, this governance structure
incorporates one representative from each of the twelve families who are
descendants of the twelve apical ancestors named in the native title claim
group.[122]

This group of twelve family representatives advised the single named
applicant during the native title negotiations. Decisions by the applicant
required the mandate of the family representatives, who agreed on issues by
consensus. Any issues that were disputed and could not be resolved by the group
of family representatives were taken to the Council of Elders. The Council of
Elders comprises twelve female Elders and twelve male Elders who represent each
of the family groups and apical ancestors. Elders must be acknowledged as such
by their peers before they are accepted on to the Council of
Elders.[123]

Diagram 2.3: Governance structure for Quandamooka Peoples

Diagram 2.3: Governance structure for Quandamooka Peoples

The Quandamooka Peoples have ensured that this inclusive structure of
decision-making continues in Yoolooburrabee Aboriginal Corporation, the PBC set
up to manage their native title
rights.[124]

(b) Right People for Country Project:
Victoria

The Right People for Country Project in Victoria creates a new
approach to resolving disputes between Aboriginal peoples over land ownership
and cultural heritage.

Diagram 2.4 demonstrates how the separate systems and processes used to
determine native title and cultural heritage rights can be aligned through the Right People for Country Project.

Diagram 2.4: Native title and cultural heritage
management[125]

Diagram 2.4: Native title and cultural heritage management

The Project seeks to develop an agreement-making process led by Aboriginal
peoples that deals with disputes about group membership and extent of country.
In Chapter 4, I outline the core principles for this Indigenous agreement-making
process and the way it has incorporated the rights set out in the United
Nations Declaration on the Rights of Indigenous Peoples
(the
Declaration).

In March 2011, the Right People for Country Project Committee
completed their Report, which sought to develop a new approach to support the
resolution of disputes between Aboriginal peoples in Victoria. The Project
Committee comprises the Victorian Government, the Victorian Aboriginal Heritage
Council, the Victorian Traditional Owner Land Justice Group and Native Title
Services Victoria.

I commend the Project Committee for their partnership in developing the Right People for Country Project and their commitment to addressing land
issues.

The Executive Summary of the Project Committee’s Report that was
completed in March 2011 is set out in Text Box 2.14.

Text Box 2.14: Report of the Right People for Country Project
Committee

Background

The High Court decision in the Mabo case in 1992 and the Native
Title Act brought about a fundamental shift in law and government policy,
giving way to the growing recognition of the rights and interests of Aboriginal
people to their country. Implementation of the Aboriginal Heritage Act
2006
(Victoria) has continued this broad shift, with Traditional Owner
groups being appointed as Registered Aboriginal Parties with cultural heritage
management responsibilities for defined areas.

One of the critical threshold issues affecting the rate of settlement of
native title claims and the appointment of Registered Aboriginal Parties is the
question of native title or Traditional Owner group composition and the extent
of their country.

In 2009, The Report of the Steering Committee for the Development of a
Victorian Native Title Settlement Framework
recommended the Right People
for Country
project be established to develop and implement a new
approach to support resolution of Indigenous disputes. This Right People for
Country
report is a response to the Steering Committee’s
recommendation. It has been developed by a project committee comprising
representatives of Victorian Traditional Owners and Victorian Government
agencies.

The Right People for Country project represents a new approach to
Indigenous disputes in Victoria. The project is an Indigenous-led agreement
making approach that shifts away from governments and courts making decisions for Traditional Owners on questions of group membership and extent of
country. It is a significant step towards enabling Traditional Owners to make
decisions for and among themselves. This approach is based on national and
international best practice and is informed by consultations with Victorian
Traditional Owners.

Rationale for a new approach

Victoria has a history of dispossession, dispersal and removal of
Victoria’s first peoples from their country. This has set the scene for
disputation around questions of identity and extent of country. Where the
impacts of settlement have been most profound, the resolution of group
composition and extent of country issues may be contested among Aboriginal
people themselves. The process of publicly identifying and defining
Victoria’s native title or Traditional Owner groups has sometimes created
new disputes or added fuel to existing ones within the Indigenous
community.

The uncertainty created by these disputes leads to social and economic
costs for government, land users and Traditional Owners. These include increased
legal and administrative costs in processing native title claims and Registered
Aboriginal Party applications, delays to land dealings caused by uncertainty
about who are the ‘right people for country’, delays in native title
and cultural heritage outcomes for Traditional Owners, and ongoing conflict and
division in Indigenous communities.

Current approaches to determining traditional ownership have had limited
success in resolving Traditional Owner disputes. The native title system has
imposed court-managed mediation processes, framed by a litigious approach and
driven by the imperatives of processing the broader claim. In Victoria such
native title mediation has been lengthy and expensive. Processes – and
sometimes outcomes – have been imposed and have received limited
acceptance by the communities involved. The Victorian Aboriginal Heritage
Council has had no legislative mandate and no dedicated resources to support
Traditional Owner groups to work through disputes.

For native title and cultural heritage outcomes to be robust, positive and
durable, Traditional Owner communities need to be able to work through issues of
group membership and extent of country on their own terms. A lack of capacity
and supporting resources and processes is stopping Traditional Owner groups from
reaching agreements and resolving disputes among themselves. Government has a
role in facilitating the development of a new approach to support Traditional
Owner groups to reach internal agreements that can then form the basis for
engagement with government.

Benefits of agreement making

The agreements that are developed through the Right People for Country project will provide government and land users with greater certainty about
who to deal with for defined areas of country. They will assist government to
settle native title claims and the Victorian Aboriginal Heritage Council to
appoint Registered Aboriginal Parties. Agreement making will seek to identify a
single inclusive Traditional Owner entity for a defined area for land and
cultural heritage management purposes.

The Right People for Country project will lead to significant
benefits for the Victorian Government, land users and Indigenous people:

  • greater certainty for government and land users about who to deal with for a
    defined area of country

  • better native title and cultural heritage outcomes

  • reduced costs for government, land users and Traditional Owners

  • strengthened capacity of Traditional Owner groups to manage relationships
    and negotiate agreements

  • greater alignment of native title and cultural heritage management processes
    and priorities

  • reduced conflict and division in Indigenous communities.

Roadmap for implementation

The vision of the Right People for Country project is that
Traditional Owner groups reach durable agreements about group composition and/or
extent of country that lead to better native title and cultural heritage
management outcomes.

The report identifies success factors for Indigenous agreement making and
identifies 32 resulting core principles. These core principles provide a roadmap
for how the project should be implemented and underpin the four project
objectives:

  • To develop a best practice agreement making approach to support Traditional
    Owner groups to reach durable agreements about group composition and/or extent
    of country issues

  • To strengthen the organisational capacity of Traditional Owner groups to
    manage disputes and negotiate agreements

  • To build a workforce of Indigenous and non-Indigenous facilitators skilled
    in Indigenous agreement making

  • To coordinate systems and build collaboration of stakeholders to support
    Indigenous agreement making.

Traditional Owners will be supported
by skilled facilitators to prepare for and then negotiate durable agreements.
Traditional Owners will have opportunities to strengthen their capacity to
better manage relationships and negotiate agreements. Greater coordination and
collaboration of stakeholders will support the agreement making process.

Agreements will address the minimum requirements of the Victorian
Government and the Victorian Aboriginal Heritage Council to ensure that they
assist in the resolution of native title and appointment of Registered
Aboriginal Parties. Minimum requirements include that Traditional Owner groups
have inclusive group membership and that agreements are supported by available
research.

Agreement making is an additional option available to Traditional Owner
groups to resolve Indigenous disputes about group composition and extent of
country. Where groups do not wish to or are not ready to engage or where
agreement is not reached, existing native title and cultural heritage management
processes remain.[126]

Both the governance structure established by Quandamooka Peoples to progress
their native title claim in Queensland and the framework developed by the Right People for Country Project to manage native title and cultural
heritage in Victoria demonstrate how we can create frameworks to maximise the
outcomes that can be achieved through the native title system and minimise the
impact of lateral violence in our communities in the native title process.

2.4 Conclusion

Native title can be a catalyst for lateral violence because the native title
process reinforces our oppression and dispossession of our lands, and raises
questions about our identity – issues that are already sensitive for us
given our harsh history of colonialism.

Lateral violence resulting from our engagement in native title is having a
devastating impact on our families and communities and we need to work out ways
to address this. I believe that there are some changes that we, as Aboriginal
and Torres Strait Islander peoples, need to make in rebuilding our relationships
with each other. Government and industry also can work with our communities
differently. I talk about this further in Chapters 3 and 4, where I use the
Declaration as a guide to explore strategies to address lateral violence in our
families, communities and organisations.


[1] ‘Land, territories and
resources’ is the term used in the United Nations Declaration on the
Rights of Indigenous
Peoples
.
[2] R Frankland and P
Lewis, Presentation to Social Justice Unit staff, Australian Human Rights
Commission, 14 March 2011.
[3] M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Our
Relationships in Native Title: starting the conversation
(Keynote address
delivered at the Australian Institute of Aboriginal and Torres Strait Islander
Studies Native Title Conference, Brisbane, 2 June
2011).
[4] Responses about lateral
violence and native title were received from eight NTRBs/NTSPs including Central
Desert Native Title Services, Central Land Council, Native Title Services
Victoria, NTSCORP Ltd, Queensland South Native Title Services, South West
Aboriginal Land and Sea Council, Torres Strait Regional Authority and Yamatji
Marlpa Aboriginal Corporation; and the Tribunal and FaHCSIA. I note that several
organisations observed that prior to my keynote address at the AIATSIS Native
Title Conference, they were not aware of the term ‘lateral violence’
but that the description of lateral violence was consistent with behaviours they
could identify in their organisations and
communities.
[5] See the Social
Justice Report 2011
for a discussion about lateral violence and an
explanation about why lateral violence occurs within Aboriginal and Torres
Strait Islander families, communities and
organisations.
[6] M Langton,
‘The end of “big men” politics’ (2008) 22 Griffith
Review
11, p 3. At http://griffithreview.com/edition-22-moneysexpower/the-end-of-big-men-politics (viewed 21 September 2011).
[7] S
Gorringe, J Ross and C Forde, ‘Will the Real Aborigine Please Stand
Up’: strategies for breaking the stereotypes and changing the
conversation
(2011), AIATSIS Research Discussion Paper 28, p 8. At http://www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 27 September 2011).
[8] G
Phillips, Healing Identity in Contemporary Australia: what is a
real/traditional/grassroots Aborigine
(Australian Institute of Aboriginal
and Torres Strait Islander Studies Seminar Series, Canberra, 18 May 2009). At http://www.aiatsis.gov.au/research/seminarseries/2009-1.html (viewed 6 October 2011).
[9] F
Fanon, The Wretched of the Earth (1963).
[10] P Freire, Pedagogy of the Oppressed (1971).
[11] S Carmichael and C
Hamilton, Black Power (1967).
[12] K Lewin, Resolving Social Conflicts (1948).
[13] J Miller, Toward
a New Psychology for Women
(1976).
[14] S J Roberts,
‘Oppressed Group Behaviours: implications for nursing’ (1983) 5(4) Advances in Nursing Science 21.
[15] P Freire, Pedagogy of the Oppressed (1971).
[16] F Fanon, The
Wretched of the Earth
(1963).
[17] R Frankland in
Creative Spirits, Bullying and Lateral Violence. At http://www.creativespirits.info/aboriginalculture/people/bullying-and-lateral-violence.html (viewed 6 October 2011).
[18] G
Phillips, Healing Identity in Contemporary Australia: what is a
real/traditional/grassroots Aborigine
(Australian Institute of Aboriginal
and Torres Strait Islander Studies Seminar Series, Canberra, 18 May 2009). At http://www.aiatsis.gov.au/research/seminarseries/2009-1.html (viewed 6 October 2011).
[19] G
Macdonald, ‘Colonizing Processes, the Reach of the State and Ontological
Violence: historicizing Aboriginal Australian experience’ (2010), Anthropologica 52, pp
49–66.
[20] G Macdonald,
‘Colonizing Processes, the Reach of the State and Ontological Violence:
historicizing Aboriginal Australian experience’ (2010), Anthropologica 52, p
50.
[21] R Frankland, M Bamblett,
P Lewis and R Trotter, This is ‘Forever Business’: a framework
for maintaining and restoring cultural safety in Aboriginal Victoria
(2010),
p 19.
[22] See M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2011,
Australian Human Rights Commission
(2011).
[23] For example, see
State Government of Victoria, Department of Planning and Community Development, Indigenous Regional Forums 2010 (2010), p 9. At http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0017/51254/Indigenous-Regional-Forums-2010-Report_FINAL_Double-Pages.pdf (viewed 6 October 2011). Also see the Report of the Right People for Country Project Committee (2011), p
6.
[24] The Protection Acts that
governed the removal of Aboriginal and Torres Strait Islander peoples can be
found at AIATSIS, To Remove and Protect, http://www1.aiatsis.gov.au/exhibitions/removeprotect/index.html (viewed 21 September 2011).
[25] D Martin, T Bauman and Jodi Neale, Challenges for Australian Native Title
Anthropology: practice beyond the proof of connection
(2011), AIATSIS
Research Discussion Paper 29, p 6. At http://www.aiatsis.gov.au/research/documents/DP29NTRU2011.pdf (viewed 27 September 2011).
[26] R Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever
Business’: a framework for maintaining and restoring cultural safety in
Aboriginal Victoria
(2010), p
25.
[27] Mabo v Queensland [No
2]
(1992) 175 CLR 1.
[28] See
D Martin, ‘Designing Institutions in the ‘Recognition Space’
of Native Title’ in S Toussaint (ed), Crossing Boundaries: cultural,
legal, historical and practice issues in native title
(2004), p 68.
[29] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 6. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[30] D Ritter, Contesting Native Title: from controversy to consensus in the
struggle over Indigenous land rights
(2009), p
74.
[31] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 10. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[32] Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
Australia,
UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At: http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 30 August 2011).
[33] R
Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever
Business: A Framework for Maintaining and Restoring Cultural Safety in
Aboriginal Victoria
(2010), p
79.
[34] S Gorringe, J Ross and C
Forde, ‘Will the Real Aborigine Please Stand Up’: strategies for
breaking the stereotypes and changing the conversation
(2011), AIATSIS
Research Discussion Paper 28, p 8. At http://www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 27 September 2011).
[35] S Gorringe, J Ross and C Forde, ‘Will the Real Aborigine Please Stand
Up’: strategies for breaking the stereotypes and changing the
conversation
(2011), AIATSIS Research Discussion Paper 28, p 8. At http://www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 27 September 2011).
[36] L Kelly and L Behrendt, ‘Creating Conflict: case studies in the tension
between native title claims and land rights claims’ (2007), Journal of
Indigenous Policy: Indigenous land: the war on terra
Issue 8, pp
73–93. Also see T McAvoy and V Cooms, Even as the Crow Flies, it is
Still a Long Way: implementation of the Queensland South Native Title Services
Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2.
At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[37] S Gorringe, J Ross and C Forde, ‘Will the Real Aborigine Please Stand
Up’: strategies for breaking the stereotypes and changing the
conversation
(2011), AIATSIS Research Discussion Paper 28, p 8. At http://www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 27 September 2011).
[38] Y C Paradies, ‘Beyond Black and White: essentialism, hybridity and
Indigeneity’ (2006) Journal of Sociology 42 (355), pp 356,
361.
[39] Adapted from the
brochure by the National Native Title Tribunal, ‘What happens when
there’s a native title application?’ (2010). At http://www.nntt.gov.au/Publications-And-Research/Publications/Pages/Brochures.aspx (viewed 20 September 2011).
[40] This may also be called a Form 1: native title determination application:
claimant application and is available on the Federal Court of Australia website.
At http://www.fedcourt.gov.au/fff/fff_NTregulations_1.html (viewed 9 September 2011).
[41] A
Prescribed Body Corporate also may be referred to as a Registered Native Title
Body Corporate (RNTBC), which is described in the Native Title Act 1993 (Cth), s 253.
[42] T McAvoy and V
Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 8. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[43] Also see discussion by T McAvoy and V Cooms, Even as the Crow Flies, it is
Still a Long Way: implementation of the Queensland South Native Title Services
Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2,
pp 3–4. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011), where they explain the differences between NTRBs and
NTSPs, and how NTSPs are vulnerable to being manipulated by government because
they can have their funding withdrawn at short
notice.
[44] T McAvoy and V
Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 2. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[45] L Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and
beyond
(2008), p 33.
[46] See
the Native Title Act 1993 (Cth), ss 190B and 190C, for the complete
information required for a native title claimant
application.
[47] See the Native Title Act 1993 (Cth), s
251B.
[48] Alternatively, a NTRB
or funded NTSP may certify that the applicant has been authorised and the
application identifies all the other persons in the native title claim group in
accordance with the Native Title Act 1993 (Cth), s
203BE.
[49] National Native Title
Tribunal, National Report Card – September 2010 (2010). At http://www.nntt.gov.au/Publications-And-Research/Publications/Pages/Corp_publications.aspx (viewed 14 September 2011).
[50] See the Native Title Act 1993 (Cth), ss 190E and
190F.
[51] National Native Title
Tribunal, Native title claimant applications: a guide to
understanding the requirements of the registration test
(2008). At http://www.nntt.gov.au/Applications-And-Determinations/Pages/Information-Material.aspx (viewed 23 August 2011).
[52] Graeme Neate, the President of the Tribunal, also comments that Tribunal members
and staff have observed disputes within and between groups of Aboriginal people
in relation to the membership of native title claim groups, the areas covered by
some claims and the progression of claims or other negotiations by the named
applicants – see G Neate, President of the National Native Title Tribunal,
Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 2 August
2011.
[53] South-Western Cengage
Learning, Conflict in Organizations (no date). At http://www.swlearning.com/management/champoux/powerpoint/ch11.ppt (viewed 1 September 2011).
[54] T
Bauman and J Pope (eds), Solid work you mob are doing: case studies in
Indigenous dispute resolution and conflict management in Australia
(2009), p
xix.
[55] L Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p
31.
[56] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 9. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[57] See the Native Title Act 1993 (Cth), s
190B(3).
[58] An apical ancestor
is a common ancestor from whom a claim group traces its
descent.
[59] National Native
Title Tribunal, Native title claimant applications: a guide to
understanding the requirements of the registration test
(2008). At http://www.nntt.gov.au/Applications-And-Determinations/Pages/Information-Material.aspx (viewed 23 August 2011).
[60] M
Aranda, Principal Legal Officer, South West Aboriginal Land and Sea Council,
Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 12 August
2011.
[61] See the Native
Title Act 1993
(Cth), ss 190C(4) and
251B.
[62] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 10. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[63] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan,
Native Title Research Monograph 2 (2008), p 10. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[64] QGC v Bygrave (No 2) (2010) 189 FCR
412.
[65] National Native Title
Tribunal, Native Title Hot Spots (2011) Issue 34, p 11. At http://www.nntt.gov.au/News-and-Communications/Newsletters/Native-title-Hot-Spots-archive/Pages/search.aspx (viewed 6 October 2011).
[66] QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412, 87.
[67] QGC Pty Ltd v
Bygrave (No 2)
(2010) 189 FCR 412, 101.
[68] QGC Pty
Ltd v Bygrave (No 2)
(2010) 189 FCR 412, 90.
[69] National Native
Title Tribunal, Native Title Hot Spots (2011) Issue 34, p 14. At http://www.nntt.gov.au/News-and-Communications/Newsletters/Native-title-Hot-Spots-archive/Pages/search.aspx (viewed 6 October 2011).
[70] See
the Native Title Act 1993 (Cth), s
190B(2).
[71] The Australian
Bureau of Statistics notes that, at June 2006, most Aboriginal and Torres Strait
Islander people lived in non-remote areas with an estimated 32% of people living
in major cities, 43% in regional areas, and 25% in remote areas. See Australian
Bureau of Statistics, The Health and Welfare of Australia's Aboriginal and
Torres Strait Islander Peoples
(2010). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/lookup/4704.0Chapter210Oct+2010 (viewed 15 September 2011).
[72] L Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and
beyond
(2008), p 29.
[73] K
Smith, Personal Communication with Louise Bygrave, Senior Policy Officer Social
Justice Team, 1 August 2011.
[74] K Smith, Personal Communication with Louise Bygrave, Senior Policy Officer
Social Justice Team, 1 August
2011.
[75] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 3. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).
[76] See the Native Title Act 1993 (Cth), s
86B.
[77] See the Native Title
Act 1993
(Cth), s 86A. This does not include a proceeding that involves a
compensation application.
[78] The Attorney-General’s Department is undertaking a review of the Native
Title Respondent Funding Scheme. The purpose of the review is to examine the
efficiency and effectiveness of existing arrangements for financial assistance
to native title respondents and to develop a revised interest test for the
determination of exceptional circumstances for the provision of funding for
legal professional fees to native title respondents. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalaid_FinancialassistancebytheAttorney-Generalinnativetitlecases (viewed 1 September 2011).
[79] K
Smith, Personal Communication with Louise Bygrave, Senior Policy Officer Social
Justice Team, 1 August 2011. Also see R Frankland, M Bamblett, P Lewis and R
Trotter, This is ‘Forever Business’: a framework for maintaining
and restoring cultural safety in Aboriginal Victoria
(2010), p
44.
[80] Also see D Ritter, Contesting Native Title: from controversy to consensus in the struggle over
Indigenous land rights
(2009), p
42.
[81] R McClelland, Negotiating Native Title Forum (Speech delivered at the Negotiating
Native Title Forum, Brisbane 29 February 2008). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FirstQuarter_29February2008-NegotiatingNativeTitleForum (viewed 31 August 2011).
[82] K
Smith, Native Title in 2011: A tale of two cities (Keynote address
delivered at the AIATSIS Native Title Conference, Brisbane, 1 June 2011), p 5.
At http://www.qsnts.com.au/index.cfm?contentID=30 (viewed 3 August 2011).
[83] K
Smith, Native Title in 2011: A tale of two cities (Keynote address
delivered at the AIATSIS Native Title Conference, Brisbane, 1 June 2011), p 5.
At http://www.qsnts.com.au/index.cfm?contentID=30 (viewed 3 August 2011).
[84] National Native Title Tribunal, ‘Native title recognition for the
Quandamooka People’ (Media release, 4 July 2011). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/NativetitlerecognitionfortheQuandamookaPeople.aspx (viewed 22 August 2011).
[85] National Native Title Tribunal, ‘Native title recognition for the
Quandamooka People’ (Media release, 4 July 2011). At http://www.nntt.gov.au/News-and-Communications/Media-Releases/Pages/NativetitlerecognitionfortheQuandamookaPeople.aspx (viewed 22 August 2011).
[86] L
Anderson, Deputy Registrar, Federal Court of Australia, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 9 August
2011.
[87] T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, Native Title Report, (2007). At http://www.hreoc.gov.au/social_justice/nt_report/ntreport07/chapter1.html (viewed 29 August 2011).
[88] See
the Native Title Act 1993 (Cth), s
66B.
[89] I note that a
Prescribed Body Corporate may be established at any stage of the native title
process.
[90] Office of the
Registrar of Indigenous Corporations, Comparative table of Commonwealth,
state and territory incorporation legislation
(2008), p 3. At http://www.oric.gov.au/Content.aspx?content=CATSI-Act/default.htm (viewed 17 September 2011).
[91] Office of the Registrar of Indigenous Corporations, Comparative table of
Commonwealth, state and territory incorporation legislation
(2008), p 3. At http://www.oric.gov.au/Content.aspx?content=CATSI-Act/default.htm (viewed 17 September 2011).
[92] Office of the Registrar of Indigenous Corporations, Comparative table of
Commonwealth, state and territory incorporation legislation
(2008), p 4. At http://www.oric.gov.au/Content.aspx?content=CATSI-Act/default.htm (viewed 17 September 2011).
[93] Office of the Registrar of Indigenous Corporations, Analysing key
characteristics in Indigenous corporate failure: Research paper
(2010), p
46. At http://www.oric.gov.au/html/publications/other/Analysing-key-characteristics-in-Indigenous-corporate%20failure_v-2-2.pdf (viewed 21 September 2011).
[94] Office of the Registrar of Indigenous Corporations, Analysing key
characteristics in Indigenous corporate failure: Research paper
(2010), pp
38, 48–49, 64. At http://www.oric.gov.au/html/publications/other/Analysing-key-characteristics-in-Indigenous-corporate%20failure_v-2-2.pdf (viewed 21 September 2011).
[95] J Weir, Karajarri: a West Kimberley experience in managing native title (2011), AIATSIS Research Discussion Paper 30, p 17. At http://www.aiatsis.gov.au/research/documents/DP30NTRU.pdf (viewed 27 September 2011).
[96] See the Native Title Act 1993 (Cth), s 24BA for the definition of an ILUA
(body corporate agreement) and s 24CA for the definition of an ILUA (area
agreement).
[97] See the Native Title Act 1993 (Cth), s 24BB for the matters that an ILUA (body
corporate agreement) must be about and s 24CB for the matters that an ILUA (area
agreement) must be about.
[98] K
Smith, Native Title in 2011: A tale of two cities (Keynote address
delivered at the AIATSIS Native Title Conference, Brisbane, 1 June 2011), p 6.
At http://www.qsnts.com.au/index.cfm?contentID=30 (viewed 3 August 2011).
[99] For
example, see Australian Broadcasting Corporation, Iron and Dust – Four
Corners,
18 July 2011. At http://www.abc.net.au/4corners/stories/2011/07/18/3270263.htm (viewed 29 September 2011); P Cleary, ‘Pilbara split by resource
riches’ The Australian 14 May 2011. At http://www.theaustralian.com.au/national-affairs/pilbara-split-by-resource-riches/story-fn59niix-1226055581095 (viewed 29 September 2011); P Taylor, ‘Coconut slurs as Woodside gas deal
in the Kimberley riles greens’ The Australian 21 September 2011. At http://www.theaustralian.com.au/national-affairs/coconut-slurs-as-woodside-gas-deal-in-the-kimberley-riles-greens/story-fn59niix-1226142192914 (viewed 21 September
2011).
[100] M Meegan, Personal
Communication with Louise Bygrave, Senior Policy Officer, Australian Human
Rights Commission, 28 July
2011.
[101] This legislation
created community level land trusts that own and administer former reserves or
missions under a Deed of Grant in Trust
(DOGIT).
[102] This legislation
created community level land trusts that own and administer former reserves or
missions under a Deed of Grant in Trust
(DOGIT).
[103] L Behrendt and L
Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), pp
27–56.
[104] L Behrendt
and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p 28.
[105] L Behrendt
and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p 29.
[106] L Behrendt
and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p 30.
[107] L Behrendt
and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p 31.
[108] L Behrendt
and L Kelly, Resolving Indigenous Disputes: land conflict and beyond (2008), p 27.
[109] Deed of
Grant in Trust (DOGIT) is a form of community freehold tenure held over former
reserves or missions by community level land
trusts.
[110] J T Kris,
Chairperson, Torres Strait Regional Authority, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 26 July
2011.
[111] K Smith, Personal
Communication with Louise Bygrave, Senior Policy Officer Social Justice Team, 1
August 2011.
[112] T McAvoy and
V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of
the Queensland South Native Title Services Ltd Legal Services Strategic Plan
(2008), Native Title Research Monograph 2, p 3. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September
2011).
[113] Report of the Right People for Country Project Committee
(2011).
[114] National Native
Title Tribunal, Quandamooka People’s native title determinations, North
Stradbroke Island
(2011). At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Multimedia%20and%20determination%20brochures/Determination%20brochure%20%20-%20Quandamooka%20People's%204%20July%202011.pdf (viewed 29 September
2011).
[115] Map produced by
the National Native Title
Tribunal.
[116] National Native
Title Tribunal, Quandamooka People’s native title determinations, North
Stradbroke Island
(2011). At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Multimedia%20and%20determination%20brochures/Determination%20brochure%20%20-%20Quandamooka%20People's%204%20July%202011.pdf (viewed 29 September
2011).
[117] National
Indigenous Times, ‘Mining Divides Stradbroke’, 23 June 2011, p
15.
[118] M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Our Relationships in
Native Title: starting the conversation
(Keynote address delivered at the
Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
Native Title Conference, Brisbane, 2 June 2011), p
7.
[119] V Cooms, Personal
Communication with Louise Bygrave, Senior Policy Officer Social Justice Team, 8
August 2011.
[120] V Darling,
Minister for Environment, ‘North Stradbroke Island Reference Group –
community planning for the future’ (Ministerial Media Statements, 25
August 2011). At http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=76228 (viewed 2 September
2011).
[121] V Cooms, Personal
Communication with Louise Bygrave, Senior Policy Officer Social Justice Team, 8
August 2011.
[122] V Cooms,
Personal Communication with Louise Bygrave, Senior Policy Officer Social Justice
Team, 8 August 2011.
[123] V
Cooms, Personal Communication with Louise Bygrave, Senior Policy Officer, Social
Justice Team, 8 August
2011.
[124] V Cooms, Personal
Communication with Louise Bygrave, Senior Policy Officer, Social Justice Team, 8
August 2011.
[125] Report of
the Right People for Country Project Committee (2011), p
13.
[126] Report of the Right People for Country Project Committee (2011), pp 6–8.