Native Title Report 2001: Chapter Two: Resourcing Equality

back to contents

Native Title Report 2001

Chapter Two: Resourcing Equality

Introduction

Distribution of Funding within the Native Title System

• Budget Allocation
• Representative bodies
• The Federal Court
• The National Native Title Tribunal

Failure to fund the representative bodies consistently with their statutory responsibilities

• Report to the Government of Western Australia of Review of the Native Title Claim Process in Western Australia
• Report of the Parliamentary Joint Committee on Native Title
• The Parker Report
• Love Rashid Report

Funding fails to recognise critical factors

The cost of the amendments to the NTA.

• Increasing future act notifications
• Increased demands of the registration test
• Increased accountability requirements

• Re-recognition of representative bodies The interrelationship of the component parts of the native title process. Representative bodies facilitate the interaction of two different systems of law.

The interrelationship of the component parts of the native title process.

Representative bodies facilitate the interaction of two different systems of law.

Benchmarks

Introduction

The recognition and protection of native title and the participation of Indigenous people in decisions affecting their land are critical priorities within a human rights framework. These principles arise out of the international law concepts of equality, effective participation and the protection of minority cultures contained in various human rights treaties to which Australia is a signatory, including the International Convention on the Elimination of All Forms of Racial Discrimination (the 'ICERD') and the International Covenants on Economic, Social and Cultural Rights (the 'ICESCR') and on Civil and Political Rights (the 'ICCPR'). These principles are discussed more fully in chapters one and three.

The level of protection extended to native title and the degree to which Indigenous people participate in the native title process is, to a large extent, determined by the interaction of those administrative and governmental institutions that make up the native title system. These include: the Aboriginal and Torres Strait Islander Commission ('ATSIC'); native title representative bodies ('NTRB's or 'representative bodies'); the National Native Title Tribunal ('NNTT'); the Federal Court; State and Commonwealth government departments; local councils as well as private industry.

The allocation of funds by the Commonwealth government to institutions participating in the native title system has a direct impact on the level of protection extended to native title. From a human rights perspective, it is essential that the organizations whose function is to ensure the recognition and protection of native title and the participation of native title parties in economic development of their land are properly funded.

The allocation of funds in the Federal budgetary process has not apportioned sufficient funds to the representative bodies responsible for carrying out these functions. The inadequate funding of representative bodies relative to their statutory functions has had the cumulative effect of undermining their capacity to adequately promote and protect Indigenous interests in the native title process.

In addition, the distribution of funding between the institutions within the native title system is inequitable. In the 2001-2002 Federal budget, institutions whose primary function is not the substantive protection of native title, but rather the management of applications and agreements under the Native Title Act 1993 (Cth) ('NTA'), have been funded significantly more than representative bodies. The result of this inequitable distribution is that the priorities of those institutions with relatively greater funding now dominate the native title system.

One aim of this chapter is to show how the inadequate funding of NTRBs and the inequitable distribution of funds between organisations in the native title system impacts upon the protection of native title and the participation of Indigenous people in the native title process. A further aim is to develop benchmarks based on human rights principles to guide the allocation of funds between the institutions that constitute the native title system. These benchmarks will also be relevant to fiscal decision-making on Indigenous issues generally.

Distribution of Funding within the Native Title System

Budget Allocation

The following tables show the distribution of funding in the native title system:

Federal Government Funding to ATSIC for Native Title Representative Bodies, 1996 - 2002

Table 1: Funding for Native Title Representative Bodies

[all figures in 000s]

The following should be noted in relation to Table 1:

• Government appropriations for NTRB funding, which passes through ATSIC, have remained roughly constant at $43 000 000 since 1997-98 until the present (2001-2002) budget (see tables below). ATSIC has also provided additional 'top up' funding from its Global Allocation fund, at the expense of other priorities;
• The above figures represent ATSIC funding to Representative Bodies (from direct government appropriation and ATSIC top-up). This is less than total ATSIC native title funding, which includes amounts spent by ATSIC itself on advocacy, information etc. For example, ATSIC native title funding for 1996-97 was $43 161 for 1997-98: $ 46 737 and for 1998-99: $ 51 185
• The Torres Strait Regional Authority is funded separately. Torres Strait Regional Authority funding for native title matters in 1999-2000 was $1 682 000) and is $1 521 000 thereafter.

2001 - 2005: Increased Native Title Funding

Table 2 - Proposed increases to Native Title Funding for all Institutions

[all figures in 000s]

The following should be noted in relation to Table 2:

• The above table shows that the bulk of the $86 million increase in total native title funding has been directed away from the NTRBs to other agencies involved in native title matters, namely the Attorney-General, the NNTT and the Federal Court. Furthermore, the funds allocated to ATSIC have been quarantined away from the NTRBs (at least in regard to funding native title claims).
• While the increase in native title funding has been described over four years, the funding is to be reviewed prior to 2003-04 Budget.
• It has been difficult to obtain exact figures regarding the funding increases as different figures have been published in each of the Minister for Aboriginal and Torres Strait Islander Affairs Portfolio Budget Statements, the Attorney-General Annual Reports and the National Native Title Tribunal Annual Reports.

The following tables break down the increases in funding for each agency.

Table 3 - Increased Native Title Funding for ATSIC

[all figures in 000s]

The following should be noted in relation to Table 3:

• These funds are part of the $86 million increase in funding to all institutions in the native title system, to be provided over four years;
• Most of the extra funding to ATSIC is specifically for a national capacity building program for representative bodies. The rest is intended to fund a number of strategic test cases under the Priority Claims Litigation Program. All of this funding will be held and managed by ATSIC, not by the NTRBs;
• The capacity building program is to be a national program that will target corporate governance, management development, native title technical training and information technology.

Table 4 - Attorney General: Funding for non-claimant native title applications

[all figures in 000s]

The following should be noted in relation to table 4:

• These figures were provided by the Attorney-General's Department, but are approximate only.
• The Attorney-General provides funding to respondents to native title matters and provides financial assistance to the state and territory governments

Table 5 - Total Federal Court spending on Native Title [7]:

[all figures in 000s]

Table 6 - Funding for National Native Title Tribunal

[all figures in 000s]

The following should be noted in relation to Table 6:

• Again, figures vary depending on the Report cited. I have taken the figures from the Attorney-General's Annual Reports.

These figures display an imbalance in the distribution of funding within the native title system. When the relative funding of these institutions is correlated with the nature and extent of each institution's responsibilities with regard to native title, the funding bias towards institutions whose responsibilities are not primarily the protection and recognition of native title becomes even more apparent.

Representative bodies

The representative bodies are one side of the native title equation. They have been described as the 'engine room' of native title because they deal with all institutions and processes relating to native title in any particular area and are obliged to represent and assist the Aboriginal and Torres Strait Islander people in their areas in all of the following ways [10] :

• in making native title applications
• in responding to future act notices
• in negotiating agreements relating to native title
• in certifying applications to register Indigenous Land Use Agreements
• in negotiating rights of access
• in any other matters relating to native title or to the NTA's operation

At the same time, of those institutions in the native title system dependent on government funding, only representative bodies have the substantive protection of native title interests as their primary function. While a representative body may determine the priority it gives to performing its functions, 'it must give priority to the protection of the interests of native title holders.' [11]

The protection of native title and the participation of Indigenous people in the native title process depend upon the effective functioning of representative bodies. Where sufficient funding is not provided to representative bodies to effectively carry out their functions, or where the funding is insufficient to meet the pressures on native title processes, including those pressures created by other institutions with greater funding and whose goals are not exclusively the protection of native title, the protection of native title interests and the participation of native title holders in the native title process will not be fully achieved.

The Federal Court

In contrast to the representative bodies, the role of the Federal Court is not explicitly directed to the protection of native title. In the Agency Budget Statements [12] the Federal Court's primary objectives are defined as 'apply and uphold the rule of law, to deliver remedies and enforce rights and in so doing, contribute to the social and economic development and well-being of all Australians'. This objective is ostensibly measured through the attainment of a series of disposition targets for the various categories of cases. The Federal Court's goals and disposition targets in relation to native title cases have been described in following way:

The Federal Court reported that it aims to ensure 'that the native title cases will be managed, heard and determined in a timely and appropriate manner'. The Federal Court told the [Australian Law Reform] Commission that following consultations with participants at user group meetings it has set a goal of three years to dispose of all the native title cases currently before the Court. This is a goal. It is not intended to be prescriptive. Not all participants agree with it. There are concerns that such a goal could limit opportunities for effective mediation in the NNTT.

In fact the three year disposition target for native title cases may not encourages its stated objective of 'applying and upholding the rule of law, delivering remedies and enforcing rights and in so doing, contributing to the social and economic development and well-being of all Australians'. [13] In fact, the three year disposition target compounds some of the problems associated with the relative resource restrictions experienced by representative bodies, and to that extent at least, the Federal Court's stated aims disadvantage native title parties and are contrary to objectives of the representative bodies.

While Justice Beaumont has commented that the three year disposition target for native title matters was aspirational rather than mandatory, [16] anecdotal evidence that the Federal Court is generally unwilling to adjourn native title cases suggests that these quantitative performance indicators in fact significantly adversely impact upon the management of native title cases for representative bodies.

In addition, the level of funding provided to the Federal Court for processing native title claims is disproportionately high when compared to the funding provided to the representative bodies for all of their functions. An additional $5.315 million is being directed to the Federal Court for the 2001-2002 budgetary period, yet representative bodies have not received proportional increases, with an increase of only $2.9 million being directed to ATSIC for the purpose of NTRB capacity building programs only.

This disproportionate allocation of funds will enable the Court to continue processing native title matters at the current rate, if not faster. [17] Under the original NTA, a native title claim only entered the Federal Court if it could not be settled by the NNTT [18] or there was an appeal from a NNTT decision, for example on a future act matter. [19] This meant that when the Court first received a native title matter, the parties and issues were prepared for hearing. Under the amended NTA, a native title claim must be filed with the Court as the initial [20] step before anything else occurs: before it is registered, before it obtains any procedural rights, and before the NNTT has attempted a mediated settlement. Under this new procedure, when the Court first receives a matter, the native title claim may have been filed for purposes other than a hearing. It will further entrench the effect that the Federal Court's disposition targets are directing the native title system, while those institutions whose object is to protect native title, the representative bodies, are forced to operate in response to Federal Court objectives rather than the priorities that they might otherwise set.

These problems are further compounded by the fact that the amendments to the NTA require that native title claimants commence Federal Court proceedings, not only to obtain a determination on an application for native title, but also in order to secure procedural protections in relation to future acts. [21] The result is that the timeframes imposed by the Federal Court's approach to managing its caseload have a direct impact on the way in which representative bodies must prioritise the functions they are required to perform.

The nature of this impact on the protection of native title was explained by Darryl Pearce, Chief Executive Officer of the Noongar Land Council before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund during their Inquiry into Indigenous Land Use Agreements (the 'PJC Inquiry') [22] :

The other thing is that the extra money that has come in has encouraged the federal court to start to increase their case loads and bring their cases on earlier. So when rep bodies go in and say, 'We don't have the resources to be able to do what we are required to do in the period of time. Can we get an adjournment or can we now mediate interstate?' the courts say, 'No, you will go to court at the same time.' A federal court is very comfortable because it actually has tens of millions of dollars extra in resources. The rep bodies do not have the same money, even though they are required to be there.

Take my example: a $1.3 million per annum rep body that is supposed to support the rights and interests of 30,000 Noongar people - it is probably the largest cultural block in Australia - and which has six native title claims, against the resources of a billion dollar state and the Federal Court, which has tens of millions of dollars to actually run these claims. That balances up the inequity that goes with those processes. So it is a bit unnerving, coming from a land council reasonably well resourced to be able to carry out things under the land rights act, to actually get into a situation where people are absolutely desperate at the moment. [23]

It is clear that representative bodies are not resourced to meet the three year disposition target set by the Federal Court for native title matters as well as carry out their functions in relation to agreement-making and other functions. As at 9 October 2001 there were 618 native title determination applications in the Federal Court system [24] , and the majority of these are represented or assisted by NTRBs. It is also clear that native title claims are being pushed into the expense of litigation even where the opportunities for mediation have not been exhausted. For instance, in New South Wales at 9 October 2001 the Federal Court had allocated 95% of native title determination applications for hearing even though 50% of them were still in mediation. [25]

The threat to the protection of native title interests as a result of the under-resourcing of representative bodies and their consequent inability to meet the targets of the Federal Court was an issue discussed by representatives of both the Federal Court and the NNTT before the Senate Estimates Committee on 28 May 2001.

Senator Bolkus - Does that lead us to the problems that the community land council had with the Wilinggin claim, which I think was dropped by the Federal Court? You [the NNTT] are obviously feeling the need for extra resources, and you are getting them, but we have always anticipated that land councils would also have an enormous need for extra resources to process these claims. They requested a third adjournment, and so requested because of the lack of funding, lack of resources, but it was knocked back. Have you contemplated what that means, and whether you could talk to the Federal Court about somehow coordinating their activities as well?

Mr Doepel [NNTT Registrar] - The concept of interdependence of the parts of the native title system has been a matter that has been discussed by the key agencies for some time. In fact, our president in the prelude to the annual report last year actually puts this concept out in black and white. We have a range of liaison mechanisms with the court, including the president periodically taking part in the native title coordination committee of the judges where these overall pressures on the system - on everybody in the system - are discussed. I certainly with my colleagues, Mr Soden and other officials, and Mr Chevis and others are dealing with the program administrative officers. At the end of the day, I think that the court is probably the better place to speak about this. We are looking at overall coordination in a strategic sense and the exercise of individual judges and, in our case, members' discretion to manage their lists as they consider appropriate and looking at the merits of the case. We are aware of these problems, and it is a matter of general discussion amongst the institutions as to what the implications are for refusing to vacate dates or, in our case, insisting the mediations continue according to the program.

Senator Bolkus - You can see the problem. If there is an influx of cases in one council area and they have got to run those cases -

Mr Doepel - I think that is a fair point. We have not disguised our comments in the past, that you would meet three or four matters in formal litigation before the court where mediation has had to cease for some reason, and that would effectively take a council out of a whole range of other native title activities. I think that is surely a fair point. [26]

The comments by Mr Doepel indicate that the NNTT considers that the priorities of the Federal Court are directing the native title process away from mediation. Representatives of the Federal Court were asked similar questions about the disparity of funding and the difficulty of representative bodies to meet the court's targets:

Senator Bolkus - I must refer you to the case involving the Kimberley Land Council. I think that right at the start of this process there was an appreciation that the new legislation, new notices, provisions and so on would immediately lead to extra resource demands on the court, on the tribunal and also on land councils. We have had the Wilinggin claim [27] arising from the Kimberley knocked back by the Federal Court, a request for an adjournment being knocked back and I think it might have been a third request. I think there is an appreciation that, because of the increased workload, land councils may not be in a position to resource adequately all applications that they have to run. Is that something that you are talking to the Native Title Tribunal about in terms, for instance, of trying to have a policy or guidelines for staggering native title cases before the court?

Mr Soden - Yes, we do and we take our action as well. The funding which has been provided to us and to the tribunal is part of a broader allocation of funding, some of which has gone to ATSIC, which is, as I understand it, for further resources for the representative bodies, therefore the land councils. Those amounts were calculated having regard to the tribunal's and the court's calculations of what matters were likely to come on and where in the future. So I believe that ATSIC now has information that will help it make those informed funding decisions which will help the land councils. We are very alive to the difficulties of the land councils and their funding situations. We are also alive to some of the ways in which decisions are made concerning land council funding and which applicant or group of applicants might receive funding support. There has not yet been an occasion where the court has proceeded to force on a hearing where applicants have not been funded. However what we have found is that a gentle approach of not removing the hearing date has produced the result that ultimately funding has been found for the applicants and the trials have been able to proceed in a properly prepared fashion. We have yet to get to the question of whether the court would force on a matter where an applicant is not funded - importantly, that issue has not arisen. [28]

While the 'gentle approach' described by Mr Soden may indeed result in cases being ready for trial as and when required by the Federal Court disposition targets, this approach fails to recognize the costs of forcing the NTRBs to direct their limited funding into litigating claims. The effect of the Federal Court enforcing its disposition targets in this way is that the native title process is directed towards a very expensive and time consuming process and away from other priorities. It is also unsatisfactory for the Federal Court to rely on the approach of 'not removing the hearing date has produced the result that funding has been found for the applicants'. Such an approach relies on ATSIC or Commonwealth 'one-off' funding being granted for particular proceedings where NTRBs have insufficient funds to conduct the hearing. For the system to depend on such a procedure undermines planning and prioritising and also exposes NTRB's to potential liability if a future proceeding doesn't obtain 'one-off' funding.

Mr Soden again commented upon the distribution of native title funds to the Federal Court at the Federal Court - Native Title Representative Body Forum held on 10 October 2001 in Adelaide. [29] Mr Soden, described the evaluation process, which led to the allocation of funds in the 2001-2002 budget and indicated that when estimates of resource needs based on actual case/workloads for additional funding for native title were put forward and considered by several government departments (including the Department of Finance, Prime Minister and Cabinet and Treasury) it was assumed that all organisations in the native title system would get additional resources from the new funding provided. [30] He agreed however that this did not eventuate in relation to representative bodies, and that additional funding was not evenly distributed in this process. [31]

The potential consequences of the native title process being driven into litigation were described by the Noongar Land Council to the PJC Inquiry:

To run a native title claim is somewhere around $2 million to $3 million, simply because you have to go through land titles. There is far more that you have to do: you have to search literally every land title that has ever been put into existence, and identify how it was issued and whether it was valid or invalid through that whole process…..

The main thing is that there is a concertinaing of the court cases. If it continues the way it is going, there will be an absolute political nightmare. If you were to take some 100-odd native title claims and try to concertina them into the Federal Court judges available and the appeals, including the appeals up and on their way to the High Court, good luck, guys. We are going to be in court for the next 18 odd years just on one claim alone. So if you take a native title claim and it is successful through the court process, which could potentially take up to three years, then there is the appeal, then there is the reappeal to the High Court. Miriuwung-Gajerrong came down in ߉ the potential is that the High Court may refer some of it back to the Federal Court to redo. Potentially, we may not actually see anything until the end of 2010, because if it goes back to the Federal Court and is re-fed back through the system it will continue to do it all over again. The resources to do all of that is the other issue. There is not a calculation of that. [32]

The cost of litigation is also affected by the fact that native title cases are conducted, in this stage of the native title process, as test cases. The PJC Report states:

[R]epresentative bodies have litigated native title applications in the Federal Court and the High Court in what could be described as a test case period which has required significant resources. The Kimberley Land Council for example has sold assets and retrenched a fifth of its staff in order to be able to represent claimants in court cases. [33]

The Australian Law Reform Commission made the following Recommendation [34] in relation to the Federal Court's management of native title:

The Federal Court should continue to facilitate meetings between representatives from the Aboriginal representative bodies, Federal government, State and Territory governments, Federal Court and National Native Title Tribunal to discuss the expected time frame for resolution of native title claims and ways to manage the cases so as to meet the agreed timetable.

I endorse this recommendation and also recommend that such meetings be used to formulate regional plans for the management of native title determination applications which take into account the strategic plans of the NTRBs in that region.

The National Native Title Tribunal

The functions and objectives of the NNTT are also distinct from those of the representative bodies in that they do not seek to maximise the level of protection extended to native title or maximise the participation of Indigenous people in the native title process. They are defined by s108 and s109 of the NTA and include functions in relation to native title applications, inquiries, and native title determinations, mediation, research and assistance.

The Tribunal's 2000-2001 Annual Report identifies the recognition and protection of native title as its only outcome. However, in view of the performance indicators used to measure its achievement, the outcome may be better described as providing a procedure for recognition to occur, with the Tribunal acting as a facilitator in this process, rather than the goal of achieving substantive recognition itself.

The achievement of the Tribunal's stated outcome (the recognition and protection of native title) is described according to four output groups; registrations, agreement-making, arbitration and assistance, notification and reporting. [35] The output groups are measured according to quantitative, qualitative and resource usage performance measures.

The performance measures used for the first of these output groups, the registration function, are:

• quantitative - the number of applications processed for registration;
• qualitative - the percentage of registration test decisions made within two months of receipt of the application; and
• resource usage - resource usage per registration.

These performance measures for 'registration' do not refer to whether native title was recognized or protected through the application of the statutory registration test. As shown by the table reproduced below, [36] they merely show the number and the rate at which applications for registration were decided.

Measure Target Result Main influences affecting result Quantity 255 153 Conditions in the Northern Territory Quality 70% decided within 2 months of receipt Exceeded - 89.7% processed within 2 months at an average of 1.5 months Tribunal processes now well established Resource usage Unit cost per registration test - $12,205 Unit cost was higher - $16,558 Set-up costs, particularly in the Northern Territory

Similarly, the performance measures for 'agreement-making' (the number of agreements registered, client satisfaction and resource usage) do not themselves disclose whether the activity resulted in the recognition or protection of native title. These are reproduced in the following table: [37]

The performance indicators used to determine whether native title has been recognised and protected as a result of the activities undertaken by the NNTT are not developed within a human rights framework where the substantive protection of native title is a primary objective. Rather they are developed in order to improve the mechanisms by which native title processes can be facilitated. The qualitative performance measure for 'agreement-making' is 'client satisfaction'. Yet 'client satisfaction' is based on the satisfaction of 'peak bodies from mining and local government; State and Commonwealth agencies; native title representative bodies; individual native title claimants; businesses engaged in mining; development and environmental consultancies; individual local governments; large commercial developers; pastoralists; environmental non-profit groups; various elected officials at all levels of government; and lawyers and consultants working in native title.' [38] As a performance measure, this aggregated 'client satisfaction' cannot be said to measure the protection of native title. The performance measure suggests that the Tribunal is less concerned with native title parties' satisfaction in having their native title recognized, than in the satisfaction of all stakeholders with the process.

The quantitative performance indicators also fail to measure protection of native title. They merely state the number of agreements made, not the number of agreements that either protected or failed to protect native title.

Failure to fund the representative bodies consistently with their statutory responsibilities

The key to the just and efficient working of the native title process allocating funds so as to reflect the importance of protecting native title interests and involving native title parties in decisions over the development of their. This means funding representative bodies so that they can perform their statutory functions to a high level.

The fact that representative bodies are not adequately funded to carry out their statutory functions has been observed in a number of native title reports and inquiries in the past twelve months. These include:

Report to the Government of Western Australia of Review of the Native Title Claim Process in Western Australia

The Report to the Government of Western Australia of Review of the Native Title Claim Process in Western Australia ('Wand Review') [39] observed that the ability of the native title applicant to participate effectively in negotiation and mediation depended on the resources available to the native title applicants, and in particular to their relevant representative bodies. The Review commented:

Resource shortages loom as the primary impediment to a timely resolution of native title applications in Western Australia… [41]

NTRBs face costly and unique resource demands in providing assistance to the negotiation and mediation of native title applications. The processes involved are resource intensive (such as the preparation of Connection Reports, determining the objectives of the native title applicants, advising them and receiving their instructions and providing for the attendance of native title applicants at meetings). [42]

The Review is concerned that representative bodies are not adequately resourced to carry out their functions in relation to the resolution of native title applications in anything like the time frames targeted by the Federal Court. Such a situation can only constrain the process of dealing with native title applications, whether by agreement or otherwise…

…NTRBs in Western Australia … are unlikely to be in a position to fund the levels of activity necessary to progress the negotiation and mediation of the number of applications that the other parts of the native title system are capable of processing. It is therefore likely that the current funding of NTRBs will become a significant constraint on the resolution of native title applications in Western Australia within a reasonable timeframe. [43]

The major concerns of the Review were the capacity of representative bodies to represent the interests of native title parties in determinations and negotiations and the effect of the inequitable distribution of funds between institutions in the native title system. The Review stated:

The chapter also identifies likely funding shortages in NTRBs as a weak link in the native title system. … There also appears to be a funding imbalance between NTRBs and the NNTT and Federal Court who have just received increased levels of Commonwealth operational funding whilst the NTRBs have not received finding to deal with current let alone projected workloads (Parts 8.4 and 8.5).

The Review recommended: [44]

1.1.8 Action from the Commonwealth to redress this imbalance is recommended. If this is unsuccessful, it will be necessary for the Government [Western Australia] to consider supplementing NTRB budgets as part of a strategic approach.

1.1.19 To ensure a strategic approach, a Government [Western Australia] audit of all native title applications and a summit to determine the capacities and intentions of all elements of the native title system is recommended. The provision of adequate funding by the Commonwealth and the role of the Federal Court will be crucial to the success of this initiative.

I endorse those recommendations and call for their implementation.

Inquiry by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund into Indigenous Land Use Agreements [45]

The Inquiry into Indigenous Land Use Agreements by the Parliamentary Joint Committee on Native Title (PJC Inquiry), extending from 17 April 2000 to 6 August 2001, details the resource difficulties which prevent representative bodies from participating fully in ILUAs and other agreements in relation to native title land. In summary, the Committee found:

There is overwhelming evidence that representative bodies are not receiving adequate funding to enable them to assist the negotiation of ILUAs within the timeframes proponents require or prefer. [46]

The Report of the PJC Inquiry exposed a high level of frustration concerning the native title process, not only by the representative bodies but also by those dealing with representative bodies in negotiating agreements. These include industry, local government and state governments which are impeded in their efforts to promote or engage in economic development as a result of the inefficient operation of native title processes. Much of this frustration was attributable to the under-resourcing of NTRBs.

Even more telling were the testimonies depicting the frustration of working in or being represented by an organisation which does not have the resources to ensure that the native title process works to the benefit of Indigenous people. The following evidence before the PJC Inquiry is indicative of this despair:

Once again people are required to wait. People are required to put off their claims. People are required not to proceed with the investigation because they just cannot afford it….

There is a complete lack of reality in terms of the theoretical views of the legislation and the Native Title Act, and a lack of appreciation of its applications. Representative bodies have been grossly underfunded and I am referring to completely independent figures that have been presented. There is a level of cynicism in the way in which the budget is presented in that it has no connection to reality in what happens with representative bodies. There has been no consideration of establishing prescribed bodies corporate… [47]

At the end of the day, when there is a determination or an agreement, it is not the representative bodies who are going to be held accountable or responsible. There will be a community of native title holders, and whatever legal entity is established to facilitate, look after and protect their interests will have the say at the end of the day. [48]

The CEO of Noongar Land Council reflected on the loss of protection to those claims that the funds couldn't support:

In terms of the new budgetary money that is coming in [in the 2001 - 2002 budget], ATSIC is being forced to make some arbitrary decisions. The arbitrary decision we have made on this basis is that certain claims are going to have to drop out of the system, simply because there is no money available. We just cannot afford them. What will happen is that someone is going to make a decision to say that claim A has far more relevance to far more people than claim B, even though they are both entitled to the recognition of native title rights. That is a decision which is being forced on the groups. I am not aware whether or not there is an implication in terms of natural justice throughout that whole process. [49]

The Kimberly Land Council representatives gave evidence that, as a result of under funding, they were forced to focus on progressing claims through the Courts at the expense of negotiating agreements related to developments on native title land. Even then they were forced sell some of their assets in order to fund litigation. They also discussed staff redundancies directed to those staff not integral to the litigation strategy adopted. They expressed concern at the way in which resource difficulties limited the benefit that Indigenous people were able to get from native title:

We cannot concentrate a proper and fair effort in representing people. We are left in the position of having to ask those resource companies to provide the funds in order for us to fulfil our statutory obligations of ensuring that the right claimants etcetera are appropriate. … So it is certainly something that needs to be looked at not just from the ATSIC level as to funding but also from the government's position as to what they want us to do, what they want Aboriginal people to do. Do they want us to continue litigation or do they want to settle these matters? The result is that we have a budget to operate and we burn it up with consultants, lawyers, anthropologists, and so on in conducting litigation. [50]

Representative bodies in Gurang Land Council, Queensland, reinforced the overwhelming and oft-repeated refrain over resources:

I do not mind saying that we have been underresourced for the last five years. Our budget to deal with all these native title claims is approximately $1.8 million. It has been that for the last three or four years, even though our workload has gone up 100 per cent. We do not have the resources; we do not have the physical manpower. We rely on external consultants to a greater degree, but that in itself, with prioritisation now, is just impossible. [51]

These are just a few testimonies to the difficulties that those working on the ground face in seeking to make native title work for Aboriginal people. The Inquiry provided a valuable forum for the telling of these stories and made two valuable recommendations to increase the funding to representative bodies and prescribed bodies corporate. The Committee's recommendations 4 and 8 state: [52]

4. That more financial resources should be made available to native title representative bodies for the negotiation of ILUAs.

8. That prescribed bodies corporate receive adequate funding to perform their statutory functions and that they receive appropriate training to meet their statutory duties. This training to include director's duties, accounting procedures and land management.

I endorse these recommendations and call for their immediate implementation.

Love-Rashid Report

The 1999 Love-Rashid Report [53] was commissioned by ATSIC in 1999 to review the performance and resourcing of NTRBs. It noted that prior to the 1998 amendments to the NTA, representative bodies were insufficiently resourced to perform even their more limited pre-amendment role as a filter through which only merit-based claims would be accepted. [54] However, since the amendments to the NTA the statutory functions of representative bodies have increased. So too have the number of native title claims and agreements within the system. The review found that representative bodies were not sufficiently resourced to achieve the increased functions required of them as a result of the amendments:

In the Consultancy's view, the accountability measures, the compliance requirements, the objective governance requirements and the grant requirements are together designed to operate to ensure that each NTRB be an efficient, well ordered and well run expert organisation. That cannot be achieved with the present level of support available to them. [55]

The Love-Rashid Report also cited as a major problem the number of future act notifications requiring immediate response from already stretched:

Given the deluge of future act notifications received by some NTRBs, circumstances may well arise where there have been insufficient resources available to examine a future act proposal to be able to say with any certainty what the effect on native title might be, or what the strength of any claim to native title (relevant to that notice) might be. If the NTRB cannot break the cycle of immediacy, it will lose its ability to prioritise between its functions and ultimately lose its capacity to satisfactorily protect native title. The desire to protect native title will lead to oppositional management practices in many circumstances. [56]

While the Love-Rashid Report is supportive of the representative bodies' pursuit of more resources, the Report has been used to support an argument by the government that representative bodies are poorly managed rather than poorly resourced. The Attorney-General's submission to the PJC Inquiry stated that the Parker Report and the Love-Rashid report:

…have also identified poor management structures and the lack of available managerial expertise as significant limitations on effective operation of NTRBs in the performance of their functions. Both reports recommended increased organisational and administrative expertise within NTRBs as necessary factors for improving their performance. [57]

It is clear however, from reading the Love-Rashid Report as a whole, that the critical factor identified as preventing representative bodies from carrying out their statutory objectives was financial resources.

It is the Consultancy's view that NTRBs are made up of dedicated staff. If NTRBs are not adequately funded they will not merely 'under perform'. They will spiral down into a cycle of immediacy:

• deferring strategic decisions;
• externalising costs;
• forgoing opportunities for negotiation and settlement;
• only dealing with that which demands attention at any given moment; and

• take on roles which deliver achievements as best they can. [58]

The report recognises that without proper funding, the possibility of representative bodies adopting a strategic proactive approach to managing their work, rather than a responsive, oppositional one, is very limited. The first recommendation of the Report is in relation to funding of representative bodies and states:

That NTRBs be funded so that they have the capacity to fulfil their core functions, prioritise between competing service demands of their constituents and maintain appropriate standards of corporate governance.

I endorse this recommendation and call for its implementation.

Funding fails to recognise critical factors

On the basis of the reports and inquiry surveyed above, it can be seen that the present allocation of funds to Native Title Representative Bodies fails to take account of the following factors:

• The cost of the amendments to the NTA;
• The relationship of the component parts of the native title process; and
• That representative bodies facilitate the interaction of two different systems of law.

The cost of the amendments to the NTA.

The amendments introduced a number of new and resource intensive processes into the native title regime including:

• The substantial increase in future act notifications under Commonwealth and State regimes;
• The NTAA's increased emphasis on conflict resolution between claimants;
• The demands of the re-registration process;
• The increased demand for ILUAs and other agreements effecting native title; and
• The increased accountability requirements of the NTAA; and
• The re-recognition process.

The Love-Rashid Report commented on the resource implications of these amendments as follows:

The legal and practical environment within which NTRBs operate has been fundamentally changed by the NTAA and case law developments referred to above. The resources provided to NTRBs must be reassessed so as to take account of [these amendments]…

An overarching consideration is that, whereas in the past the functions of NTRBs were to some extent discretionary, under the NTAA they can be mandatory. [59]

Despite the 1998 NTA amendments, there has been no proportionate increase in the funding allocated to representative bodies since the 1998-1999 budget. As confirmed in the PJC Report, 'the increase in funding of $2.9 million in the 2001-2001 budget is the first increase in native title funding to ATSIC since the 1995-96 financial year.' [61] Yet this modest increase in funding is not available to NTRBs for performing their statutory functions but is to be administered through ATSIC for the purpose of implementing a capacity building programme.

I will comment on the resource implications of just some of the amendment provisions outlined above.

Increasing future act notifications

The amendments to the NTA provided for state and territory governments to introduce statutory alternatives to the future act provisions of the NTA. While trying to establish such regimes, many state and territory governments so delayed the commencement of the right to negotiate provisions in their jurisdictions, that they are now faced with substantial backlogs of future act applications. These states and territories have now begun processing their 'backlogs', all of which are required to be dealt with according to the right to negotiate process (or alternative state regimes). The administrative practices adopted by some state governments has greatly complicated the processing of future act backlogs as discussed in chapter XXX herein. [63]

Some of those giving evidence before the PJC Inquiry on behalf of representative bodies commented that the irregular and haphazard issue of future act notices by state and territory government departments and the failure to involve representative bodies in the management of this process greatly increased the cost of responding to such notices. This was complicated by the cost of notifying remote and geographically dispersed communities of the proposed future acts. [64] The way in which this practice affects the level of participation of Indigenous people in decisions affecting their land is discussed in chapter XXX of this report. [65] Of concern in this chapter are the resource implications of this and similar practices for representative bodies.

The Registrar of the NNTT, Mr Doepel, recognized the difficulties created for representative bodies by the haphazard issue of future act notices in the Northern Territory at the Senate Estimate Hearings on 28 May 2001. At this forum Mr Doepel suggested that the clustering of notifications according to regions would improve the efficiency of the system and decrease costs for representative bodies:

Senator Bolkus - I suppose this question goes both to here and to Western Australia, which I will get to in a second. From your experience, do you have any suggestions that you are able to discuss with the Northern Territory government? Is there a process to raise suggestions with them as to how to issue notices and which areas and so on?

Mr Doepel - We are in constant discussion with Territory officials, but ultimately it is their prerogative under their government's directions to have the sequencing that they will adopt. While we do convey some views about the overall management of the notice issue, the pattern has been as Mr Chevis has described. It is not clustered and it does lead to, I think, quite a bit of work on people's part to respond to that pattern of issues. I might add, though. That the rate of issue in the Northern Territory of roughly 16 a fortnight is appreciably far less that the rate of issue that we had several years ago in Western Australia where we had up to 200 at a time being issued every fortnight. So there are some interesting comparisons of scale.

Mr Bolkus - In terms of clustering to do it better, how would you cluster?

Mr Doepel - I hesitate to speak on behalf of Territory officials, but if you were looking at the overall map, as Mr Chevis has just described, we have got 800 backed up tenement applications. You could possibly divide the Territory up into a grid and you would have this group up here and that group next to it, and then the groups adjoining. What happened, particularly in the first issues, was that you had some at the top, some at the bottom and some in the middle. Some of these licenses I think are over very small areas - they are what is called in the game 'polygons' simply the tenement are that the explorer or miner wishes to deal with - and they appear in many instances as small geometrical patches on the map. In the case of one of the land councils, they have decided, 'Well, we will anticipate future issues and we will broaden up the claim area so you do not have to claim again when another polygon is put out on notice within the vicinity.' [66]

The other major concern regarding the administrative practices adopted in the issuing of future act notifications is the ambit use of the expedited procedure under Section 32 of the Act for all exploration or prospecting leases. [67] This process, combined with the NNTT's stated position that it will not hear objections to the application of the expedited procedure unless representative bodies provide comprehensive information when objecting to expedition, adds significantly to the costs incurred by representative bodies in responding to future act notices:

[I]t means that if native title holders are to have the right to negotiate they have to lodge an objection and be involved in a preliminary hearing, and the time and resources which that takes, just to get the right to negotiate. If their objection is successful, then their actual right to negotiate process flows. So the procedures that the tribunal is empowered to bring in, to organize the conduct of the matters before it, are new procedures they have introduced without consultation with any parties, native title holders or otherwise, with respect to how these objection procedures should work. For example they require the locating of sites on the documentation that is filed with the actual objection. That is a separate question from the actual hearing of the matter when you have to establish, for example, there is a site there that may be affected. This is actually the production of the evidence when the objection is lodged, not during the course of the hearing.

Given that it is an expedited procedure, if you recall the matters that I referred to earlier about how there is often not a tradition of research - although there is some with respect to sites - it is simply impossible with the existing resources to be able to do that in the incredibly short time frames involved. Again it is very resource intensive. [68]

The cost of the increase in the number of future act processes under the amendments and the state practices adopted to administer these processes means, on their present funding, representative bodies are not able to respond to future act notices so as to ensure maximum participation of Indigenous parties in the native title process.

Increased demands of the registration test

The 1998 amendments substantially increased the requirements for registration of native title claims. However, there has been no recognition in budget allocations that the increased demands of the registration test [69] would be particularly resource intensive for representative bodies in the two or three years after the amendments in September 1998.

In relation to the registration test, representative bodies are now required, among other things, to organise meetings to determine authorisation, resolve disputes between Indigenous parties to ensure that there are no overlapping claims, retain and fund anthropologists to show, on a prima facie basis, a connection to the claim area, and gather affidavit evidence about the nature of the claim and the extent of the claim area. The Parliamentary Joint Committee commented upon the resource requirements of the registration test as follows:

[R]epresentative bodies have committed a significant proportion of their resources to the re-registration of native title determination applications and mediation of intra-Indigenous disputes. Registration is a threshold issue and ILUAs have accordingly taken a secondary priority for representative bodies. [70]

The failure to allocate additional funding to support the registration of native title claims in the three years following the amendments has meant that some native title parties have simply missed out. This has been particularly noticeable in New South Wales after the amendments were enacted, where a strategic decision was made by the representative body, the NSW Land Council, to withdraw many applications for determination and registration and devote scant resources to prioritizing those claims that could be immediately progressed in the Court.

Increased accountability requirements

Part 11, division 5 of the amended NTA substantially increases the accountability requirements of the representative bodies. Yet there has been no increase in representative body funding to enable them to properly comply with the increased requirements. Mr Vincent, representing the Western Australian Aboriginal Native Title Working Group, put the issue succinctly in his evidence before the PJC Inquiry:

Under those provisions, representative bodies have a plethora of responsibilities to a very high standard. They have to prepare strategic plans and present them to the minister for approval. They have to prepare annual reports to the standard appropriate for tabling in parliament. That includes sophisticated accounting requirements. There has to be compliance with the Commonwealth Authorities and Companies Act - which is known by the acronym CAC Act - and that includes aspects of finance and personal dealings on the part of committee members, directors and staff which have to be to a very high standard. I am advised that those standards are to the level that substantive government quangos, such as the ABC, have to comply with. They must meet the same level.

Two aspects emerge from those high standards. The first is a question of public confidence and the other is a question of fairness. On the public confidence aspect, if, as has been the case here, the Commonwealth parliament sees fit to devolve certain responsibilities of a statutory nature upon representative bodies, the public has a right to ensure that those bodies can carry out those duties to the high standards expected of them. Following on from that, we suggest that those bodies must be funded to acquit that public confidence properly and reasonably.

Peter has addressed you on the question of funding and the fact that there has been no real substantive increase in funding since, I think he said, 1󳌥..

There is also another aspect and that is the one of fairness. These representative bodies, comprise as you would know, community people, Aboriginal people, who sit on their committees and are chairpersons or hold office. These people are now subject to onerous provisions relating to such things as conflict of interest in relation to other aspects of their duties, prudential requirements and so forth. They are ordinary members of the community put into a particularly vulnerable position by a decision of the Commonwealth parliament. They do not resile from their position, but there is still the question of fairness that arises … that they have to be put in a position where they can adequately acquit their responsibilities and where they can get proper advice, proper systems in place, so that in the usual course of their dealings they are not going to be placed unfairly in a vulnerable position and then unfairly cop criticism from those many people unfortunately in our community who are very quick to seize any opportunity to criticise Aboriginal organisations and, indeed, Aboriginal individuals. [71]

Mr Vincent expressed a general concern among representative bodies that not only was the protection of native title compromised by the lack of resources but also that the failure to provide sufficient funding to comply with the increased accountability requirements for representative bodies was unfair to office bearers of the representative bodies, who could be personally liable where they were unable to carry out their functions.

Re-recognition of representative bodies

The re-recognition process initiated by the amendments diverted scarce resources away from representative bodies' core functions such as pursuing native title claims, registering claims and agreement making. The PJC Report on ILUAs recognised that 'this process was time consuming and resource intensive'. [72] The re-recognition process also had a profound impact on the morale and performance of NTRB employees. The PJC Report on ILUAs recognised that it 'created uncertainty for representative bodies and their staff.' [73] Gurang Land Council described the effect of the process on their organisation as follows:

We have gone through re-recognition. It has taken this land council 12 months to be re-recognized which is absolutely ludicrous. There were questions and processes that we went through which we were absolutely mystified by - the way the government and ATSIC were with this re-recognition process. They were forewarned by all the NTRBs throughout Australia that, had they gone down this road, it would stall native title and deliberately put offside a great many people - and this is the case in point...

We were totally uncertain of our future for almost 12 months. It was very hard, although full credit must go to our staff, who stayed loyal and stayed with the land council - most of them. We have tried to do the job to the best of our ability, to keep things progressing on behalf of the traditional owners. We understood the dilemma that councils, miners and developers were going to be placed in because of the uncertainty of certification. [74]

Even though the re-recognition process commenced in October 1998, there is still one representative body, Noongar Land Council, whose status as a representative body has not as yet been determined.

All these additional functions now required of representative bodies by the amended NTA require substantially greater resources than are currently allocated to representative bodies. The failure to fund the 1998 amendments to the NTA undermines the protection of native title.

The interrelationship of the component parts of the native title process.

Agreement making and determinations are the two pivotal parts of the native title process. These processes are complementary. The determination process enables the traditional owners in a particular region to be legally recognised as the native title holders of the land and agreement-making enables the participation of those title holders in the economic development of their land.

In many cases representative bodies do not have the funds to conduct both processes simultaneously and must choose between these otherwise interrelated processes. Where agreements are pursued without progressing the claims process, the funds are directed away from giving native title holders title over their land. Where litigation or consent determinations are pursued leaving no capacity to negotiate agreements, native title parties are denied the opportunity to obtain immediate benefits from their land.

At the Kimberley Land Council a conscious decision was taken to use its limited resources to pursue claims over and above the negotiation of agreements. The implications of this decision are outlined in evidence before the PJC Inquiry:

Mr Gunning - The other area where the effect of the redundancies has been felt is in our capacity to deal with matters like the town based future act matters in Broome. Some of the matters that the shire may have raised with the committee this morning would fall into this category. Because legal and other resources have been forced into the litigation of claims, we have not been able to devote to the town based future act matters - quite significant local developments; we are talking about things like the airport and the Broome power station - the resources that are necessary to ensure that the claimants' interests are properly represented.

Chair - In relation to the power station, it was even a greater tragedy. Isn't it now the case that the developer has withdrawn all negotiations and has gone somewhere else altogether.

Mr Gunning- They are looking for another site…. [75]

The PJC Report on ILUAs noted that many representative bodies were unable to engage fully in the agreement making process due to insufficient resources.

Virtually all representative bodies indicated that they did not have sufficient resources to assist the negotiation of ILUAs within the timeframes desired or required by proponents. For example, Central Queensland Land Council said that its resources would only allow it to hold annual meetings of native title groups for purposes of authorizing agreements within its region. Where proponents wished to pursue agreements more quickly, the Land Council was seeking to recover costs of doing so from the proponent. The Western Australian Aboriginal Native Title Working Group, which is a federation of Western Australian representative bodies and ATSIC representatives, noted that its members were also seeking to recover negotiation costs from its proponents. [76]

The PJC Report comments upon the frustration felt by industry, local government and state governments which are impeded in their efforts to promote or engage in economic development as a result of the inefficient operation of native title processes. The Minerals Council of Australia, [77] Rio Tinto and the Australian Pipeline Industry Association all noted that the failure to fund representative bodies adequately resulted in proponents being required to contribute to the costs of negotiations which involve native title.

In a number of instances, we have actually provided resourcing to the other parties so that there is equity in the negotiation - in addition to resourcing provided from the government source. It is not something we like to do but, again, it has to do with time lines and time frames. By providing the additional resources, we get things done in that critical path I referred to before. [78]

The trend of representative bodies relying on the proponents of a project to provide funding to enable the native title parties to negotiate an agreement with them, was seen by some witnesses before the PJC Inquiry as a source of conflict, which gave proponents the upper hand in negotiations. The Kimberly Land Council representatives stated that:

We are left in the position of having to ask those resource companies to provide the funds in order for us to fulfil our statutory obligations of ensuring that the right claimants etcetera are appropriate. That is just not right in that, on the one hand, we are dealing with a company on a commercial basis to talk about settling an agreement and, on the other hand, our hands are tied behind our backs as to the negotiations because we cannot negotiate fairly in order to settle matters. [79]

Dr Strelein, Director of the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies, but appearing in her own capacity, pointed out that this practice can put pressure on native title parties to come to an agreement, particularly where representative bodies are unable to negotiate without the companies funds.

It is a conflict of interest really. I know that the rep bodies are not bound by that, but at the same time it gives the proponents a call on indigenous people's time and on the rep body's time with regard to coming to an agreement: 'We put money into this already. It is not just internally sunk funds; it is externally sunk funds that have to be accounted for.' I think it is a concern. Again, I do not think that, if they were fully funded, there would be no calls. I think there would still be calls: 'If you want to come to us, then you have to give us an up-front payment.' That is the way commercial developments work: if somebody comes to you, you have got the bargaining power. But, in this situation, that is not the case. This is not a situation where indigenous people are saying, 'We just won't negotiate,' because they are in a strong position; they are actually saying, 'We can't negotiate,' because they are in a weak position, which is not the same. [80]

A further difficulty with this practice is that smaller companies, who cannot afford to pay all the costs of negotiation, are excluded from the agreement-making process because representative bodies have no money to deal with them. This trend indicates that under-resourcing representative bodies not only affects the level of protection extended to native title, but also impedes economic development on native title land.

Local government representatives also observed that the resources of representative bodies are so tied up in litigation, the representative body re-recognition process and and re-registration of native title claims that they do not have the capacity to negotiate agreements (including future act agreements) and that this impedes local and regional development. [81]

In fact, the PJC Inquiry on ILUAs tapped into a high degree of frustration by developers and local councils over what was perceived as bureaucratic or wilful impediments to negotiating agreements. A worrying response to these impediments was the reliance by local government on compulsorily acquisition powers where negotiations were unproductive.

Councillor Ross, President of the Australian Local Government Association, was questioned about the use of compulsory acquisition by local councils.

CHAIR - It seemed unfortunate to me that a number of these councillors had got to a point of frustration such that they felt that the best way to go was compulsory acquisition, which is really a position of last resort and quite an unfortunate one brought about by a sense of frustration at the delay and complexity of what started out to be for them quite a simple process.

Councillor Ross - I think that we have made that point. We think that it is a poor decision to make and people have been improperly advised. [82]

Mr Wensing, consultant for the Australian Local Government Associations, gave an example of where the compulsory acquisition approach to development was taken and the implications of this practice:

An agreement is the Cairns City Council acquisition of land on the foreshore to facilitate private development. In that particular case they started the process by serving a compulsory acquisition notice on the registered claimants. Of course, then they went and knocked on the door and said they wanted to negotiate in good faith. Well, they have just destroyed that, haven't they? I am pleased to see that in the long run they withdrew the compulsory acquisition notice and decided to head down the agreements route. [83]

The failure to fund representative bodies sufficiently to carry out their agreement-making functions has the result that native title parties are removed from the management of their land. In addition, resourcing has direct implications on the level of protection extended to native title interests relative to the interests of the non-Indigenous party.

The representative appearing on behalf of the Federal Attorney-General recognised that the negotiation of agreements is not an alternative to litigation and that the processes should run simultaneously:

In quite a number of the submissions phrases have been used - or maybe it was in the Hansard - saying that it is negotiate or litigate. In fact those are not the alternatives. ILUAs are mostly about negotiating whether future acts can be done, and that needs to be distinguished from the litigation which is the hearing of a native title application in the Federal Court. If you are negotiating to do a future act and the native title parties will not agree, you do not go to court, you go to the Native Title Act, and find out whether you can or whether you can do it another way. So I think there has been a bit of a misunderstanding that negotiating an ILUA is not a substitute for going to court. [84]

However, there is no apparent appreciation by the government that representative bodies must make the difficult and artificial distinction between litigation and agreement-making because they are chronically under-resourced and therefore unable to engage in both processes simultaneously. The re-integration of the component parts of the native title process can only occur if representative bodies are funded to deal with all of their functions including the representation of native title parties in litigation cases.

Representative bodies facilitate the interaction of two different systems of law and culture.

The level of funding extended to representative bodies does not recognize the cost of facilitating the recognition by the non-Indigenous legal system of the traditions and customs that belong to an Indigenous legal system. Consistent with its origins, native title is a communal title. An example, raised by many representative bodies in the PJC Inquiry, was the expense of assuring the non-Indigenous legal system that all the individual members of the group had authorized the claimants to an application for determination or that an agreement had the consent of all the members of the group.

Noongar Land Council explained the resource difficulties of negotiating an agreement or pursuing a claim of this kind:

If somebody could work out how I am to inform - and get the consent of - 30,000 people to enter into those agreements, I would very much like the information and, in fact, the resources to do it. [85]

Central Land Council had a similar story to tell:

The point I make which is perhaps the point at the heart of this submission, relates to the difficulties we encounter in the authorization or certification of agreements… One point which I have not addressed in many of the other submissions - certainly not in any detail - is the nature of the groups that people are seeking to bind. In our submission we said that it was unlikely that these ILUAs would try to bind any fewer than 250 people. When you look at recent decisions you see that the logistics in doing that are of considerable magnitude. That estimate, certainly from our experience, is particularly conservative. It may be that we are talking about many more people than that. [86]

In view of the costs of certification, agreement making is a limited option:

Mr White - I have a budget which I can provide, which is based on …150 members of a clan group who are not in town at the time that you want to authorize an agreement. The essence of our user pay system is very simple. We estimate, using that budget, that we can probably do one certification per year and an absolute maximum of five certifications, and that is not including costs of negotiation. So, essentially, we are saying that we would advise parties of the costs of certification and invite them to wait for an annual certification meeting, to which we invite all relevant people and we pay for the costs.

CHAIR - That might be a number of certifications?

Mr White - Yes. During the year we would just ask everyone, 'Are you willing to wait and to cooperate with other people who are also coming up with ILUAs? Are you willing to contribute a bit towards the costs of the meeting? If not, just wait. If you are in a hurry and you wish to have an ILUA certified rapidly, here are the costs associated with doing that.' The costs are purely the costs of authorization, and for us to satisfy statutory criteria. [87] …

Senator Mason - This process does not lend itself to a quick outcome…In other words the process that is in place is too expensive for what, in many cases, shire councils need. That is the problem.

Mr White - We are saying that, in that instance, we can do it if we can lump together a whole pile and do it at a single meeting. That is within CQLC's existing budget. We can do it. [88]

In addition to the costs of authorizing and certifying a claim or agreement there is also the cost of ensuring that any benefits that might come with holding a communal native title are shared with the wider group. It was noted throughout the Inquiry that there has been no proper recognition, in representative body allocations, of the cost of setting up Prescribed Bodies Corporate, a function that also falls to the representative body.

The other major cost associated with translating traditional laws and customs into the non-Indigenous legal system, for which there is insufficient account in the NTRB budget, is the cost of proving the connection of the claimants to the original inhabitants and their laws and traditions. In the agreements process these aspects of the claim are established through providing to the State a connection report compiled by anthropologists and other experts. In the litigation process similar evidence is filed either by way of expert statements or affidavit evidence. These processes are very costly and time consuming and dealt with in greater depth in Chapter three of this report. [89]

The failure of government to recognize the above factors in their fiscal decision-making over native title, in many instances has contributed to a mounting tension between representative bodies and the people they serve. It has been nearly ten years since the Mabo decision [90] and the benefits, in terms of land titles or economic development have been limited. This is partly because of the legislation and the winding back of common law rights. But it is also due to the way in which the Act has been administered and resourced. One piece of evidence before the PJC Inquiry expresses how the process is perceived through the eyes of an Aboriginal elder, Miss Grant of the Wiradjuri Elders:

These people [the funding bodies] make decisions in a great area, there is not a lot of money and there are a lot of regulations and structures you have to go under.

The communities out there are torn apart because of people infringing on their countries. The finance is not going that way. We do not have our own economic independence; we cannot build our own business. We want career paths for our young people. But there are these factions and they are enhanced, we believe, by the system, also by native title or the land use agreements. Most of us do not know much about the land use agreements. Who are they benefiting? Where is the money? How do we access it?... There is an industry structure of Aboriginal hierarchy. One wage in some of those industry organizations equals the whole community allotment, so again there are these power playing faction groups. It is tearing our communities apart. [91]

Benchmarks

Many of the reports and reviews that have been surveyed in this chapter have observed and commented upon the inefficient and inequitable way in which resources are allocated to the native title system. Some too have made recommendations on how this allocation can be improved. My contribution to this process of review and improvement has its origins in human rights principles and their capacity to guide the budget process towards an equitable outcome.

Human rights principles distinguish between two types of government measures or programs aimed at racial equality: first, those taken by government to achieve racial equality for those who are presently disadvantaged because of systemic and historical racial discrimination, often referred to as special measures; and secondly, those taken to ensure that the cultural identity of minority groups, such as Indigenous people, are recognised and maintained.

The government's obligations in relation to the former can be found in Article 1(4) of ICERD. Under this clause, special measures must be taken for the sole purpose of securing the advancement of a particular group; such advancement must be necessary; they must not lead to the maintenance of separate rights for different racial groups; and they must not be continued once the objective of the measure has been achieved. Examples of such special measures are the community service programs around housing, health and education aimed at ensuring Indigenous people enjoy the same opportunities as those enjoyed in the non-Indigenous community. The right to the protection and maintenance of one's culture, can be found in Article 27 of the ICCPR.

The Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, in her submission to the CERD Committee in March1999, made the point that native title belongs to the latter of these categories. [92] It is not a special measure or service program as defined by article 1(4) of ICERD. It is the recognition of a right that is inherent to Indigenous people. It is the recognition of our laws, culture and land, as the First Peoples of this country. Native title does lead to the maintenance of separate rights for Indigenous people. Native title is not a temporary measure which can be removed once its objective of overcoming the effect of historical patterns of racism has been achieved.

It is clear that the current budgetary process makes no distinction between the funding of these two types of government programs. Native title is funded as a community service program is funded and exhibits the following characteristics:

• It is dependent on annual grants,
• It is granted at the discretion of the funding agency,
• It ties funds, at varying levels of generality, to a program,
• It is evaluated according to guidelines and priorities established by the funding agency,

• The quality of the application and the lobbying for funding influences the outcome of the funding process. [93]

There are many reasons why this funding model is inappropriate to Indigenous programs. The arguments are even more compelling when applied to the protection of an inherent right such as native title. The following principles should be reflected in the funding of native title:

• The full and effective participation of Indigenous people in decisions that affect them. Because native title originates in an Indigenous system of law and culture there should be effective participation by Indigenous people in determining not only the amount that is allocated to NTRBs but also the criteria by which the funds are distributed throughout the native title system. This notion of effective participation in budget processes is supported in the Report on Indigenous Funding by the Commonwealth Grants Commission (the Commonwealth Grants Commission Report) which found: There are important principles and key areas for action that should guide efforts to promote a better alignment of funding with needs. These include:(i) the full and effective participation of Indigenous people in decision affecting funding distribution and service delivery [94]

• Native title as an expression of inherent Indigenous rights . As an inherent right, native title must be viewed as a permanent feature of the Australian property system. If it is appropriated, extinguished or impaired through the executive or legislative powers of the State, compensation must be paid. Accordingly it is inappropriate that the funding of native title and those responsible for protecting it be determined through annual grants. Rather the funding of native title should be guaranteed either by linking it to relevant activities in the private sector, similar to the Aboriginal land rights legislation in NSW and Northern Territory, or by building in a long term capital base from which income can be generated, similar to the funding of the activities of the Indigenous Land Corporation. The Commonwealth Grants Commission recommended a long term approach to funding in order to better meet Indigenous needs and 'ensur[e] a long term perspective to the design and implementation of programs and services, thus providing a secure context for setting goals. [95] The argument for adopting a long term approach to funding is even more compelling when applied to protecting the inherent rights of Indigenous people.

• Protection of Indigenous culture. Native title is a concept which, consistently with human rights principles, enables the maintenance and protection of Indigenous culture through the legal system. The right of Indigenous people to have their culture protected and maintained should be an overriding objective of any funding process for native title. It should be a key priority in the overall funding of the native title process and the organizations participating in it. Accordingly the funding of representative bodies to perform their statutory functions to a high professional standard must also be a key priority of the funding process.

1. No division between government and ATSIC top-up given in Annual Report.

2. ibid.

3. Includes $1 834 000 rolled over from 1996-97.

4. Includes $1 362 886 rolled over from 1997-98.

5. This figure does not include the increase referred to in the next table, which does not go directly to the NTRBs. No total figure can be given till end of financial year.

6. for division of funds, see table above.

7. According to evidence given to Senate Legal and Constitutional Legislation Committee, Attorney-General's Portfolio: National Native Title Tribunal , 28 May 2001

8. Figures for 2002-2005 are forward estimates.

9. Total funding includes Government appropriations plus sales of goods and services, interest payments and resources received free of charge.

10. The functions of representative bodies are defined under Division 3 of Part 11 of the NTA.

11. Section 203B(4), Native Title Act 1993 (Cth), ('NTA').

12. Federal Court of Australia, Agency Budget Statements , Evidence, Legal and Constitutional References Committee, Australian Senate, 28 May 2001.

13. ibid. p92.

14. ibid, Table 2.2.1. Also see Federal Court of Australia, 1999-2000 Annual Report , pp40-41

15. Australian Law Reform Commission, ALRC 89: Managing Justice: a review of the federal civil justice system , (ALRC Report) 2000, para 7.57 (emphasis added). This information stated in the ALRC report was based upon the Federal Court's submission to the Australian Law Reform Commissioner.

16. at the Native Title User Group Meeting in Sydney on 23 February 2001

17. The Federal Court's submission for additional funding was based on a projected number of cases being disposed of within 3 years.

18. Original NTA, s74 (amended 1998).

19. eg. under the Administrative Decisions (Judicial Decision) Act 1977 (Commonwealth).

20. NTA, s61(5).

21. Only registered native title claims are entitled to the procedural protections and only claims lodged in the Federal Court may be registered. See sections 184 and 190A(1) NTA. Where native title claims in the Federal Court are withdrawn they must also be de-registered: section 190A(4).

22. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Nineteenth Report of the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Second Interim Report for the s.206(d) Inquiry Indigenous Land Use Agreements , Parliament of the Commonwealth of Australia, September 2001 ('PJC Report').

23. Mr Pearce, Hansard , 2 July 2001, p384-385.

24. These figures were provided by Justice French to the Native Title User Group meeting in Adelaide on 9 October 2001.

25. This figure was provided by Chris Searle, NSW Crown Solicitor's Office, to the Native Title User Group meeting on 9 October 2001.

26. Legal and Constitutional Legislation Committee, Senate Estimates, Hansard , 28 May 2001, pp34-35

27. W6015/99 Tribunal number: WC99/11 Application name: Wanjina/Wunggurr-Willinggin

28. Legal and Constitutional Legislation Committee, ibid ., pp56-57.

29. The purpose of the forum was to give representative bodies an opportunity to raise matters of concern about Federal Court management of native title matters and to allow representatives of the Federal Court registry directly involved in native title case management an opportunity to respond.

30. Federal Court Registrar, Warwick Soden described the process at the forum between the Federal Court and NTRBs on 10 October 2001 and confirmed the assumption held by the Federal Court that the estimates would form the basis for increased funding to all those organisations affected. He also confirmed that this assumption had not been realised.

31. ibid.

32. Mr Pearce, Official Committee Hansard , 2 July 2001, p384-385.

33. The PJC Report, op cit, p92.

34. The ALRC Report, Recommendation 74.

35. National Native Title Tribunal, Annual Report 2000 - 2001 , p39.

36. ibid , p48.

37. ibid , p63.

38 . ibid , pp64-65.

39. Wand, P., and Athanasiou, C., Review of the Native Title Claim Process in Western Australia, Report to the Government of Western Australia , Western Australia, September 2001 (the Wand Review).

40. ibid , p124.

41. ibid , p121.

42. ibid , p125.

43. ibid .

44. ibid , p8.

45. The PJC Report, op.cit .

46. ibid , p99.

47. Mr Yu, speaking on behalf of the Western Australia Aboriginal Native Title Working Group, Hansard , 2 July 2001, p366.

48. ibid , p368.

49. Mr Pearce, Hansard , 2 July 2001, p384.

50. Mr Gunning, Hansard , 2 July 2001, p392.

51. Mr Bonnici, Hansard , 20 March 2001, p149.

52. The PJC Report, op cit,Recommendations.

53. Senatore Brennan Rashid, Review of Native Title Representative Bodies , March 1999.

54. Ibid , p21.

55. ibid , p26.

56. ibid , p32.

57. Attorney-General's Department, Submission to the Inquiry Into Indigenous Land Use Agreements by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund , Number 38, p33.

58. op.cit , p3.

59. ibid , p38.

60. as shown in Table 2, pageXX herein.

61. Love-Rashid Report, op cit , p94.

62. In most cases the 'alternative regimes' were rejected by the Commonwealth Senate.

63. pXXX herein.

64. pXXX herein.

65. pXXX herein.

66. Legal and Constitutional Legislation Committee, Senate Estimates, Hansard , 28 May 2001, pp33-34

67. also discussed in chapter One of this report

68. Mr O'Donnell, speaking on behalf of the Western Australia Aboriginal Native Title Working Group, Hansard , 2 July 2001, p369.

69. set out in sections 190A, 190B, and 190C of the Act.

70. PJV Report, Op cit , p92.

71. Mr Vincent, Hansard , 2 July 2001, p368.

72. PJC Report, op cit , p91.

73. Ibid.

74. Mr Bonnici, Hansard , 20 March 2001, p149.

75. Mr Gunning, Hansard , 2 July 2001, p399.

76. Op cit , p84

77. Mr Cribb, Hansard, 2 April 2001, p233.

78. Mr Harvey, Representative of Rio Tinto, Hansard , 2 April 2001, p249.

79. Mr Gunning, Hansard , 2 July 2001, p392.

80. Ms Strelein, Hansard , 1 June 2001, p264.

81. Mr Wensing, Hansard , 9 November 2000, p26.

82. Councillor Ross. Hansard , 2 April 2001, p253.

83. Mr Wensing, Hansard , 9 November 2000, p14

84. Ms Horner, Hansard , 2 April 2001, p256

85. Mr Pearce, Hansard , 2 July 2001, p384-385.

86. Mr Moharich, Hansard , 21 March 2001, p196.

87. Ibid , p198.

88. ibid , p201.

89. See pXXX

90. Mabo v Queensland (No.2) (1992) 175 CLR 1.

91. Miss Grant, Hansard , 8 June 2001 p307.

92. Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Response to request for information in relation to Decision (1)53 concerning Australia, 3 March 1999, annexed to Native Title Report 1999 ,p109, http://www.humanrights.gov.au/social_justice/native_title/index.html#su…

93. This model is discussed in Resourcing Indigenous Development and Self-Determination , a scoping paper prepared by the Australia Institute for ATSIC National Policy Office, Strategic Development Team, www.atsic.gov.au/issues/resourcing_self_determination/Indigenous_Develo… , 23 November 2001

94. Commonwealth Grants Commission, Report on Indigenous Funding 2001 , Commonwealth of Australia, 2001, paragraph 21, pxviii

95. ibid ,paragraph 21, pxix