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

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

• 2.2 How does the native title process contribute to lateral violence? (a) Completing a native title claimant application (b) Mediating a native title claim (c) Establishing a Prescribed Body Corporate (PBC) (d) Negotiating Indigenous Land Use Agreements (ILUAs) (e) Alternate legislation affecting land, territories and resources

• (b) Mediating a native title claim

• (c) Establishing a Prescribed Body Corporate (PBC)

• (d) Negotiating Indigenous Land Use Agreements (ILUAs)

• (e) Alternate legislation affecting land, territories and resources

• 2.3 Case studies: communities minimising lateral violence (a) Quandamooka Peoples native title consent determination (b) Right People for Country Project: Victoria

• (b) Right People for Country Project: Victoria

• 2.4 Conclusion

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.

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]

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]

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.

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.

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] [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]

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.

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]

• 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.

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.

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

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.

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]

• 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.

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.

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]

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.

• 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]

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.

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.

• 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]

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.

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]

• 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.

• 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.

• 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.

• 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.

• 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]

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.

• 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 Aboriginal Sacred Sites Act 1989 (NT)
• Pastoral Land Act 1992 (NT)

• Aboriginal Heritage Act 1972 (WA)
• Aboriginal Affairs Planning Authority Act 1972 (WA)
• Land Administration Act 1997 (WA)

• National Parks and Wildlife Act 1974 (NSW)
• Heritage Act 1977 (NSW)
• Aboriginal Land Rights Act 1983 (NSW)

• Pitjantjatjara Land Rights Act 1981 (SA)
• Maralinga Tjaruta Land Rights Act 1984 (SA)

• 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)

• Aboriginal Lands Act 1995 (Tas)

• 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.

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]

• ‘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]

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

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]

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.

• 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.

• 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.

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.