Native Title Report 2011: Chapter 4: Options for addressing lateral violence in native title

Native Title Report 2011

Chapter 4: Options for addressing lateral violence in native title

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• 4.1 Introduction

• 4.2 Naming lateral violence

• 4.3 Legislative and policy review and reform (a) The National Human Rights Framework (b) Constitutional Reform (c) Native Title Reform

• (b) Constitutional Reform

• (c) Native Title Reform

• 4.4 Culturally relevant frameworks (a) Development with culture and identity (b) Cultural safety and security (c) Cultural competence (d) Culturally appropriate decision-making and conflict management (e) Creating strong and sustainable governance

• (b) Cultural safety and security

• (c) Cultural competence

• (d) Culturally appropriate decision-making and conflict management

• (e) Creating strong and sustainable governance

• 4.5 Conclusion

4.1 Introduction

This Chapter considers options for addressing lateral violence in environments that concern our lands, territories and resources. Although this is the beginning of the conversation, the Chapter aims to give Aboriginal and Torres Strait Islander peoples and communities some ideas about how to address lateral violence through the establishment of strong structural foundations and principles. It also seeks to assist governments to help us confront this problem by reinforcing these structures through legislation and policy.

At the outset of this Chapter, I want to reiterate that the Native Title Act itself does not create lateral violence. Lateral violence occurs across all of the issues we face on a daily basis, whether it is health, education and/or housing; and it also exists in our political dealings and in our daily interactions with each other. The Social Justice Report 2011 provides a more detailed discussion on the broader experience of lateral violence and the mechanisms that our communities have developed to address it.

However, I believe that native title is an important place to start this conversation. Of all the areas that aim to address our disadvantage, the native title system goes to the heart of providing redress for the impact of our dispossession from our lands, territories and resources, and the destruction of our cultures and our identities.

In my view, the way all stakeholders engage within the native title system can encourage behaviours that result in lateral violence. As such, it is critical that the Native Title Act and the operation of the native title system are reinforced by human rights principles and ‘strengths based' frameworks that aim to realise the full potential for our Aboriginal and Torres Strait Islander peoples and our communities.

If we are able to reform the native title system in ways that help us to address lateral violence, we are well on the way to transforming these issues into positive outcomes.

While I argue that Aboriginal and Torres Strait Islander peoples need to take direct responsibility for confronting lateral violence when it threatens to consume our communities, this does not absolve governments or other stakeholders of their responsibility to ensure that the potential for lateral violence is minimised.

It is my view that we all have a role to play to ensure that we have an environment that empowers rather than disempowers Aboriginal and Torres Strait Islander peoples.

I believe that governments and stakeholders, particularly the mining industry, who work with our communities in the native title environment cannot address lateral violence for us; but they can minimise their contribution to creating environments for lateral violence to flourish, and can facilitate and empower communities to address and overcome the challenges that promote lateral violence. The role of governments and others working with us is to foster the principles of the Declaration; and in particular, our choice, participation and control of our communities.

Aboriginal and Torres Strait Islander peoples need to be empowered to become the agents of our own change. The Department of Finance's Strategic Review of Indigenous Expenditure informatively argued:

[E]vidence points to the benefits flowing from a genuine partnership with Indigenous communities, adopting a ‘strengths based' approach, and building on the inherent leadership and wisdom within communities to create a new spirit for change and the embracing of essential reforms to personal behaviour. [1]

Aboriginal and Torres Strait Islander peoples and communities need to lead this process and insist that structures developed to advance our situation are built on solid foundations that cannot be weakened or destroyed by lateral violence.

In applying a human rights-based approach, there are a number of options for addressing lateral violence in relation to our lands, territories and resources. I note that these approaches can also be applied more broadly across other areas of social policy as demonstrated in the Social Justice Report 2011. These include:

• naming lateral violence
• legislative and policy review and reform
• culturally relevant frameworks.

I discuss each of these options for addressing lateral violence in this Chapter.

This Chapter also considers options for governments to provide support to Aboriginal and Torres Strait Islander peoples to address lateral violence played out in native title processes. These suggestions are applicable to other stakeholders working with Aboriginal and Torres Strait Islander peoples in the native title environment, particularly the mining sector.

Specifically, it demonstrates how the Declaration can be applied as a human rights framework to guide the creation and maintenance of a culturally safe and secure environment where Aboriginal and Torres Strait Islander communities can reach their full potential.

Some communities and their native title representative organisations are starting to put in place structures that help to protect them from the effects of lateral violence in the native title environment. This Chapter will case study this positive work that is occurring in Aboriginal and Torres Strait Islander communities to address lateral violence.

4.2 Naming lateral violence

While lateral violence is a new concept to many people, the behaviours that constitute lateral violence have been devastating our families, communities and organisations for many years.

Naming it is the first step towards exerting control over lateral violence. It is also a way of exercising agency and responsibility for our communities. Naming lateral violence becomes an action of prevention. In the native title environment, confronting lateral violence is the only way to ensure that it has minimal impact on our peoples.

Addressing lateral violence means confronting those in our communities and those who work with our peoples who perpetrate lateral violence. I discuss later in this Chapter the concepts of cultural safety and cultural security that can support our communities to confront lateral violence; and the role our communities, governments and external stakeholders can play in creating such an environment.

While this will be a challenge, particularly in our communities that have suffered extensive devastation as a result of colonisation, facing up to tough issues is not new for Aboriginal and Torres Strait Islander communities. There are many instances of communities confronting problems like family violence or alcohol abuse with great courage. The benefits may take time to become apparent. However, over time this new way of doing things will become a community standard and value.

In taking this step, our people must be supported by governments and external native title stakeholders to ensure the system does not facilitate lateral violence. External stakeholders should engage in good faith and not use the native title system to fracture and divide communities in order to progress their development priorities.

(i) Raising awareness of lateral violence

Naming lateral violence is essentially a process of education. It is about giving our communities:

• the language to name lateral violence behaviour
• the space to discuss its impact
• the tools to start developing solutions.

It is ironic that while native title involves processes of mediation and negotiation, lateral violence is still a significant barrier to achieving native title outcomes. Stakeholders participating in native title processes must be conscious that the native title system provides the perfect platform for lateral violence to surface because it brings people to the table – possibly for the first time – who are living on a daily basis with the impacts of colonisation. The native title process requires that native title claimants justify their involvement in the process and this can result in the exclusion of some people to participate.

The native title system must foresee when lateral violence is likely to occur and be equipped to identify it and address it. This means that engaging in native title processes requires solid preparation and robust frameworks to accommodate the potential for disagreement and conflict, and to enable people to work through this conflict. I discuss further below what these frameworks might look like.

It must be acknowledged that this process will need to address the historical as well as the contemporary issues that arise as a result of pursuing our native title rights to our lands, territories and resources. This will require the space and time to deal with these issues and the development of appropriate tools to facilitate solutions in the native title process and to manage future issues that may lead to lateral violence.

4.3 Legislative and policy review and reform

Legislative reform and policy review will assist Aboriginal and Torres Strait Islander communities to address lateral violence by creating structures that promote healthy relationships within our communities and with external stakeholders. These structures should include a strengths based approach that is informed by human rights standards and applied to both governments and communities.

The Attorney General's Department has progressed a number of native title reforms to move towards a more flexible approach that encourages negotiated outcomes and discourages litigation and adversarial approaches. However, it is my view that we cannot simply reform the native title system in isolation to the broader legislative and policy framework and hope that this will fix the native title system. In order for the native title system to be as effective as possible, the legislative and policy framework within which it exists must also support its operation.

This means that native title reform must incorporate our human rights obligations as set out in the Declaration and the Australian Constitution. The native title system sits within the framework of the Declaration and Constitution and alongside a wide range of other policy and legislative platforms that need to operate simultaneously to ensure the best possible outcomes for our peoples.

On 27 January 2011, Australia appeared before the Human Rights Council Universal Periodic Review (UPR). [2] The Human Rights Council recommended that Australia revise its Constitution, legislation, public policies and programs to enable the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples. [3]

We currently have three opportunities to progress legislative and policy reform that would respond to this recommendation and significantly improve the operation of the native title system. These are to:

• ensure that the unique and inherent rights of Aboriginal and Torres Strait Islander peoples are protected under the National Human Rights Framework
• reform the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples and prohibit discrimination on the basis of race
• maintain efforts aimed to create a just and equitable native title system.

The National Human Rights Framework provides the overarching structure, while constitutional reform provides a foundation for the effective operation of the native title system. Reforming the native title system will increase its potential to deliver positive outcomes and ensure that it operates to advance the aspirations of Aboriginal and Torres Strait Islander peoples across Australia.

Legislative and policy frameworks that promote an environment where Aboriginal and Torres Strait Islander peoples empower themselves are essential to our active participation in the life of the Australian nation. They provide the structural supports necessary for Aboriginal and Torres Strait Islander peoples to realise the full potential of our inherent rights as the first peoples of Australia. These structural supports also contribute to creating a safe and secure environment that does not stimulate conflict or foster behaviours that result in lateral violence.

(a) The National Human Rights Framework

In Chapter 3, I argue that the Declaration is a key tool to advance the human rights of Aboriginal and Torres Strait Islander peoples and to address lateral violence.

The Australian Government is currently putting in place the structures necessary to build a strong human rights culture. In April 2010, the Federal Attorney-General launched Australia's Human Rights Framework. This Framework forms part of the National Human Rights Action Plan and affirms the Government's commitment to promoting awareness and understanding of human rights in Australia. [4]

The development of Australia's Human Rights Framework also provides the Australian Government with the perfect opportunity to work with Aboriginal and Torres Strait Islander peoples to review and where necessary, reform all relevant legislation and policies to ensure their compliance with human rights standards and the Declaration.

(b) Constitutional Reform

Aboriginal and Torres Strait Islander peoples are not recognised in the Australian Constitution as our nation's first peoples. As such the Constitution offers no recognition or protection of our rights to our lands, territories or resources.

While the National Apology to the Stolen Generations [5] provided a formal apology to Aboriginal and Torres Strait Islander peoples for detrimental laws and policies that resulted in the forced removal of children from their families, communities and country; reforming the Constitution will formalise this acknowledgement and provide a key cornerstone to address the historical ‘truth' of our nation. In itself, this acknowledgement is so powerful as to curb lateral violence in our communities because it reinforces our cultural identities both as Aboriginal and Torres Strait Islander peoples and as Australians.

I congratulate the Australian Government and all other political parties who have embarked on this journey of constitutional reform to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of our nation. I believe that these reforms to the Australian Constitution will go some way to stem the ongoing impacts of colonisation and lateral violence by:

• affirming our place as the first peoples of Australia and recognising the untruth of terra nullius in our founding document
• addressing a history of exclusion of Aboriginal and Torres Strait Islander peoples

• improving the sense of self-worth and social and emotional well-being of Aboriginal and Torres Strait Islander peoples as individuals, as communities and as part of the national identity [6]

• changing the context in which debates about the challenges faced by Aboriginal and Torres Strait Islander communities take place
• improving relationships between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians.

This process also provides us with an opportunity to address the provisions of the Constitution that permit discrimination on the basis of race. The right to live free from discrimination is a fundamental human right that most Australians take for granted.

The Constitution currently offers no protection of our right to be free from discrimination on the basis of our race. Aboriginal and Torres Strait Islander peoples are particularly vulnerable to this lack of protection. For example, the Racial Discrimination Act 1975 (Cth) (RDA) has been compromised on three occasions: each time it has involved Aboriginal and Torres Strait Islander issues, and on one occasion it has involved the Native Title Act. [7]

In order to address this inadequacy, constitutional reform is necessary to improve the protection of Aboriginal and Torres Strait Islander peoples' rights against discrimination.

Aboriginal and Torres Strait Islander peoples must be able to rely on the Constitution to ensure that legislation cannot be passed and policies cannot be implemented that are detrimental to our human rights including our right to be free from discrimination. Further, as Australian citizens, we must be able to rely on the Constitution to ensure that legislative and policy reform does not diminish our rights.

(c) Native Title Reform

The Native Title Act provides the legislative framework for the operation of the native title system.

The Mabo [8] decision and the subsequent Native Title Act corrected the untruth of terra nullius. Former Prime Minister of Australia, Paul Keating, recently reflected on his role in the development of the Native Title Act and the original intent of the native title legislation:

[T]he Native Title Act went a substantial way in settling the fundamental grievance of indigenous Australia; the brutal dispossession of their lands and the smashing of their ways of life at the hands of an alien imperial power ... I saw the opportunity of the native title route as a modality in dealing with and settling unresolved questions of indigenous land justice in this country ... One of its main objects is to ‘provide for the recognition and protection of native title'; that is, those rights and interests finding their origin in indigenous law and custom; not finding those rights and interests arising solely or peculiarly from the Act itself. [9]

Unfortunately, the Native Title Act has since been transformed to a significantly diminished recognition of native title and no longer reflects this original intent.

Following the Mabo decision that a form of native title exists under the common law, the Australian Government committed to three key policy responses:

• To pass the Native Title Act to offer the protection of statute law to native title and set out processes for future dealings in native title land.
• To introduce legislation to establish a National Aboriginal and Torres Strait Islander Land Fund and an Indigenous Land Corporation to acquire and manage land for dispossessed Aboriginal and Torres Strait Islander peoples.

• To establish a package of social justice measures for Aboriginal and Torres Strait Islander peoples, in acknowledgement of continuing disadvantage and dispossession. [10]

While the first two responses have been delivered to varying degrees, the social justice measures are yet to be developed.

With regard to the first two policy responses, I have longstanding concerns that amendments made to the Act since its commencement have significantly limited the benefits that could be achieved by native title holders, and that the objectives of the Indigenous Land Corporation have not been met and require review. I also believe that both of these policy responses have contributed to lateral violence in communities, with native title claimants constantly required to negotiate their rights within frameworks that are designed to prioritise the interests of governments and industry.

Many Aboriginal and Torres Strait Islander peoples also feel that the native title system has not delivered the intended outcomes for our lands, territories and resources. In particular, many people have the view that native title delivers limited meaningful recognition of the rights, interests, obligations and responsibilities they hold in their country under the traditions and customs of their own society. [11]

As governments begin to understand that our relationship to our lands and resources is interconnected to our overall physical, spiritual and cultural well-being, the need to return to the original intent of the Native Title Act should become more apparent. Native title stakeholders have consistently raised the requirement to create a just and equitable native title system. I have also advocated the need for a holistic review of the operation of the native title system to ensure that it complies with international human rights standards. [12]

In the following section I discuss how the system can be reformed to strengthen the effective participation of Aboriginal and Torres Strait Islander peoples. I also argue that reinforcing the native title system with social justice measures will ensure that Aboriginal and Torres Strait Islander policy is developed in a holistic way to close the gap and contribute to overcoming disadvantage across all social indicators.

(i) Reforming the native title system

The recognition of native title can empower traditional owners. [13] Former Federal Court Justice Murray Wilcox has commented that:

A court decision to recognise native title always unleashes a tide of joy. I believe this has nothing to do with any additional uses of the land ... rather, the fact that a government institution has formally recognised the claimant group's prior ownership of the subject land and the fact of its dispossession. That recognition is what Aboriginal people are seeking. [14]

However, as I discuss in Chapter 2, establishing our claims to native title involves extensive requirements for proving our identity and connection to country. In the shadow of the dispossession referred to by Justice Wilcox, it is often these questions of ‘who we are' that can exacerbate lateral violence in our communities.

Many people and organisations have commented on the extensive requirements for us to prove our native title. For example, as I note in Chapter 2, the Committee on the Elimination of Racial Discrimination expressed regret that as a result of ‘the persisting high standards of proof required for recognition of the relationship between indigenous peoples and their traditional lands, ... many are unable to obtain recognition of their relationship to land (art. 5)'. [15]

The native title reforms that I and previous Social Justice Commissioners have recommended go some way to addressing these issues.

I note that the Australian Government has identified native title reform as a priority and has taken some steps to address a range of issues particularly focused on economic development. [16] To date, however, substantial reform that addresses the broad inadequacies of the system that concern our culture and identity eludes us. These reform initiatives include:

• improving the recognition of traditional ownership
• the current burden of proving native title
• the operation of the law regarding extinguishment
• options for advancing negotiated settlements (including the potential for alternative, comprehensive settlements).

As these options for reform have been detailed extensively in the previous Native Title Reports, it is unnecessary to repeat these details in this Report. [17] Some of these reform options are also canvassed in Senator Siewert's Native Title Amendment (Reform) Bill 2011, which I discuss in Chapter 1 and Appendix 2.

I am of the view that these native title reforms would have a positive effect on addressing lateral violence in our communities. The reforms that may be of particular benefit include reversing the onus of proof, providing more flexible approaches to connection evidence and exploring options for negotiating alternative settlements.

In Chapter 1, I call for a review of the Native Title Act to bring it in line with international human rights standards. This should incorporate our collective goal to achieve a ‘fair, independent, impartial, open and transparent process' that acknowledges our traditional laws and customs to our lands, territories and resources, [18] and eases the burden that comes with the requirements to prove our identity and connection to country.

(ii) Reinforcing the Native Title System – the Social Justice Package

The Social Justice Package was the third element of the Australian Government's response to the Mabo decision.

The Social Justice Package was promised by Prime Minister Keating in his second reading speech on the Native Title Bill. In 1994, the then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, told the 12th Session of the United Nations Working Group on Indigenous Populations:

The social justice package presents Australia with what is likely to be the last chance this decade to put a policy framework in place to effectively address the human rights of Aboriginal and Torres Strait Islander people as a necessary commitment to the reconciliation process leading to the centenary of Federation in 2001. [19]

The Australian Government sought the views of Aboriginal and Torres Strait Islander peoples on what the Social Justice Package might look like. In particular, the Government expressed a ‘desire for constructive and realistic proposals to increase the participation of indigenous peoples in Australia's economic life, to safeguard and develop indigenous cultures, to help develop a positive community consensus and to contribute to lasting reconciliation'. [20]

• major institutional and structural change, including constitutional reform and recognition, regional self-government and regional agreements, and the negotiation of a Treaty [or national agreement] or comparable document
• overcoming inequities and inefficiencies in service delivery, including the achievement of genuine access and equity in Commonwealth mainstream programs and revised Commonwealth-State funding arrangements
• protection of rights through such means as recognition of customary laws, protection of intellectual and cultural property, and recognition of Indigenous rights
• practical measures to enhance opportunities for economic development and to achieve other desirable objectives such as improved public awareness of Indigenous cultures and Indigenous issues.

• the rights of Aboriginal and Torres Strait Islander peoples as citizens
• recognition of their special status and rights as Indigenous Australians and the achievement of greater self-determination for Aboriginal and Torres Strait Islander peoples
• ensuring that Indigenous Australians are able to exercise their rights and share equitably in the provision of Government programs and services
• the protection of the cultural integrity and heritage of Indigenous Australians
• measures to increase Aboriginal and Torres Strait Islander participation in Australia's economic life.

Despite ongoing calls from the Aboriginal and Torres Strait Islander community, the Social Justice Package is still to be delivered.

The Social Justice Package is essential to completing the promise of the Mabo decision as it provides the structural supports necessary for the effective operation of the Native Title Act and the Land Fund. However, the Social Justice Package is also essential to addressing the effects of colonisation that have resulted in the permanent dispossession of lands and the denial of access to, and protection and maintenance of culture and heritage as a result of removal policies. [22]

As I discuss in Chapter 3, within Aboriginal and Torres Strait Islander communities we have been divided into the ‘have's and the have not's'. This is not only relevant to the resources that come from our lands and territories but also relates to our cultures and our knowledge's, with some of us perceived to be ‘more Aboriginal' than others based on the amount of cultural information we have about ourselves and our families. This disparity within our communities is a source of conflict that results in lateral violence.

I believe that a Social Justice Package that protects our human rights is essential to the full exercise and enjoyment of our rights to our lands, territories and resources. A Social Justice Package must aim to strengthen all areas of policy affecting Aboriginal and Torres Strait Islander peoples, including the Closing the Gap policy platform and the Council of Australian Government's targets. It must also ensure that the work of service delivery agencies is appropriately co-ordinated and does not create additional pressure on Aboriginal and Torres Strait Islander communities. And it must enable Aboriginal and Torres Strait Islander communities to build capacity and effectively access and manage the benefits and opportunities available to them.

Holistic efforts such as these empower communities. I view empowerment as the key to addressing lateral violence.

The Government's focus on creating a strong human rights culture in Australia through the National Human Rights Framework provides a great opportunity for the Australian Government to deliver on the promise of the Social Justice Package.

4.4 Culturally relevant frameworks

Ensuring that the native title system is just, transparent and accountable at all levels (from government through to the community) is essential to reducing the potential for lateral violence.

In order for native title to be successful, it must also be culturally relevant. If it is not, the native title system will continue to operate in ways that exclude and divide Aboriginal and Torres Strait Islander peoples and communities. We will continue to be disempowered and struggle amongst ourselves to define our own destinies. This is counter-productive on all fronts.

It has been demonstrated on numerous occasions that a one-size-fits-all policy approach does not deliver desired outcomes and inhibits the accommodation of differences that exist within Aboriginal and Torres Strait Islander communities.

Whether commencing a native title claim process, negotiating an ILUA or establishing a PBC, we need appropriate frameworks for participation, decision-making and conflict management in order to prevent behaviours that result in lateral violence. These preventative measures need to be negotiated with our communities as early in the process as possible:

... at the outset of any native title agreement-making process, there is a need for the negotiation of an agreed decision-making and dispute management framework amongst the Indigenous parties as a prerequisite to the successful implementation and sustainability of agreements. [23]

These measures assist those involved to set up guidelines for engagement, identify historical and contemporary issues and possible points of contention, and establish protocols for managing conflict that can lead to lateral violence behaviours.

A number of NTRBs/NTSPs noted in their responses to me that they enact a Code of Conduct to encourage respect to all persons and provide clear guidelines for behaviour at native title meetings. The Code of Conduct used by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC) is at Text Box 4.2.

Further, McAvoy and Cooms verify that corporate entities that reflect ‘the interests of the native title group and its claims to nationhood can facilitate lasting change':

Such a corporation can manage its own cultural heritage matters, manage trusts into which compensation payments are made, hold shares, and be the party which represents the Traditional Owner interests in regional intra-Indigenous and external agreements. Additionally, it can hold land, engage in commercial contracts, participate in training schemes and, where required, be the registered native title body corporate under the NTA...

Whatever the future holds for the individual native title applications in the region, the future of these Indigenous nations is inexorably bound to the ability of each nation to manage its own affairs. [24]

• Claim Group members and YMBBMAC staff have a right to safety, dignity and respect at all times. This is true even though the native title process may involve strong emotions and difficult decisions.
• YMBBMAC lawyers have professional obligations which they must carry out. These obligations arise as a result of legislation, Professional Conduct Rules and various Codes of Conduct.
• The best outcomes are achieved when people:
• work together respectfully,
• show a unified front when negotiating with other parties, and
• accept the Claim Group's informed decisions, once they have been lawfully made under the group's decision making process.

1. No threats to YMBBMAC staff or Claim Group members
2. Threats, violence, racial slurs, abusive language and intimidating behaviour are not acceptable and will not be tolerated by YMBBMAC staff.
3. if a member of the Claim Group is using threats, violence, abusive language, intimidation or other unacceptable behaviour; or
4. YMBBMAC staff may decide to end a meeting if they feel that lawyers advising the Claim Group or Working Group are being prevented from carrying out their professional responsibilities.
5. Being on time (Punctuality)
6. Claim Group members will make all reasonable efforts to arrive on time at community meetings, Working Group meetings and other appointments.
7. Meetings will start within 15 minutes of the planned starting time, provided that any required quorum has been reached, even if some members of the group have not arrived.
8. Minimum number of people at a meeting (Quorum)
9. Some claim groups, in considering what their agreed decision making process will be, may decide that a minimum number of Claim Group members must be present at a meeting before the business of a meeting can happen (this number is known as a “quorum”).
10. Other claim groups may decide that a quorum is not needed or is culturally inappropriate.
11. If a Quorum is required for Working Group meetings, the Claim Group will determine this at a Claim Group meeting (community meeting).
12. Acting on someone else's behalf (Proxies)
13. Some claim groups may allow a member to select another person (a “proxy”) to attend meetings, cast votes or make decisions if the member is not there.
14. A proxy can only act in the place of the member they represent. If a proxy is chosen, but the member attends the meeting anyway, only one of them can vote.
15. Members' Conflict of Interest
16. If a member of a Working Group or Claim Group has a conflict of interest, the member will tell the meeting about it (declare it). (An example of a conflict of interest is if a member works for a mining company, and the meeting is discussing an issue to do with that mining company.)
17. be excluded by being asked to leave the room,
18. be allowed to participate in the discussion but not vote, or
19. Confidentiality of information
20. Claim Group members must not breach that confidentiality, such as by sharing that confidential information with others (for example, talking about it to a mining company that they work for).

• Threats, violence, racial slurs, abusive language and intimidating behaviour are not acceptable and will not be tolerated by YMBBMAC staff.
• Claim Group members will not threaten or intimidate other Claim Group members or YMBBMAC staff for any reason, such as to influence decisions, heritage surveys or meeting outcomes.

• Claim Groups or YMBBMAC staff may exclude members from meetings, decide to end a meeting, or vary the way meetings are held (eg, holding ‘split' meetings or secret ballots):
• if a member of the Claim Group is using threats, violence, abusive language, intimidation or other unacceptable behaviour; or
• if a member of the Claim Group is behaving in an unreasonable way that is stopping a meeting's progress.
• YMBBMAC staff may decide to end a meeting if they feel that lawyers advising the Claim Group or Working Group are being prevented from carrying out their professional responsibilities.

• Claim Group members will make all reasonable efforts to arrive on time at community meetings, Working Group meetings and other appointments.
• Meetings will start within 15 minutes of the planned starting time, provided that any required quorum has been reached, even if some members of the group have not arrived.

• Some claim groups, in considering what their agreed decision making process will be, may decide that a minimum number of Claim Group members must be present at a meeting before the business of a meeting can happen (this number is known as a “quorum”).
• Other claim groups may decide that a quorum is not needed or is culturally inappropriate.
• If a Quorum is required for Working Group meetings, the Claim Group will determine this at a Claim Group meeting (community meeting).
• Any quorum should make sure there are enough people present to speak with authority for all parts of country, and the Claim Group as a whole.

• Some claim groups may allow a member to select another person (a “proxy”) to attend meetings, cast votes or make decisions if the member is not there.
• Other claim groups may decide that proxies are not needed or are culturally inappropriate.
• A proxy can only act in the place of the member they represent. If a proxy is chosen, but the member attends the meeting anyway, only one of them can vote.
• A member can only appoint a proxy in writing, so that YMBBMAC staff are sure that the proxy has the authority to participate in making decisions.

• If a member of a Working Group or Claim Group has a conflict of interest, the member will tell the meeting about it (declare it). (An example of a conflict of interest is if a member works for a mining company, and the meeting is discussing an issue to do with that mining company.)
• The meeting will then decide if that member should:
• be excluded by being asked to leave the room,
• be allowed to stay as an observer only,
• be allowed to participate in the discussion but not vote, or

• Information that is not already in the public domain (including discussions, presentations and documents used in meetings, heritage surveys and connection work) is to be treated as confidential between Claim Group members and YMBBMAC staff, unless disclosure is permitted by law (including the Privacy Act 1988 (Cth) as amended from time to time).
• Claim Group members must not breach that confidentiality, such as by sharing that confidential information with others (for example, talking about it to a mining company that they work for).

Below, I discuss five key elements necessary for creating frameworks that are strengths based and can assist us to address the damaging effects of lateral violence:

• development with culture and identity
• cultural safety and security
• cultural competence
• culturally appropriate conflict management/dispute resolution
• creating strong and sustainable governance.

(a) Development with culture and identity

Development with culture and identity requires that we accommodate the diversity of experience and need within Aboriginal and Torres Strait Islander communities. It also requires that all legislation, policies and programs reflect the local needs and aspirations of affected communities:

Holistic concepts of development have to consider the reality and struggle that indigenous peoples experience in order to live in a market-driven society. Development policies, institutions and systems established by States must allow for diversity and plurality and the coexistence of indigenous governance, economic, social, education, cultural, spiritual and knowledge systems and natural resources with systems adopted by the State. This is part of indigenous peoples' right to self-determination. [25]

The inclusion of culture and identity into development frameworks is essential to addressing lateral violence. It affirms the need to ensure that all processes designed to promote our development are framed and reinforced by cultural integrity and cultural self-determination; and seeks to build on collective rights, security and greater control and self-governance of our lands, territories and resources.

The Native Title Act was established to reaffirm and accommodate the cultural relationships Aboriginal and Torres Strait Islander peoples have with their lands, territories and resources. However, a critical point of conflict for traditional owners is the need to balance the cultural, social, economic and environmental elements of development that arise from the native title system. This conflict is facilitated by governments and industry that focus heavily on economic outcomes and ignore the other elements essential for our well-being including our social, cultural, political and spiritual systems.

The United Nations Permanent Forum on Indigenous Issues recently conducted a study on Indigenous people's development with culture and identity. The Report on the study highlighted that:

The dominant models of development have compromised indigenous peoples in every aspect of their daily lives, including through the imposition of large infrastructure projects on their lands without their consent. This has generated poverty and severe inequality, massive environmental devastation and human rights violations. The serious rupture to the fabric of social life in indigenous communities as manifested in family breakdowns, alcoholism, and suicide among young people has been fuelled further by this model. In addition, it ignores indigenous peoples' own governance, economic, social, education, cultural, spiritual and knowledge systems and the natural resources that have sustained them through the generations. [26]

The Permanent Forum argued that development models based purely on economic advancement fail ‘to promote the cultural, political, social, ecological and economic integrity of indigenous peoples and their communities'. [27] As I highlight in Chapter 3, a key mechanism provided by the native title system is the ability to negotiate ILUAs or native title settlement agreements. Agreement making gives native title holders a seat at the table and opens opportunities to negotiate a range of development outcomes that meet our local needs and aspirations. These mechanisms must be flexible enough to incorporate our social, cultural, spiritual, environmental and economic development requirements.

The Right People for Country project has developed a set of core principles that are required for Indigenous agreement making in Victoria. Text Box 4.3 sets out and provides a brief explanation of these core principles.

The process for agreement making in the Right People for Country Project is ‘Indigenous-led', which is consistent with the principles of self-determination and empowering community decision-making that are set out in the Declaration. [29] This approach enables Traditional Owners to make their own decisions about group composition and extent of country.

• information on legal issues
• policy context
• project parameters
• agreement making processes, such as roles and responsibilities of groups and potential outcomes.

Involvement of Indigenous people in the management and delivery of native title services increase Indigenous engagement with the service. This involvement embeds Indigenous knowledge, expertise and perspectives within the service and reduces the perception of the service as an imposed process. [30] Local advocates can promote Indigenous agreement making processes and disseminate information.

My predecessor, Tom Calma highlighted the Argyle Participation Agreement (Argyle Agreement) in his Native Title Report 2006. This agreement making process was underpinned by similar principles to those outlined above.

I believe the Argyle Agreement confirms that when culturally relevant frameworks that respect culture and identity are developed in conjunction with native title claimants, positive outcomes that discourage conflict and encourage mutual understanding of each other's priorities can be achieved.

This case study is particularly relevant because the families involved were struggling with lateral violence within their communities as a result of historical negotiations with the mining company. [31] However, they came together and worked through these issues to achieve what is regarded as a positive agreement. While I have not gone back to review the progress of the Argyle Agreement, it continues to be promoted as a best practice model.

The Argyle Diamond Mine Participation Agreement (the Argyle Agreement) is a registered Indigenous Land Use Agreement (ILUA) between Traditional Owners of the East Kimberley region of Western Australia, the Kimberley Land Council and Argyle Diamond Mine (Argyle Diamonds). [33] The ILUA area covers 797.5 square kilometres and is located within the Shire of Wyndham-East Kimberley and the Wunan Regional Council, 100 kilometres south west of Kununurra. The communities affected by the mining include those at Warmun, Doon Doon, Glen Hill, Bow River and Crocodile Hole.

The Argyle Diamond Mine covers two significant story places for the traditional owners of this region, Barramundi Gap and Devil Devil Springs. The traditional owners have a responsibility to protect and maintain these sites of significance and ceremony. It is the responsibility of the Mirriuwung and Gidja people, particularly the women, to protect their ancestor the Barramundi, who will in turn take care of them. The Ngarranggarni (sometimes referred to as the Dreaming) is a living belief system that establishes continuity between past, present and future. It continues to inform the day to day activity of the Mirriuwung and Gidja peoples and their relationships to country. [34]

• ensuring that communication was tailored to the needs of the traditional owners
• taking traditional owners on tours of the mine, including the underground mine
• developing different visual strategies to assist with explanations of the impact of the mining activity on their country
• using translators throughout to ensure that everyone could follow and participate in the negotiations
• preparing all key documents in a format that included plain English interpretations.

• provided the mining company representatives with information about their laws and customs

• performed ceremonies to ensure that the mining operation could be conducted free from danger and interruption by the local Dreaming beings and spirits of the ‘old people'. [35]

When they (traditional owners) were engaging with the mine they did so on their own terms. By performing ceremonies and reinforcing their relationships to the land and the Dreaming in the land, they were actually using very critical ways of engaging with the mining company that reinforced their difference, that ensured that they were not lost in a blended amorphous relationship. They really wanted the mining company to know that we are different from you, we have a very different way of being in the world, but we can be in this world with you. What I think is so exciting about Argyle is that those Aboriginal people who were engaging at that level, within their own cultural framework were never compromised in their relationship with the mine. [36]

(b) Cultural safety and security

A key element of the Argyle Agreement was the care taken to ensure that cultural safety and security were provided throughout the negotiation process.

The concepts of cultural safety and security can provide the impetus for the cultural renewal and cultural resilience that is needed to challenge lateral violence. This is a key step in implementing the human rights framework to address lateral violence.

Cultural safety is diminished through a lack of respect and recognition of the positive aspects of Aboriginal and Torres Strait Islander culture and its centrality in creating a sense of meaning and purpose for Aboriginal and Torres Strait Islander peoples. For all Indigenous peoples, culture is essential for spiritual, emotional and social growth and maintenance and provides the ‘spear and shield'; it provides our resistance and resilience. [37]

• environments of cultural resilience from within Aboriginal and Torres Strait Islander communities
• cultural competency by those who engage with Aboriginal and Torres Strait Islander communities.

(i) Cultural safety

The concept of cultural safety is drawn from the work of Maori nurses in New Zealand and can be defined as:

[A]n environment that is safe for people: where there is no assault, challenge or denial of their identity, of who they are and what they need. It is about shared respect, shared meaning, shared knowledge and experience of learning, living and working together with dignity and truly listening. [38]

For Aboriginal and Torres Strait Islander peoples, a culturally safe environment is one where we feel safe and secure in our identity, culture and community.

Cultural safety can be conceived as re-claiming cultural norms and creating environments where our communities are able to become achievers and contributors. [39] Revitalising our culture and renewing cultural norms within our communities brings resilience and can prevent lateral violence.

The idea of cultural safety envisages a place or a process that enables a community to debate, grapple with and ultimately resolve the contemporary causes of lateral violence without fear or coercion. [40]

The native title process and particularly mediation and negotiation processes provide us with opportunities to have open and frank discussions about issues concerning us. While these discussions may not seem relevant to external stakeholders, these issues must be addressed in order to progress negotiations positively and effectively. However, appropriate frameworks must be established and culturally safe environments must be provided to ensure that participants can have these necessary discussions in an environment that does not foster lateral violence.

(ii) Cultural security

Cultural security is subtly different from cultural safety in that it imposes a stronger obligation on those that work with Aboriginal and Torres Strait Islander peoples to move beyond ‘cultural awareness' to actively ensure that our cultural needs are met. This means our cultural needs are addressed in policies and practices, and that all Aboriginal and Torres Strait Islander peoples have access to services that address our cultural needs. This needs to happen in all policy and service areas, not just in areas where there are particularly culturally competent workers.

A culturally secure environment cannot exist where external forces define and control cultural identities. The role for government and other stakeholders in creating cultural safety is to ensure that our voices are heard and respected in relation to our community challenges, aspirations and identities. [41] In this way, cultural security is about government and stakeholders working with us to create an environment for our community to exert ownership of ourselves. Through this ownership we are empowered.

The experience of Queensland South Native Title Services (QSNTS) to manage their native title case load with a significant number of overlapping claims demonstrates the need for culturally secure frameworks that establish a protocol for progress at all stages of the native title process.

Without these frameworks in place, NTRBs and NTSPs that have a legal responsibility to represent native title holders as well as to manage the conflicting interests of ‘aspiring claimants' may unintentionally incite lateral violence both within the communities they are working with and also within their organisations.

Text Box 4.5 sets out the Legal Services Strategic Plan (LSSP) adopted by QSNTS in 2005–2008 to provide a fair, transparent and culturally relevant framework for resolving native title in the region. This included developing clear objectives, principles and policies for managing native title claims, and using land summits as a forum for mediating and negotiating overlapping native title claim areas. Time was set aside to ensure that native title claim groups within the QSNTS region were aware of the LSSP, the way it works and its implementation across the region.

By mid 2004, 29 of the 30 native title claims in the Queensland South region were wholly or partially subject to overlap with at least one other claim. [42]

1. work with the traditional owners of southern Queensland to achieve the best results possible within the existing legislative framework and the available resources
2. ensure that the available resources were allocated between claim groups in a fair and equitable manner
3. ensure that QSNTS service delivery was transparent
4. ensure that the traditional owners of southern Queensland were aware of the policies upon which decisions regarding the management of native title will be made by QSNTS
5. ensure that the traditional owners of southern Queensland had access to information and understood their obligations and responsibilities arising from their participation in the native title process

6. work with the traditional owners of southern Queensland to ensure any social infrastructure flowing from the native title process was complementary to the traditional owners' broader aspirations. [43]

1. litigation was the option of last choice
2. the law was settled and failing amendment to the Native Title Act will not change greatly regarding connection
3. the native title process was unlikely to deliver substantial areas of land or water to the traditional owners of southern Queensland
4. the native title process may deliver mechanisms through which recognition and substantial empowerment could be achieved

5. QSNTS was a service provider and not a funding provider. [44]

• native title determination application case management
• future acts

• ILUAs. [45]

• Stage One required satisfying Queensland Government requirements to ensure the ‘right people' have been satisfactorily identified for the ‘right country'.
• Stage Two involved the preparation of comprehensive connection materials and negotiations with governments and other respondents to achieve negotiated outcomes.

• Stage Three involved litigated proceedings which are limited to claims that were able to satisfy the requirements of the FaHCSIA for special funding. [46]

The cornerstone of the implementation of the LSSP was land summits within the sub-regions where the claimants met with the aim of either resolving overlaps at the summit or agreeing on a process that would lead to a resolution of the overlap. [47] While land summits were resource intensive, they were viewed as a critical step in the process to resolve overlaps between native title claims in the Queensland South region. [48]

I refer to the extensive discussion by McAvoy and Cooms to explain the logistics, experiences and review of two land summits undertaken by QSNTS in 2005 and ߖ [49] however, the following points set out some ‘tips' that helped to make land summit processes in the QSNTS region successful for the native title applicant and their claims.

• comprehensive planning and preparation of logistics as well as ways to manage substantive anthropological and legal issues
• holding the meetings over weekends with plenty of time for negotiations
• choosing suitable venues
• good food in large supply
• clear consistent travel allowance payment policies
• high level research and understanding of each claims current status and potential way forward.

• highly skilled and well briefed Indigenous facilitators for each group (pay them well so you can utilise them again)
• skilled provision of information about the LSSP
• health services for the duration of the land summit
• Indigenous security services that are not intrusive
• digital mapping facilities and high quality maps
• involvement of the Federal Court and the Tribunal in process development and in the provision of information and advice
• high quality legal and anthropological advice
• clear consistent and transparent rules of engagement
• memorabilia.

• timely follow-up on recommendations and instructions
• ongoing positive relationships between QSNTS and relevant government departments and between QSNTS and the applicants
• early establishment of native title corporations which have carefully thought-out decision-making processes

• a range of capacity building assistance including in the areas of governance, finance and land acquisition and management. [50]

(c) Cultural competence

Whether we like it or not, the way our communities operate will always be shaped and informed by external influences. These influences can either support and empower our communities or undermine and disempower them.

While this Chapter promotes our self-determination and our ability to control our own destinies, we cannot do this without the support of governments and other stakeholders who rely on us to engage effectively with them.

I argue that governments and industry cannot ‘fix' lateral violence through intervention; this is likely to only exacerbate the issue. Aboriginal and Torres Strait Islander relationships must be addressed by us from within our communities. However, this does not absolve external stakeholders of responsibilities to:

• remove the road blocks that inhibit Aboriginal and Torres Strait Islander peoples from taking control
• refrain from actions and processes that divide us
• create environments where our cultural difference is respected and nurtured
• remove the structural impediments to healthy relationships in our communities.

To meet these responsibilities governments and industry must be sufficiently culturally competent. Cultural competency extends beyond individual awareness to incorporate systems-level change. Much of the research in this regard has been conducted in the health sector, but should apply more broadly across all sectors and in particular, agencies involved in advancing the rights of Aboriginal and Torres Strait Islander peoples.

• value diversity
• have the capacity for cultural self-assessment
• be conscious of the dynamics that occur when cultures interact
• institutionalise cultural knowledge

• adapt service delivery so that it reflects an understanding of the diversity between and within cultures. [51]

The Victorian Aboriginal Child Care Agency has developed an Aboriginal Cultural Competency Framework that guides the mainstream child and family services towards cultural competency and includes a cultural competence continuum that can be used to assess cultural competence. The framework for the cultural competence continuum is set out below at Diagram 4.1.

Cultural competency must be built over time through a deliberate process that seeks to build the capacity of the entire organisation and this must be done in partnership with Aboriginal and Torres Strait Islander communities.

The concept of the continuum outlined in the diagram below can be applied universally, to all who are working with Aboriginal and Torres Strait Islander communities.

In developing the cultural competency of an agency or organisation it is essential to remember that cultural competency:

• needs to be developed over time
• requires a whole-of-agency approach and needs to be driven by strong leadership within the agency
• relies on respectful partnerships with Aboriginal and Torres Strait Islander organisations
• requires personal and organisational reflection

• is an ongoing journey and partnership with Aboriginal and Torres Strait Islander communities. [53]

I encourage all agencies and external stakeholders to use this framework to self-assess approaches to developing legislation, policies and programs that affect the lives of Aboriginal and Torres Strait Islander peoples.

(d) Culturally appropriate decision-making and conflict management

Conflict must be seen as natural, particularly given the multidirectional and contextual relationships between individuals and communities. However, in Aboriginal and Torres Strait Islander communities the potential for conflict that leads to lateral violence is heightened as a result of the ‘inter-relationships and interconnections between people', and often does not account for the range of differentiations within the group.

An understanding of culture must recognise the diversity within Aboriginal and Torres Strait Islander communities. As it currently stands, much of the political and media landscape that directly affects the lives of Aboriginal and Torres Strait Islander communities fails to reflect this diversity. Any difference in opinion, even with contentious and personal views like politics or ideology, is portrayed as dysfunction. [54] Meanwhile, difference in opinion is accepted as the norm for mainstream Australia. Michael Mansell reflects on this false homogeny:

We are no different from any other people anywhere in the world. We have different lifestyles and different communities. We have different political attitudes and we have different aspirations. Even though there are many common threads which run throughout the Aboriginal [and Torres Strait Islander] communities in Australia, we tend to encourage the differences because they are healthy. The worst aspect of political life that can be imposed on Aboriginal people [and Torres Strait Islanders] is that we must all speak with one voice and say exactly the same thing. [55]

(i) Understanding conflict?

I believe that many of the conflicts that arise within Aboriginal and Torres Strait Islander communities may never be resolved. This is a consequence of the deep hurt, trauma and ongoing effects associated with our experience of colonisation, dispossession, dispersal and oppression. It is likely that this will also be the case in addressing our relationships with governments into the future.

In successful processes that do not create lateral violence, conflict is transformed to something that both parties can live with. Conflict never truly goes away because individuals and communities have to live with the impact of the original conflict. Nonetheless, it is possible and important to put in place healthier ways of dealing with conflict to prevent it further impacting on our communities into the future.

As such, frameworks designed to address conflict must be developed on the basis of ‘conflict or dispute management' rather than the expectation of ‘conflict or dispute resolution'. In engaging these processes, however, we can come to an agreed resolution that provides a pathway forward.

Further, in developing appropriate frameworks to manage conflict, we must be conscious that inter or intra-Indigenous disputes are not between Aboriginal and or Torres Strait Islander peoples in isolation to the world around them. While conflict is natural within communities, outside influences including those from the Native Title Act contribute to it. [56]

When we are afforded the ability to disagree, we can develop responses to disputes that arise within our communities and more broadly within the Indigenous sector. Recognition and respect for diversity within Aboriginal and Torres Strait Islander communities is an essential platform for developing processes to effectively manage conflict and reduce the potential for lateral violence.

(ii) Frameworks for decision-making and managing conflict

A key component of effective participation in decision-making is the ability to resolve disputes when they arise.

The ability of Indigenous communities to deal with conflict in ways that reflect their local practice and reinforce local community authority not only help make communities safer and more enjoyable places to live, they also go some way to addressing the sources of dysfunctional and systemic conflict. [57]

External stakeholders have obligations to ensure that Aboriginal and Torres Strait Islander peoples actively participate in decisions and processes that affect their rights. [58]

Governments and industry need to understand that when engaging with us, conflict and disagreement within our communities is not something that can simply be ignored in the hope it will go away. It won't. These conflicts are often ingrained and external engagement becomes another avenue to play out these feuds. This is often seen in native title negotiations.

Similarly, community disputes should not be used by external parties as an excuse for saying ‘it's all too hard'. The presence of community disputes does not absolve external parties of their obligations to ensure we actively participate in decision-making that affects us.

‘Ultimately the aim is to negotiate the principles of a dispute management framework which is integrated with the decision-making one and which also contains contingency plans in the event that a dispute cannot be managed'. [59] However, external consultation and engagement processes need to be adequately established so that our internal decision-making and if necessary, conflict management processes, can operate effectively without pressure from governments and other parties.

For example, processes for resolving difficult issues must include reasonable timeframes that are set by Aboriginal and Torres Strait Islander peoples rather than by third parties. Identifying who has decision-making authority within the community and ensuring all community members participate in decision-making also assists to address conflict and reduce the potential for future conflict.

There are many options and mechanisms designed to deal with conflict including mediation, arbitration and conciliation. In the native title environment, mediation seems to be the main mechanism for negotiation and conflict management. However, mediation may not always be the most appropriate option. Throughout native title negotiations, a variety of mechanisms and capacity building strategies may be needed to address different types of conflict or to facilitate discussions at various points of the negotiation process.

As identified by Behrendt and Kelly:

There is a recurring need for intra-cultural dispute resolution in the native title system. Before any substantive negotiations can take place between native title claimants and non-Indigenous parties under the Native Title Act 1993 (Cth) (NTA), ‘it is necessary for Indigenous parties to negotiate a framework for Indigenous decision-making and conflict management processes in relation to particular local contexts and proposals'. [60]

Considerable work has been done in developing appropriate frameworks for managing conflict and resolving disputes, particularly in relation to native title. This includes:

• The Solid work you mob are doing Project [61] conducted by the Federal Court of Australia in partnership with the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS).

• The Indigenous Facilitation and Mediation Project [62] (IFaMP) conducted by AIATSIS.

The outcomes of these two projects reflect an alternative dispute resolution (ADR) model. ADR processes are based on ‘traditional dispute resolution mechanisms and the values of many Aboriginal communities'. [63] They are ‘designed to reflect the values of the Aboriginal community'. [64] The ADR model also assists with developing ‘practicable alternatives that will create better outcomes than current mediation models'. [65]

Recognising the role of culture in conflict management processes is essential to success and is a central element of the ADR approach. The Report of the Solid work you mob are doing Project concludes that:

Cultural understandings, priorities and responsibilities to land and kin differ markedly between and amongst Indigenous communities across Australia ...

Cultural meanings are embedded in the social, economic and political dynamics of a community ... every dispute is different, and every process is a site of collaboration and negotiation. [66]

The need to accommodate this difference in the development of frameworks for negotiation and conflict management is highlighted in the work of the Solid work you mob are doing Project outlined in Text Box 4.6.

1. The role of culture

• that both historical and contemporary cultural issues are inseparable from other issues affecting the lives of Aboriginal and Torres Strait Islander peoples
• that in negotiating with parties, managing conflicts in ways that are congruent with cultural values, priorities and governance structures – including kinship protocols, respect for Elders and traditional, use of ceremony and approaches to gender
• the need to assist the community to develop processes that are owned by the community
• the need to evolve processes and services in response to local needs and issues
• the need to adapt and modify approaches according to the context in which they are employed.

1. The importance of preparation
2. design the preparation phase thoroughly and allow sufficient time and resources
3. map relationships to identify whose dispute it is and appropriate support people – the dispute may be ‘owned' by individuals, or small or large groups, depending on the nature of the families and communities involved
4. build willingness to participate by fostering goodwill, instilling confidence and trust, and explaining the process in clear language
5. support local people to take responsibility for fixing their own problems by initiating dispute management processes themselves
6. build on work carried out during preparation to design effective process
7. engage with, and respond to preferred ways of doing things and confirm the appropriateness and acceptability of the approach
8. use team, co-mediation or panel approaches to:
9. better account for the broad range of interests and needs in multi-party disputes
10. establish local and regional infrastructure to facilitate access to services and to enable quick responses to requests for assistance to avoid disputes escalating to the point of intractability
11. ensure that all parties agree with the venue
12. create physically safe places where feelings can be expressed, and strong emotions can be vented
13. create culturally safe places which use language and communication styles that are understood, involve appropriate support including interpreters and are located in casual environments
14. promote and model effective non-violent ways of managing conflict
15. respect the importance and complexity of relationships and design processes that build positive relationships.

• design the preparation phase thoroughly and allow sufficient time and resources
• map relationships to identify whose dispute it is and appropriate support people – the dispute may be ‘owned' by individuals, or small or large groups, depending on the nature of the families and communities involved
• build willingness to participate by fostering goodwill, instilling confidence and trust, and explaining the process in clear language
• support local people to take responsibility for fixing their own problems by initiating dispute management processes themselves
• prepare thoroughly and ensure timeframes are appropriate

• build on work carried out during preparation to design effective process
• engage with, and respond to preferred ways of doing things and confirm the appropriateness and acceptability of the approach
• use team, co-mediation or panel approaches to:
• better account for the broad range of interests and needs in multi-party disputes
• establish local and regional infrastructure to facilitate access to services and to enable quick responses to requests for assistance to avoid disputes escalating to the point of intractability
• consider who should be invited to attend after extensive discussions with parties – bringing everyone together in ‘big meetings' without adequate preparation will be ineffective
• ensure that all parties agree with the venue
• create physically safe places where feelings can be expressed, and strong emotions can be vented
• create culturally safe places which use language and communication styles that are understood, involve appropriate support including interpreters and are located in casual environments
• promote and model effective non-violent ways of managing conflict
• respect the importance and complexity of relationships and design processes that build positive relationships.

The IFaMP was particularly focused on identifying, promoting and supporting best practice approaches to Aboriginal and Torres Strait Islander decision-making and conflict management particularly in relation to the operation of the Native Title Act.

Native title stakeholders and the Australian Government have identified the need to transform the adversarial nature of the native title system and have significantly focused on improving agreement making processes and developing non-adversarial approaches such as mediation, facilitation and negotiation. [68]

The principles promoted by IFaMP and that are outlined in Text Box 4.7 assist in creating culturally appropriate frameworks for decision-making, conflict management and agreement making.

1. Conflict is natural and can have positive outcomes when managed appropriately.
2. Indigenous people have the right to:
3. free, prior and informed consent to processes and agreement outcomes
4. say no to any processes or agreements
5. Processes should do no harm.
6. How agreements are negotiated will have a major bearing on their sustainability; decisions must be owned by Indigenous parties to be sustainable.
7. ‘Quick fix' solutions are to be avoided at the expense of long term resolution.
8. No one size fits all – processes should:
9. reflect, support and be tailored to local needs and ideas of how authority should be organised and decisions should be made
10. embody Indigenous values and Indigenous law
11. recognise that some Indigenous disputes may not be amenable to resolution and that their dynamics should be managed and accounted for in solutions
12. Early intervention and prompt responses can de-escalate conflict.
13. Indigenous decision-making, agreement making and dispute management processes should be integrated with other processes and services in Indigenous communities in whole-of-government and whole-of-community approaches.

• free, prior and informed consent to processes and agreement outcomes
• say no to any processes or agreements
• manage and own their decisions and disputes.

• reflect, support and be tailored to local needs and ideas of how authority should be organised and decisions should be made
• embody Indigenous values and Indigenous law
• recognise that some Indigenous disputes may not be amenable to resolution and that their dynamics should be managed and accounted for in solutions
• build on and support local capacity.

• resourcing processes adequately
• strategic planning, preparation, design and time frames
• team cohesion
• consent to process
• meeting the needs of those outside the process
• capacity to participate
• dialogue, relationship building and interactive techniques
• community education
• mapping underlying issues and disputes
• an integrated approach
• negotiating local decision-making and dispute management frameworks
• effective group representation, roles and responsibilities
• conflict of interest
• implementation
• complaints processes
• employment of process experts and codes of conduct.

These culturally based principles and guidelines can be translated into engagement protocols or codes of conduct that can guide internal community decision-making and conflict management processes, and assist Aboriginal and Torres Strait Islander people to participate in external processes that affect their communities.

The above case studies reflect the human rights principles that I outline in Chapter 3 and provide a good starting point to equip our communities to find local solutions to local problems. Applied within strong governance frameworks, these structures can assist Aboriginal and Torres Strait Islander communities to combat and neutralise behaviours that result in lateral violence.

(e) Creating strong and sustainable governance

A key requirement that is necessary to fully exercise our right to self-determination and to participate effectively in decisions affecting us is ‘good governance'. However, simply applying a non-Indigenous governance framework to Aboriginal and Torres Strait Islander community organisations – in particular PBCs – is misplaced and inappropriate. This is due to the fact that:

Indigenous governance structures are a complex mix of formal and informal structures and processes. Extended Indigenous families have many levels of inclusiveness. There are local institutions informed by long held Indigenous laws and cultural priorities, local government councils, incorporations of native title holders and traditional owners, and a range of other Aboriginal resource and interest groups.

Functioning PBCs are essential to native title. Good governance helps to reduce the potential for conflict by establishing agreed frameworks and accountability mechanisms that accommodate the diversity of rights and responsibilities required within Aboriginal and Torres Strait Islander organisations, particularly those set up for the purposes of managing native title rights and interests.

Governance is:

• determine who is a member of their group
• exercise their authority and power
• hold their leaders accountable
• represent their collective rights and interests
• steer their future direction
• negotiate with each other and outside parties
• manage their own affairs.

At its heart, governance is about who has power and authority, and how they use it ... Without genuine decision-making power, and the practical capacity to exercise legitimate and accountable authority, any system of governance will fail. [70]

In designing, developing and assessing governance frameworks, we are able to rely on guidance provided by the Declaration. For example, the Declaration says that in order to advance our rights to participate in decision-making that affects us, our representative bodies should ensure they echo the voices of the Aboriginal and Torres Strait Islander peoples that they represent.

(i) ‘Good governance' in a cultural context

Governance in Aboriginal and Torres Strait Islander communities is directly related to consultation and engagement, and encompasses genuine decision making power.

Good governance means having good rules for deciding how people work together to do the things they need to get done, how decisions are made, who has the authority to act for the group, how are disputes resolved and how to get community business done. [71]

Good governance frameworks must be supported by principles of self-determination, free, prior and informed consent, non-discrimination, and the protection of culture. Good governance is compromised in the absence of these key human rights principles, which results in conflict, dysfunction and lateral violence rather than good governance and good outcomes.

One of the critical barriers to ensuring strong and sustainable governance in PBCs is the tendency to leave establishing governance frameworks until the end of the negotiation process rather than creating them at the beginning of the process. If appropriate governance structures are established early in the process, they can define the decision-making protocols and be a key source to manage conflict. They can also enable ongoing review throughout the process to ensure the structure accurately reflects and delivers the aspirations of the group.

An example of establishing governance structures early in the native title process is demonstrated by requiring a native title claim group to have an incorporated body or PBC that accurately reflects the group as a threshold requirement to access funding from the service to enter negotiations. [72]

McAvoy and Cooms argue that the early establishment of PBCs is necessary because the ‘capacity building that takes place on the way to the resolution of the native title proceedings is perhaps the most enduring outcome of the native title process':

Involvement in establishing a corporation and settling upon well thought-out and agreed decision making processes will also ensure that the claim group remains cohesive and that decisions are made according to a well planned process and are appropriately integrated into the structure of the corporations. It can also ensure the inequities present in any other corporate structures with which members of the claim group might be involved are exposed and rectified at an early stage. [73]

Establishing governance frameworks early in the process can also assist in avoiding conflict and lateral violence associated with the perceived issue of nepotism. [74] I argue that this is a perceived issue because the imposition of non-Indigenous forms of governance has distorted our own understanding of familial and community relationships and responsibilities, and our ways of governing. Hunt, Smith, Garling and Sanders articulate this as follows:

[Families] form the backbone of Indigenous communities and many local organisations, thereby linking an extended family group identity to organisational identities and forms of political representation. In this manner, extended families not only have a form of internal governance, they are also embedded into other layers of governance at community and regional levels, and outwards... The Indigenous family lies at the heart of values of reciprocity, mutual responsibility and obligation. Because of this, it is argued that these institutional rules of family life cannot be trusted in the world of capitalism, business management and profit making. [75]

Unfortunately, this lack of trust not only affects our relationships with external stakeholders but also influences our relationships with each other. This is particularly destructive in PBCs because they are established to manage and distribute the benefits acquired through a determination of native title and the negotiation of native title agreements. The effective management of these processes must be sustainable over the long-term. Good governance assists in ensuring this is achieved.

Again, I refer to the Argyle Participation Agreement to demonstrate how establishing appropriate governance frameworks that meet the needs of the groups involved can reduce the potential for lateral violence as a result of the effective management and distribution of resources.

My personal view is that this is a governance practice that you just can't buy in any other way ... that group on traditional lines came together, exercised traditional decision-making power ... They demonstrated the power of traditional decision-making and they constructed that group so it was a blend of men and women, old people, young people, the right composition of family. It held, the composition held, everybody came to every meeting, everybody worked hard at every meeting, it was just phenomenal. The old people were just sagging in their seats, they were so exhausted, but none of them left. [77]

The unique structure of the agreements reflects the aspirations of both Argyle Diamond Mine and the traditional owners that the agreements provide a firm base for an enduring partnership and sustainable prosperity for traditional owners during the life of the Argyle mine and once mining is completed. [78]

1. To administer the annual payments from Argyle to the individual families party to the ILUA.
2. To assist each family to develop an annual expenditure plan outlining specific community projects and initiatives.

The independent trustees are appointed by agreement of the ILUA parties and bring high level management, financial and community development skills to the trusts. [79] Traditional owners agreed that they are not representatives on trusts that manage other families business. [80]

(ii) Challenges to achieving good governance in the native title context

I am concerned that the Australian Government's own culture of governance in Aboriginal and Torres Strait Islander affairs is an entrenched barrier to overcoming this challenge – particularly as it is based on institutionalised forms of policy and control rather than empowerment and development. The result is that ‘Indigenous governance becomes a matter of all responsibility, but no power' [81] , and creates an environment that encourages lateral violence.

For example, where governments impose non-Indigenous legal concepts, structures and governance institutions through legislative and policy frameworks on Aboriginal and Torres Strait Islander peoples, they require:

• the incorporation of social groups into organisations
• the ordering concepts of democratic elections and voting systems
• the asserted primacy of individual citizenship over collective rights

• the statutory naming of newly-created categories of people on whom are bestowed specified decision-making rights, responsibilities and authority by the state. [82]

• engaging with governance structures established by government to facilitate access to lands and resources, such as NTRBs, NTSPs, Land Councils, and Indigenous Advisory Committees
• establishing negotiating committees to prepare for the establishment of formal governance structures, such as defining applicants in a native title or land rights claim, or determining who should negotiate an ILUA on behalf of the group
• establishing governance organisations in accordance with legislative and policy requirements such as NTRBs, NTSPs, Land Councils, Prescribed Bodies Corporate or Land Trusts
• incorporating governance organisations under government established and regulated legal frameworks.

These legislative and policy frameworks create ‘legal categories of people' – such as ‘traditional owners', ‘authorised claimants' and ‘native title holders' – who have to be registered and certified; and ‘councillors', ‘chairpersons', ‘bodies corporate' and ‘governing boards' who are required to operate under legal and constitutional guidelines. [83]

Governments must ensure processes that contribute to the effective functioning of the native title system progress native title outcomes and minimise the potential for conflict within these organisations and native title groups.

I also encourage the Australian Government to ensure that PBCs are able to independently access financial and technical support [84] to facilitate their successful establishment, capacity development, and to ensure they are well-functioning, sustainable and self-governing.

4.5 Conclusion

In this Chapter, I have discussed a number of options for addressing lateral violence in a native title context. In particular, I have highlighted the need to ensure that legislative and policy frameworks advance our development and empower us to reach our full potential in accordance with the Declaration on the Rights of Indigenous Peoples. I have also set out some examples of initiatives established by Aboriginal and Torres Strait Islander peoples and their organisations to transform lateral violence behaviours from negative interactions to positive engagement with each other.

I encourage Aboriginal and Torres Strait Islander peoples to continue to actively develop local solutions to lateral violence in their communities. However, governments and industry must work with us to ensure that their interactions assist us to prevent rather than promote lateral violence in our communities.

The recognition of our native title provides a unique opportunity for many Aboriginal and Torres Strait Islander peoples to overcome disadvantage. However, the native title system must operate in a way that empowers us to achieve this outcome. It must be supported by strong foundations that ensure our self-determination and enable our effective participation in decision-making. And the native title system must be developed with a holistic approach to overcoming the impacts of colonisation.

I look forward to watching our communities grow in their efforts to address lateral violence, and to working with governments and others to ensure their contributions to our communities are positive and empowering.

1. That targeted research is undertaken to develop the evidence base and tools to address lateral violence as it relates to the native title system. This research should be supported by the Australian Government.
2. That Aboriginal and Torres Strait Islander communities and their organisations work together to develop engagement and governance frameworks that promote cultural safety and comply with the United Nations Declaration on the Rights of Indigenous Peoples.
3. That all governments working in native title ensure that their engagement strategies, policies and programs are designed, developed and implemented in accordance with the United Nations Declaration on the Rights of Indigenous Peoples. In particular, this should occur with respect to the right to self-determination, the right to participate in decision making guided by the principle of free, prior and informed consent, non-discrimination, and respect for and protection of culture.
4. That the Australian Government pursue legislative and policy reform that empowers Aboriginal and Torres Strait Islander peoples and their communities, in particular:reforming the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, and address the provisions that permit discrimination on the basis of raceensuring that the National Human Rights Framework includes the United Nations Declaration on the Rights of Indigenous Peoples to guide its application of human rights as they apply to Aboriginal and Torres Strait Islander peoplescreating a just and equitable native title system that is reinforced by a Social Justice Package.
5. reforming the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, and address the provisions that permit discrimination on the basis of race
6. ensuring that the National Human Rights Framework includes the United Nations Declaration on the Rights of Indigenous Peoples to guide its application of human rights as they apply to Aboriginal and Torres Strait Islander peoples
7. That all governments, key organisations and industry parties working in native title, conduct education and awareness raising sessions on lateral violence for both Aboriginal and Torres Strait Islander and non-Indigenous staff.

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[8] Mabo v Queensland [No 2] (1992) 175 CLR 1. [9] P Keating, ‘Time to revisit native title laws', The Australian, 01 June 2011. At http://www.theaustralian.com.au/national-affairs/opinion/native-title-laws-retain-some-inequality/story-e6frgd0x-1226066685042 (viewed 24 September 2011). [10] Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures' (1995). Reproduced in [1996] Australian Indigenous Law Reporter 27. At http://www.austlii.edu.au/au/journals/AILR/1996/27.html (viewed 22 August 2011). [11] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008), p 4. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/chapter0.html (viewed 19 September 2011). 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