Vivian, Alison --- "Conflict management in the native title system: a proposal for an Indigenous Dispute Resolution Tribunal" [2009] ALRCRefJl 11; (2009) 93 Australian Law Reform Commission Reform Journal 33

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Conflict management in the native title system: A proposal for an Indigenous Dispute Resolution Tribunal

By Alison Vivian*

One of the tragic outcomes of the current native title system is the extent to which it creates and exacerbates conflict within and between Indigenous communities.

These disputes delay the resolution of proceedings and impact on native title outcomes, but more importantly, frequently damage or destroy relationships. These disputes have such power to cause bitter and deep division because ‘native title is not just about land. It is about culture and way of life’.¹ In fact it is the very nature of native title and aspirations surrounding its attainment that too often leads to conflict.

Dispute arising from the native title system

Within the native title system itself, disputes arise between Indigenous communities, often relating to disputed boundaries and overlapping claims.

The Native Title Act 1993 (Cth) (NTA) requires precise boundaries to claim areas, yet as Justice Nicholson identifies, ‘tribal boundaries in Aboriginal Australia were frequently blurred and indistinct’.² Thus, a source of conflict is almost mandated by the legislation. Similarly, the NTA prescribes that overlapping claims, to the extent to which they cover the same area, must be heard together,³ regardless of different levels of readiness and potentially very different aspirations.

More damaging is conflict arising within Indigenous communities claiming native title. Disputes arise over exclusive versus inclusive concepts of ‘society’; whether a claim is rightly clan based or a claim to communal title; who within a community may speak for country; and who is entitled to benefit from any recognition. Painful questions of legitimacy may arise.

Accusations are made of claims made by people without traditional connection to country, altering equilibrium and cohesion between Indigenous people with different histories living on the same country. Community members, known for their role as peacemakers, have been forced to take sides at personal cost. Important evidence relating to law and custom may not be heard because of reluctance of elders and respected persons within communities to take sides. Historical feuds may be played out in the claim process and assertions causing harm and grief, once made, cannot be withdrawn.

Intra-Indigenous disputes can do irreparable damage to community and family relationships, but also may do serious damage to the merits of the claim itself. Litigation is a strategic enterprise. Claimants present their strongest case to be answered by respondents. Decisions are made about the evidence to be presented, witnesses to be called and submissions to be made about interpretations of the law and evidence, with the potential for interpretation in different but equally valid ways.

Indigenous combatants can do severe damage to the claims of others through attacks on the legitimacy of traditional laws and customs and challenges to continuity based on differing interpretations of law and custom. On occasion, these attacks are more pointed and sustained than those made by non-Indigenous respondents.

A need for an alternative approach

Disputes emerging from the native title system appear on their face to be intra-cultural in nature. However, native title exists at the intersection of Australian common law and the traditional laws and customs of Indigenous peoples.⁴ Thus, these disputes are of significant complexity, existing at the interface of two normative systems. In essence, legal questions are posed by the NTA—but are answered by reference to Indigenous laws and customs.

While it must be acknowledged that the resolution of disputes is hampered by loss of cultural identity and the weakening of protocols dealing with land or cultural authority, native title disputes differ from disputes over land arising from Indigenous people as between themselves. For example, native title determinations require the identification of artificial constructs, such as: what constitutes the relevant ‘society’, a conceptual tool⁵ and capable of various levels of aggregation;⁶ or whether rights and interests should be classified as ‘group’, ‘communal’ or ‘individual’, a statutory construct and one unlikely to be used by Indigenous people themselves.⁷

Australian courts have recognised that they are not the appropriate vehicle for resolution of these disputes. The Federal Court has repeatedly observed that the allocation of rights and interests and determination of membership of the native title holding group is properly a matter for the Indigenous community according to its laws and customs.⁸ The Court has identified that these are likely to be disputes between the registered native title body corporate and those claiming to be native title holders.⁹ Similarly, courts have preferred that resolution of intra-Indigenous disputes be resolved by mediation—with variable levels of success. More importantly, dealing with such disputes is the right and responsibility of Indigenous peoples as an expression of autonomy, exercising responsibility for the functioning of their own communities.

Appropriate vehicle for resolving disputes

The question arises as to what is the appropriate vehicle for resolving native title disputes. This is a question of significant complexity, with two sources of law co-existing in an environment where one so markedly dominates the other. Is it appropriate that there be indigenisation of existing mainstream justice systems or should an entirely separate Indigenous dispute resolution system be established? Alternatively, could a hybrid system be proposed?

Indigenisation of existing mainstream justice systems has the danger of legitimising the very institutions that have entrenched colonisation and marginalisation of Indigenous people. Indeed, there is the danger that Indigenous participation can delegitimise Indigenous authority, which may be compromised once adopted and rationalised by formal non-Indigenous systems.¹⁰ There is a question as to whether indigenisation of mainstream justice systems can be an adequate response to address Indigenous disadvantage and aspirations, or whether modification of institutions actually reinforces disadvantage by only adopting ‘aspects of Indigenous knowledge, values and processes that do not conflict with Western values and laws’.¹¹ Assistant Professor Dale Dewhurst terms this as ‘taking the mainstream adversarial system and pasting Aboriginal spirituality on top’,¹² while Professor Larissa Behrendt describes it as ‘attempting to make the dominant legal system more acceptable to Indigenous people’.¹³

One option may be to reject interface institutions entirely and promote the development of a separate Indigenous dispute resolution institution, operating entirely outside the dominant Australian legal system—a model illustrated by the Navajo court system which consists of a Supreme Court, District and Family Courts and a peacemaker program implementing Navajo law.¹⁴

However, it is the underlying ambiguity of native title disputes, being simultaneously intra-cultural and inter-cultural, that suggests the pragmatism of a tribunal at the interface of Australian mainstream law and culture and Indigenous law and culture, and not a distinct, coexistent system.

A specialist tribunal

The concept of specialist courts and tribunals is familiar within the Australian legal environment. Koori courts, family courts, drug courts and small claims courts are commonplace. Similarly, specialist tribunals dealing with a multitude of issues are familiar, with tribunal models varying enormously. Some have expert members, judicial members and lawyers. Some are inquisitorial, others adversarial. Membership of tribunal panels may vary in number and composition depending on the issue to be resolved and may consist of legal and non-legal members. The content of required expertise, whether legal or non-legal, and who is to provide such expertise primarily revolves around the nature of the issue. Thus, a specialist tribunal dealing specifically with intra-Indigenous disputes should not be controversial.

It is vital to its ultimate success that a tribunal professing to provide Indigenous dispute resolution processes embodies Indigenous values and has legitimacy with the people over which it presides. Dr Loretta Kelly and Professor Larissa Behrendt observe the need for dispute resolution processes that utilise Indigenous cultural values, reinforce those values and reassert Indigenous authority.¹⁵ They note the importance of reasserting Indigenous authority at the community and family level where Aboriginal people are ‘very much engaged with disputes and outcomes that are focused on issues that fundamentally affect the people involved’.¹⁶

However, a framework that overtly legitimises Indigenous authority is not in itself sufficient. Existing at the interface of Indigenous and non-Indigenous law, it is crucial that the tribunal have legitimacy within both Indigenous and non-Indigenous communities as a respected institution of Indigenous and non-Indigenous systems of law.

As described, disputes within and between Indigenous communities crystallised by the native title process are both intra-cultural and inter-cultural in nature. They are intra-cultural in that the resolution of dispute will require application of cultural norms in a culturally appropriate environment. They are inter-cultural in the sense that the question raised by the dispute is externally imposed: What is the ‘society’? Are the rights group or communal rights? Where are the boundaries, etc? Thus, it seems appropriate that an Indigenous dispute resolution tribunal should embody intra-cultural and inter-cultural sensibilities and may include Indigenous and non-Indigenous expertise.

There are no formal Indigenous legal institutions in Australia recognised by the Australian mainstream legal system. Indigenous courts applying Indigenous law as stand-alone institutions or within a genuinely pluralist framework do not exist.

Essential issues for consideration in establishing an Indigenous Dispute Resolution Tribunal

- Who should be members of the tribunal?

What are the qualities required of members and what range of expertise is needed? Clearly senior Indigenous people must be members but what other expertise is needed? Should expert anthropologists, historians and linguists be members?

- Should non-Indigenous people be members or should the tribunal be Indigenous only?

If there are to be non-Indigenous members, how are they to be selected and by whom?

- How is power imbalance to be altered?

Should panels always have a majority of Indigenous members? Would that be sufficient? Who has the final authority?If a non-Indigenous judge is sitting on a panel with two senior Indigenous people and there is not unanimity, how is the decision determined?

- Should tribunal members be appointed by the appropriate Minister or by Indigenous communities themselves? Is there a representative quality to the tribunal?

Judges in all jurisdictions in Australia are appointed by the appropriate Minister after a process of broad consultation but this process is controversial and open to criticism for political bias. Election of decision makers, as in the United States, however is open to populis pressure and threatens judicial independence.

- How should the tribunal be funded?

The tribunal would be funded by non-Indigenous governments. To protect it from political interference woould it be prudent to create an independent self-managing institution?

- What training will be required?

Currently, the only formal input by Indigenous people into the mainstream Australian legal system is in an advisory capacity in the Koori Courts in Victoria and other community courts in South Australia, New South Wales, Queensland, Western Australia and the Northern Territory.¹⁷ Examples do exist of non-judicial Indigenous decision-making bodies such as the Victorian Aboriginal Heritage Council—a body of Indigenous experts presiding over applications for status as registered protectors of Aboriginal heritage.

Internationally, a variety of Indigenous dispute resolution bodies exist within or adjacent to mainstream non-Indigenous legal systems, including the Tsuu T’ina First Nation Court in Canada, dispute resolution under the Nisga’a Final Agreement in Canada and the Waitangi Tribunal in New Zealand. These models may provide valuable input into the structure, function and jurisdiction of an Indigenous tribunal, including the recruitment and ‘qualifications’/qualities of the Indigenous decision makers, Indigenous-specific strategies and processes, utilisation of ‘expert’ input, and achievement of flexible and creative outcomes.

A full analysis of these models is not possible in this article, but five common features emerge:

1. ‘People and protocols’ must have legitimacy with the parties in dispute, especially where knowledge and understanding of cultural values and processes are paramount.
2. Processes must consistently demonstrate and embody Indigenous authority, with deference to Indigenous knowledge on cultural questions.
3. There must be a focus on community healing.
4. There must be flexibility and creativity in conceptualising and designing specific approaches for the particular dispute and particular parties.
5. Institutional change is required. It is not sufficient merely to attempt cross-cultural sensitivity; a pluralist environment must be created.

Disputes before the envisaged tribunal will vary considerably in the degree of contentiousness and an essential feature of such a body is that it must have authority, legitimacy and capacity to deal with the disputes over which it presides. Some disputes will be factual in nature, some will involve disputes relating to interpretations of traditional law and custom, and others will involve application of the NTA and judicial precedent. Most disputes will involve combinations of these elements. Because of the unique nature of the disputes, flexibility and creativity will be essential, with an ability to tailor an approach specific to the requirements of the parties.

Without wishing to be prescriptive, and cognisant that any model of Indigenous dispute resolution must be shaped by the Indigenous people involved and with a conscious intention to address power imbalance, a possible two-stage dispute resolution model is proposed. It consists of active facilitation followed by arbitration.

On referral to the tribunal, disputing parties would first meet with the Indigenous Registrar to discuss the parameters of the dispute and possible approaches to its resolution. The initial stage would comprise active facilitation conducted by an Indigenous mediator, elder or respected person or persons, or a combination of these people chosen by the parties from a pool of facilitators. Parties would also have the option to choose facilitators from outside the formal tribunal system. Facilitators might be chosen for their knowledge of the specific situation or their reputation with the disputing parties. Kelly and Behrendt identify the importance of local knowledge in resolving disputes—in terms of personalities involved, historical conflict, and an understanding of complex roles and family relationships.

Processes would be flexible and not bound by procedural technicalities but would be shaped by the parties and facilitator/s. There may be input from other sources—be it a conference of expert historians, anthropologists, linguists or panel of traditional owners and respected persons chosen by the parties. Referral of specific legal questions to an arbitration panel or judge for determination could occur. If there is no resolution from facilitation, the matter would be referred to an arbitration panel for binding decision, with flexibility and responsiveness to the parties in dispute again being central.

The size and composition of the panel would depend on the nature of the dispute—whether it was to be resolved by traditional law and custom, non-Indigenous law or was a question of fact. The panel may consist of senior Indigenous people resolving a boundary dispute; a panel of senior Indigenous people determining who is entitled to exercise what rights and interests; or a panel of legal members and senior Indigenous members determining the nature of rights or the aggregation that constitutes a society. Again, there may be input from a conference of experts or panel of senior Indigenous people chosen by the parties. As decisions of the tribunal would be binding, rules of natural justice would necessarily apply and applications for judicial review for jurisdictional error could be made to the Federal Court.

The creation of a system capable of tailoring an approach specific to each dispute will be challenging. However, despite any difficulties, the benefits are potentially transformative and are worth pursuing.

* Alison Vivian is a Senior Researcher with the Jumbunna Indigenous House of Learning.

Endnotes

1 L Kelly & L Behrendt, Resolving Indigenous Disputes. Land Conflict and Beyond (Sydney: Federation Press 2008),112.

2 Daniel v Western Australia [2003] FCA 666 (3 July 2003), [117] (Nicholson J).

3. Native Title Act 1993 (Cth) s 67.

4 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; [2002] 214 CLR 422, [31].

5 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] 145 FCAFC 442, [2005] FCAFC 135, [78].

6 Bennell v Western Australia [2006] FCA 1243 (19 September 2006), (Wilcox J) [424].

7 De Rose v State of South Australia (No 2) [2005] 145 FCR 290, [2005] FCAFC 110, [38].

8 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory ALR 539, [2004] FCA 472; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425; De Rose v State of South Australia (No 2) 145 FCR 290; [2005] FCAFC 110; State of Western Australia v Ward (FC) (2000) 99 FCR 316, [2000] FCA 191; Moses v State of Western Australia [2007]160 FCR 148, [2007] FCAFC 78.

9 State of Western Australia v Ward (FC) 99 FCR 316, [2000] FCA 191 at [213]

10 C Cunneen, ‘Community Conferencing and the Fiction of Indigenous Control’ (1997) 30 The Australian and New Zealand Journal of Criminology.

11 C Bell, ‘Indigenous Dispute Resolution Systems within Non-Indigenous Frameworks’ in C Bell & D Kahane (eds) Intercultural Dispute Resolution in Aboriginal Contexts (2004) 241, 243.

12 D Dewhurst, ‘Parallel Justice Systems’ in C Bell & D Kahane (eds) Intercultural Dispute Resolution in Aboriginal Contexts (2004) 213, 226.

13 L Behrendt, Aboriginal Dispute Resolution. A Step Towards Self-Determination and Community Autonomy, (Sydney: Federation Press, 1995).

14 See The Judicial Branch of the Navajo Nation <www.navajocourts.org> (accessed on 5 July 2008).

15 L Kelly & L Behrendt, ‘Creating Conflict: Case Studies in the Tension Between Native Title Claims and Land Rights Claims’, (2007) 8 Journal of Indigenous Policy—Indigenous Land: The War on Terra 73, 92.

16 Ibid.

17 Auty notes that while there is uniformity surrounding these initiatives, they are nonetheless ‘insistently individual’. K Auty, ‘We Teach All Hearts to Break—But Can We Mend Them? Therapeutic Jurisprudence and Aboriginal Sentencing Courts’ (2006) Vol 1 – Special Series, eLaw Journal 101, 104 <https://elaw.murdoch. edu.au/issues/special/we_teach.pdf> (accessed 4 July 2008).