Brennan, Sean --- "Book Review - The Native Title Report July 1994 - June 1995 of the Aboriginal & Torres Strait Islander Social Justice Commissioner" [1996] AboriginalLawB 12; (1996) 3(79) Aboriginal Law Bulletin 34

• Book Review-The Native Title Report July 1994-June 1995 Of The Aboriginal &Amp; Torres Strait Islander Social Justice Commissioner

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Book Review -

The Native Title Report July 1994 - June 1995
of the Aboriginal & Torres Strait Islander Social Justice Commissioner

by Mick Dodson

Australian Government Publishing Service

Reviewed by Sean Brennan

By the time the Federal Native Title Bill reached the Senate in December 1993, the fundamental balance of interests between primary producers on the one hand, and Indigenous people on the other, had already been struck. Coalition and mining industry thickheadedness ensured that most of the last-gasp amendments passed by the Senate strengthened Indigenous interests.

One of those upper house changes required the Aboriginal and Torres Strait Islander Social Justice Commissioner to report annually to the Government on the operation of the Native Title Act 1993 (Cth) ('the NTA'), and its effect on the human rights of Aboriginal peoples and Torres Strait Islanders.

This is Commissioner Mick Dodson's second Native Title Report ('the Report'), and the first to cover a full 12 month period. With the continued development of policy expertise in the Social Justice Commissioner's office and more opportunity to consult with native title players, particularly the network of Representative Bodies grappling day to day with the complexities of the NTA, this Report provides a big picture snapshot of the effect of the operations of the NTA up to mid-1995, with plenty of fine grain detail. hi contrast, other native title publications, both book and looseleaf, have so far struggled to move beyond mere description of legislative provisions or predictions of (usually dire) consequences.

In five thematic chapters, the Report tackles large and important issues, such as proving native title in a court of law, claimants getting to the starting line, concerns about National Native Title Tribunal ('NNTT') mediation so far, how well the future acts regime is standing up to the Western Australian blowtorch, and the promise held out by regional and other agreements.

The first chapter illustrates the irresistible urge of lawyers to create complexity out of simplicity. In Mabo (No. 2) (Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1) the High Court avoided setting unrealistic standards for proving native title. Their Honours sought proof of the continued existence of a system of traditional laws and customs relating to land, by which Indigenous people maintain their communal native title as against the rest of the world - a tough race given the history of colonisation and dislocation. It was basically a straight line on a flat track between start and finish; but ever since the Meriam people got across the line in 1992, lawyers have been digging holes, erecting hurdles and suggesting rule changes. (In fact Commissioner Dodson concedes that his own Report perpetuates a process of 'lawyerfication' of native title. He promises to tackle more inclusive ways of addressing the complexities of native title in the next reporting period: see page 118).

The High Court sent a strong signal in their recent Waanyi. decision (orders were made on 8 February 1996, with reasons yet to be handed down at the time of publication) that when it recognised the existence of native title in Mabo (No. 2), it was not engaged in an abstract exercise in white conscience-clearing. Native title is meant to make a difference, it is meant to mean something, and non-claimant parties need to stop rabidly hunting for extinguishment and start negotiating the terms of co-existence with Indigenous people.

The High Court has kept its eye on a fundamental truth which many lawyers miss or want to ignore: in places all over Australia, connection to country survives, according to systems of Indigenous laws and customs. In Chapter 1, Commissioner Dodson turns up the heat on judges who want to 'refine' native title out of existence, by insisting on unrealistic standards of proof. He recommends a statutory presumption of connection back to the date British sovereignty was asserted, once the applicants adduce some evidence of continuing connection. Indigenous people are, after all, as entitled to the benefit of presumptions and common sense legal propositions as any other litigants.

But in the absence of substantial bargaining chips, the prospect of pro-Indigenous legislative reform is low, and once again it might be the courts which end up doing the parliamentarians' job for them. The Report quotes the following optimistic sentiment from justice Michael Kirby, recently elevated too the High Court, in the NSW Court of Appeal judgment of Mason v Tritton ((1994) 34 NSWLR 572) involving proof of native title (at 48):

'The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles'.

The High Court's displeasure with the indecent haste to find extinguishment in Waanyi offers some hope that the judiciary might yet pull native title back from an annihilating legalism.

In Chapter 2, the Report focuses heavily on Representative Bodies. Drawing in particular from the claims experience and the 1995 Review of Representative Bodies, Commissioner Dodson positions himself more firmly behind Representative Bodies as the best available vehicle to achieve the regional land aspirations of Indigenous people in a climate of finite resources and multiple pressures.

Nevertheless he resists joining a rising tide of opinion that such bodies should hold monopoly jurisdiction over the funding of claims within their region. His proposal is for a 'programme safeguard' operated by ATSIC as a 'limited exception to the exclusive funding of native title claims through representative bodies' (see Report, page 84). On this issue, the human rights perspective from which the Commissioner reports has a real significance, and challenges the pragmatism of the Review's authors and supporters. With proposed Government amendments on the subject facing an uncertain future, that debate has plenty of life left in it.

Generally, though, he endorses the Review and devotes considerable space to discussing its recommendations, in particular those directed to the accountability and representativeness of Representative Bodies.

Mediation is the subject of the next chapter, and once again it requires Commissioner Dodson to negotiate a fairly tricky path of critical support for the NTA. He acknowledges the value of negotiated outcomes in native title matters, observing that they are more likely to endure than a winner-takes-all decision in the courtroom.

However, a fairly deep scepticism about the fairness of native title mediation runs through the chapter, reinforced by two largely negative accounts of mediation involving Aboriginal groups on opposite sides of the country. The two case studies accompanying this chapter, dealing with with the Rubibi Working Group in Broome and the Yorta Yorta people of the Murray River country in southeastern Australia, provide a more personal insight into the hopes and disappointments of Indigenous claimants in the wake of the Mabo (No. 2) decision. With large areas under claim in both cases, both peoples reported a lack of constructive participation by State Government parties, a reluctance by others to embrace a broader agenda of social and cultural issues, a climate of local hostility, and a general inequality of bargaining power. They also reported exhausting demands on the time, energy and resources of claimants. For example, the Rubibi Working Group had seized upon mediation as an opportunity to evolve an agreed basis for decision-making about land and sea developments acceptable to Indigenous and nonIndigenous interests. They recorded 198 meetings in 212 working days during 1995, with transport problems, and work and other commitments, making wide participation and consultation difficult. There are reservations expressed about the NNTT's performance in transcending such shortcomings.

The case studies show in some instances mediation can be a sapping and expensive burden on claimants for marginal if any returns. Each mediation going on around the country, however, will have a different character, influenced by many factors including the size and contestability of the claim, the disposition of the State Government, and the flexibility, sensitivity and imagination shown by the mediator. The Yorta Yorta are described in the Report as 'guinea pigs to the system ... for mediating and determining native title claims ... still in its experimental stages'. Nationally all participants are still learning how to make the NTA work, and perhaps 1996 will see mediation yield some tangible gains in land justice for Indigenous people.

In the meantime, Commissioner Dodson has taken an initiative which might address some of the structural and cultural deficiencies he finds in the current mediation system; a research project examining local and international methods for incorporating traditional dispute resolution into native title mediations.

Chapter 4 looks at the future acts and right to negotiate regime. It begins sensibly by observing that the jury is still out on how well this important part of the NTA will work. Some State Governments and mining lobbyists were happy to condemn it without trial, while Indigenous groups worried over unnervingly short timelines and the absence of veto provisions.

While the picture is still evolving, the Report registers a number of conflicting signals. The most worrying one is the avalanche of work created for individual WA Representative Bodies by the sheer scale of mining activity in WA, particularly when combined with the tight time constraints embedded in the legislation and a hostile State Government. A lack of time and resources threatens the capacity of Indigenous people to exercise their rights concerning actions affecting their land, as it does their Representative Bodies' capacities to plan and prioritise actions.

The early statistics on response rates to the s29 notices, which are issued by a Government intending to grant a mining tenement over native title land, suggest the impossibility of keeping up with development pressures on a case by case basis. Commissioner Dodson is surely right when, in the final chapter, he predicts (and supports) a move to broad regional agreements between Indigenous interests, industry and Government concerning proposed future acts. Such regional land use agreements will permit more efficient use of resources and allow Indigenous organisations to regain some control of the development agenda. They will also ease concerns that in the battle over access to Indigenous land, the tactics of exhaustion might succeed where Constitutional challenge has failed.

The chapter on future acts also notes a variety of other pressures to crib and confine the right to negotiate. State Governments which release inaccurate maps, pre-judge controversial extinguishment cases, or pass the buck on native title protection to developers themselves have all done their bit. The NNTT decision of Re Irruntyju-Papulankuntja Community (Unreported, NNTT W095/7, 6 October 1995, Deputy President Seaman QC) seems to turn protective provisions into trade-offs, put the onus of proof on Indigenous parties, and rewrite statutory provisions in more miner-friendly language despite native title being grounded in traditional law and custom. (The decision reformulated references to interferences 'with the community life' of native title holders to 'physical interference').

The news is not all bad for native title holders and the Report notes two positive steps by the NNTT. The frequent practice of adjourning, rather than determining, unopposed non-claimant applications has ensured Indigenous peoples are 'not unnecessarily and permanently deprived of their native title interests to ensure the use of the land' (page 160). Similarly, in the period before O'Loughlin J's decision in Northern Territory v Lane (Unreported: see Vol 3, 76 Aboriginal Law Bulletin 21 [1995] ALB 55; 3(76)pg21) the NNTT adopted common sense policies about acceptance of claims lodged in response to s29 notices, to reduce the likelihood of claimants being beaten by the clock.

There is some overlap with Chapters 3 and 4 in the final chapter on negotiations and agreements. It is nevertheless instructive reading. For example, it quotes a recent paper by Mr Leon Davis, Managing Director of CRA, to show how far miners have travelled from the dark days of 1992-1993, at least at the rhetorical level. The Indigenous community can be forgiven for suspending judgment while the reality of mining company practice under the NTA is still unfolding.

Commissioner Dodson draws attention to complaints from both miners and Indigenous interests that it is in fact the State Government of WA which is standing in the way of constructive negotiation and agreement. In a (warranted) departure from the generally measured tone of the Report, he offers the following rebuke:

'If state governments are going to oppose negotiated outcomes when other parties have reached agreement, then resulting delays and uncertainty for the parties involved are the sole responsibility of these governments. Complaints by obstructive state governments about delays caused by the NTA must be understood as worthless hypocrisy' (page 192).

Critics have expressed considerable impatience with the. NNTT and the NTA, and particularly the absence after two years of any positive determinations of native title on the mainland. It was probably unrealistic, if understandable, to expect the players and the system to digest the large consequences of Mabo (No. 2)and the NTA overnight, and begin churning out results before now. Year 3 of the NTA's operation, however, should usher in some important developments.

Already we have the High Court's powerful endorsement of negotiation as the means for making native title work in Waanyi and a Regional Heads of Agreement between pastoralists, conservationists and Indigenous interests in Cape York Peninsula. Over the rest of 1996 we can reasonably expect to see the first positive determinations of native title on the mainland by agreement, the first future act arbitrations, and the States starting up their own tribunals to deal with native title issues. All fertile ground for Commissioner Dodson's third Report. In the meantime, his second Native Title Report is an important critique of current native title law, policy and practice, written from an Indigenous perspective.