Dodson, Mick --- "Power and Cultural Differences in Native Title Mediation" [1996] AboriginalLawB 61; (1996) 3(84) Aboriginal Law Bulletin 8

Power and Cultural Difference in Native Title Mediation

by Mick Dodson

Mick Dodson is the Aboriginal and Torres Strait Islander Social Justice Commissioner with the Human Rights and Equal Opportunity Commission. He delivered this keynote address (in slightly altered form) to the Second International Mediation Conference organised by Techsearch Business Services at the University of South Australia on 18 January 1996.

Picture this: a bush meeting.

The mediator is sitting in the middle facing the gathering. The government lawyers are sitting before him to his left. They are wearing neck ties even though it is 40 degrees in the shade. They have white zink cream on their faces so they look like they have painted up for this ceremony.

Behind them sit the pastoralists. They are nut brown men and stoic looking women. Their arms are crossed and they sit attentively, gravely looking on.

Facing the mediator to the right are the other lawyers. They have comfortable clothes and messy hair but they meet and match the formality of the government lawyers in their mode of address.

Behind them, as far back as possible but still within hearing range, sits a big mob of blackfellas.

The old men sit in front, very upright in their chairs. Despite the heat they are dressed in long pants, long sleeved shirts and some of them jackets. Children climb over and under their legs but they keep their attention fixed on the front.

Behind the old men are the women and younger people, they sit in their family groups in silence but the buzz of excitement is palpable.

In this scene where is the line of cultural difference?

The obvious one is Indigenous and non-Indigenous.

The cultural difference that exists between these groups is real and important. In my experience, Aboriginal people do not ordinarily use verbal confrontations, insults, interruptions, objections, etc as a rhetorical device in argument. Lawyers do. Non-Aboriginal people are generally familiar with this and understand it as theatrics.

But for Indigenous people, verbal confrontation is often the start of violence. Lawyers in land claims have to be very careful to modulate their performances.

There are many other examples of meanings that get muddled in translation between cultures. These muddles occur in urban and rural settings as well as in the bush.

Other types of cultural difference operate in my mediation scene that we would do well to notice before passing over them. Cultural differences exist between men and women, between the young and the old and, significantly, between lawyers and everybody else. Mediators and participants should acknowledge the gaps and similarities between and among these groups because they create unexpected alliances and exclusions.

But I want to put a proposition that may be controversial: in native title mediation, power imbalance is more important than cultural difference.

Power imbalance in native title mediation is manifested on cultural lines: the Indigenous side is less powerful than the non-Indigenous side. But the reasons for this are not inherent in the differences between the cultures.

The reasons are historical and economic.

The upside of this is that the power imbalance in native title mediations can be addressed. The downside is that if it isn't, no decent bargains will be produced through native title mediation.

The only way compromise of native title claims will produce fair deals is for the Aboriginal side to have sufficient time and resources to participate. The non-Indigenous side must also show a will to achieve reconciliation not simply continue to profit from the historical and economic oppression of Aboriginal people.

The system for mediating native title claims

The High Court recognised native title for the first time in 1992. After the euphoria died down, the government realised that it must create a quicker, cheaper mechanism for the recognition of native title. It had taken Eddie Mabo and the Mer Islanders ten years and millions of dollars to get recognition of their rights. To force all other Indigenous people to pursue the same gruelling road was unacceptable.

Justice French, President of the National Native Title Tribunal, has said:

`All the money in Australia would be insufficient to pay the bill if all native title claims were litigating in the courts.'

The government set up the National Native Title Tribunal. It has a range of functions but principally, it is the body that mediates native title claims. The Tribunal attempts to mediate native title claims by applying interest-based negotiation. According to the President of the Tribunal, it requires the parties to:

1. Identify their own and others' real interests and objectives;

2. Consider a variety of options to accommodate those interests;

3. Develop a criteria of legitimacy to test the fairness of agreements that might emerge from the process; and,

4. Consider the best likely alternatives to a negotiated outcome.

Enter mediation!

Mediation has been touted as the cure for all kinds of ills over the last twenty years. So it was predictable that it would become a linchpin in the native title system.

The central problem for mediation of native title claims is power imbalance. A mediator is not a judge. A mediator cannot force justice on the disputing parties. The mediator will attempt to ensure equality of process. Both parties get a say, the mediator allows neither party to interrupt, etc., however, where there is gross disproportion in the power of parties to a dispute, a mediated settlement is likely to enshrine that inequality.

Simply put, the biggest single operating cause for this power imbalance is dispossession. All the various implications of dispossession can't be summarised here. I will just give you a few examples of the impact of dispossession in native title mediations.

Most native title claimants feel that the odds are stacked against them. The process works like this: Indigenous people have to prove that they have a connection to land. Other parties don't have to justify their expropriation of Aboriginal land.

Mediators might object at this point that, in mediation, nobody has to prove anything. This may be true but it is not the experience of claimants who have been through mediation to date.

According to the structure of the system and the perceptions of the non-Indigenous participants, the claimants come to the table without recognised rights. Whereas all the other parties have rights that are already sanctioned by law.

The claimants are told they should provide evidence of the plausibility of their claim to be taken seriously by the other parties to the mediation.

Claimants feel the injustice of this situation very keenly. Contrary to the perception of the non-Indigenous parties, the claimants will often believe that they are the only people at the table justified to speak about or for the land. A Yorta Yorta elder expressed her disgust with the claims process with these words:

`These photographs on the wall and all this history, that's just a sample of our culture here. So why do we have to prove ourselves to some drunk down the road? Why aren't the other people made to prove by what authority they are on our land? It is an insult to our people.'

This gulf is the context in which all negotiations over native title will occur. If mediation is managed properly and all parties approach it in good faith, the process might help to close this gap. The idea is, of course, that both sides of the dispute will come to understand each others' claims and expectations and find acceptable accommodations.

Unfortunately there are reasons why it's not working too well. As it stands the process allows too many people to become parties to claims.

The statutory definition of a `party' requires something more specific than a public interest in the area. However, the definition allows a person with a limited interest, such as a short-term licence, to become a party to the claim.

The government probably did not anticipate the numbers this creates in mediation. In the Yorta Yorta claim, for example, about 470 people were accepted as parties to the claim. The Yorta Yorta claimed only government owned land. They did not claim any land that was privately owned or subject to leases. The interests of the parties were all held by licence or permit and most were short-term and subject to renewal. The interests included grazing, irrigation, agistment, timber and tourist licences.

Anyone who has run a mediation or participated in one, knows that the odds are against resolution if you have large numbers of parties. Basic tasks like finding a venue to fit nearly 500 people, ensuring that they can all hear each other and that they don't get into a brawl are difficult. For the claimants the presence of that many hostile locals is inhibiting. I reckon it's a bit like playing the Eagles at the WACA or Collingwood at Victoria Park!

For the claimants it is probably worse than that because after the game they don't get to hop a plane or a bus out of there. They have to live with the hostility and aggression that claims almost inevitably generate. This hostility is not just depressing and stressful it has substantive effects on their capacity to maintain stamina in negotiations. In the end it will impact on the outcome of a mediation.

I propose two antidotes to the possibility of the mediation becoming a pitched battle with the claimants pitted against the whole town.

First, the effectiveness of mediation relies upon governments taking a more constructive role in mediation in this respect and in others. The state government should negotiate with the claimants on behalf of people with short-term interests. The government effectively controls whether these people will have a continuing interest in the claim area and it is therefore appropriate that the government negotiate for them.

Second, better and more extensive public education needs to take place in communities affected by claims. I am not so naive as to believe that a basic education in Aboriginal history will eliminate all racism and ignorance but it might make a dent.

Power imbalance in native title mediation

If you are Aboriginal in this country, chances are, you will not be all that familiar with fair treatment from governments and land developers. Aboriginal people haven't had much of a chance to get used to having a say in decisions affecting our land.

Native title has the potential to give some Aboriginal people a say and perhaps even more. But this doesn't mean that Aboriginal people will suddenly have their aspirations and ambitions packaged ready to trade with governments and developers.

It is going to take time for people to work out what they want from the process and to imagine the kind of relationships they could develop with their neighbours and the government. Clearly, claimants need resources to investigate the possibilities for agreement. They need to research, posit ideas and then get authorisation for their negotiating positions.

The history of denial of Aboriginal rights creates consequences for the mediator. The Tribunal's motivation is to produce agreements. This might seem to be a neutral agenda but because of the context of power imbalance it creates a problem for claimants. The claimants are likely to be the group, in any mediation, whose interests are the hardest to define and describe.

Because native title is at the core of Indigenous identity, every native title claim will have a complex social dimension and significant social consequences. As a result, the claimants will be unlikely to be able to produce a neat list of wants and wishes to present to the parties at mediation.

Developers, on the other hand, have quite defined priorities with respect to claimed land. They want to do things to it. They generally have fairly clear ideas about what it is they want to do, when they want to do it and why. For a third party, who only wants to broker agreements as soon as possible, it is tempting to allow the people with the most clearly identified interests to set the agenda.

Unless structures exist to ensure that the claimants can meet and respond to the agenda set by developers, mediation will not produce fair or enduring agreements.

The structures I envisage include the creation of a research facility to provide assistance to Indigenous communities and organisations and the implementation of bottom line conditions for negotiation based on international human rights standards.

Without these necessary structures we are reduced to saying yes or no to proposed developments. Negotiations will revolve around how the claim can be made to fit within existing patterns of land use and development. The best outcome for the Indigenous side would then be the imposition of a few conditions on the development.

But this result is not inevitable and more importantly it is not fair. Discussions between native title parties and prospective users of native title land do not have to revolve around a proposed future act or conventional patterns of land use. Instead, negotiations could operate to an agenda that emphasised, for example, cultural issues, community development and the preservation of ecologies. Proposed development could be discussed in terms of its consistency with Indigenous aspirations on these issues. Industry positions would then have to be relevant to the way Indigenous peoples might want to divide up the world and not the other way around.

Given adequate resources and time Aboriginal people will design these alternative agendas. Native title mediation may then become a truly cross-cultural negotiation instead of a coercive and predetermined story in which Aboriginal people have their limited role already scripted for them.

Many representatives of claimants have complained that the Tribunal organises too many meetings. In the Broome native title mediation the claimants' working group had 198 meetings in 212 working days.

This staggering figure shows the pressure the claims process places on claimants. Although the Tribunal has acknowledged this, they haven't adjusted the mediation schedule accordingly.

Perhaps the Tribunal is responding to the demands of non-Indigenous parties in setting meeting schedules. But their schedules must build in an acknowledgement of all the other things claimants have to do to mount a claim and the limits of the claimants' stamina.

The Tribunal, government and industry representatives are usually paid to participate in negotiations. They have transport, administrative support and access to advice. The claimant representatives are often pensioners or unemployed, have no transport, no spare money and limitations on their access to advice.

Given the number of meetings people are required to attend, it is vital they are arranged in a way that allows the claimants to participate in the process.

My scenario at the start of this paper is very typical of the first day of a land claim hearing in the Territory. The spatial arrangements, which are becoming a feature of native title mediations, predict and determine that the process will be a conversation between the lawyers and the judge. Claimants will feel and indeed will be very much on the periphery.

Fixing up the seating arrangements is not going to solve historical and economic inequality but it can make a big difference to the claimants' experience of the process. Simple measures, like the lawyers sitting behind the claimants, give the claimants a sense of being in charge of the claim (and the lawyer).

The Aboriginal Land Commissioner has an interesting way of breaking up the conventional court room set up. He goes and sits right near the Aboriginal witness who is giving evidence. There is no amplification, so anyone who wants to hear has to come around too. This means that the Aboriginal speaker is the centre of the process and the lawyers are marginalised.

Another basic tip that goes a long way when you are dealing with Indigenous people (or anyone else for that matter) is to speak in plain and clear language. Native title as a concept is complex and difficult enough without the further mystification of lawyer-speak.

Government attitudes

So far, I have mentioned measures to improve the mediation process and to help claimants participate. Even if we got all these things 100% right, native title mediation will fail if governments refuse to engage constructively.

Governments need to get behind the process of mediating over native title. There is no point in governments believing that their best alternative to a mediated agreement is to ignore Indigenous peoples or to beat us with a legal stick. Arid court decisions about extinguishment will simply not be the end of it for governments.

So far, it appears that state governments are more interested in shooting claimants out of the water with legal arguments than in finding agreed solutions. Governments regularly withdraw from mediation when they believe they have legal grounds to assert that native title is extinguished. When they think they have some legal ammunition they lose interest in the needs and aspirations of Indigenous people.

Perhaps the best example to date of government intransigence is the Wellington Agreement.

The Wellington Agreement arose out of a native title claim to the Wellington Town Common lodged in January 1994. An agreement was produced after mediation and was signed by all the parties to the claim except the NSW Government.

The present Government's position is that to become a party to the agreement would involve acknowledging native title. The government will not make this acknowledgement unless the claimants provide credible evidence to support their claim to be the native title holders for the area.

The Wellington Town Council and the Trustees of the Common are satisfied that the Wiradjuri People are credible enough. They are also satisfied the agreement sets terms of a relationship that is workable. Why does the government need any more evidence than the bona fides of the claimants?

The Wellington Agreement is an opportunity for the government to demonstrate its own bona fides by signing it and allowing it to become the first determination under the Native Title Act [1993 (Cth)].

Reading the agreement, it is hard to imagine why the government does not take this opportunity. It is hardly the kind of document that will shake the foundations of the state or even the administration of the Wellington Common and all the other parties to the claim agree to its terms.

Thus, despite the time, energy and goodwill put in by all those directly affected by the claim, the matter will not end in agreement. The intransigence of the NSW Government has caused the claim to be referred to the Federal Court where it now awaits arguments.

Even if governments can defeat some native title claims in the courts, they are still going to have to deal with Indigenous demands for land justice. We are not going to go away and we are not going to allow our connection to country to be ignored.

When the claimants come to native title mediation they bring the memory and suffer the effects of historical racism and dispossession. They invariably have very little money to complete their research, to consult with the claimant group and get people to meetings. The process forces them to adopt positions quickly to respond to the timetables of governments and developers. The pressure on claimants due to inadequate time for consultation is extreme and their workloads are almost insupportable.

During mediation, claimants face community ignorance and antagonism and the intransigence of government. These circumstances contrast with the conditions necessary for the conclusion of lasting agreements. In Canada, comprehensive regional settlements have been achieved after decades of negotiation and work. Indigenous people took time to imagine, formulate and debate options. Community decision-making processes were developed which allowed for participation adapted to Indigenous needs.

Other essential ingredients for regional settlements are community good will and government determination to go past rhetoric and achieve reconciliation.

On this comparison, it is clear we have a long way to go before we have what it takes to make lasting settlements of native title claims. It would be heartening to report that we are at least on the right road but, at present, I cannot.

Claimants lack the resources and assistance they need to negotiate as equals. By fine-tuning the mediation process the Tribunal can improve claimant's experience of it, but such change will not affect the power imbalance that exists outside mediation meetings. The Tribunal probably cannot redress historical or resource inequality but it must not conceal it. If, in any particular mediation, this inequality seems likely to lead to an unfair bargain, then mediation is inappropriate and the Tribunal should acknowledge this.

For mediation to work, as a means to resolve native title claims, the context must promote equal bargaining. The government, the Tribunal and other stakeholders must work to create the conditions necessary for long-term, comprehensive settlements.