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Summerfield, Tracey --- "The Native Title Representative Body Regime: A Site of Cross - Cultural Tension and Political Vulnerability" [2000] IndigLawB 22; (2000) 4(28) Indigenous Law Bulletin 10


The Native Title Representative Body Regime: A Site of Cross-Cultural Tension and Political Vulnerability

By Tracey Summerfield

Native Title Representative Bodies (‘NTRBs’) are incorporated bodes ‘recognised’ under the Native Title Act 1993 (Cth) (‘the Act’)[1] for the purpose, amongst other things, of representing and assisting Aboriginal and Torres Strait Island peoples in matters relating to native title.

The original NTRB provisions of the Act were amended with the passage of the Wik legislation in 1998.[2] These amendments were drafted partly in response to the dissatisfaction of some Indigenous communities with what they perceived as a lack of clarity in the existing NTRB regime. [3] These communities wanted clearer lines of accountability between NTRBs and the people whose interests they represented.

The amended Act specifies the functions that NTRBs must perform. They are:

Overarching these functions are a range of principles relating to NTRB organisational processes and structures, which provide statutory guidance as to how NTRBs are to fulfil their functions. These principles include requirements to:

In addition, there is a ‘streamlining’ provision which aims to ensure cost-effectiveness, efficiency and the minimisation of applications,[7] and a requirement that NTRBs prioritise their functions with a view to protecting NT interests.[8]

If NTRBs fail to adequately perform any of these functions or implement any of these principles, they may, as Rashid points out, be liable on a range of grounds.[9] It is presumably on the same grounds that the Minister retains the discretion to withdraw NTRB recognition.[10]

The Parker Report[11] was completed before the Rashid Report and its recommendations were incorporated into the 1998 amendments. Parker pointed out the need for mechanisms for ensuring that NTRBs have structures which facilitate adequate representation and accountability, based on the expectation by both government and Indigenous people that:

NTRBs not only ...operate and structure themselves to ensure equitable, ‘democratic’ access to their services, but also to do so in a manner that is culturally authorised by Indigenous society.[12]

The expectation to which Parker refers is at no point made explicit in the Act. Furthermore, if ‘democratic’ systems are to be ‘“culturally authorised” by Indigenous society’, it is probable that this will call for some compromise of or by Indigenous tradition. The unwritten burden on NTRBs that I am concerned about is their implicit responsibility to synchronise the requirements of Indigenous and non-Indigenous law in relation to native title applications.

Taking the example of the consultation function, one might ask what test will be applied by a court or by the Minister to demonstrate whether a NTRB has satisfactorily performed it. From the language of a number of the provisions of the Act, it would appear to be the test of the ‘reasonable person’: a test of Anglo-Australian law, reflecting Anglo legal traditions. Similar observations may be made in relation to the Parker Report’s use of the terms ‘equitable and democratic’, which are similarly part of a western liberal political tradition.

Although native title does not constitute a wholesale recognition of Indigenous law by the Anglo-Australian legal system, NTRB constituents (who, if they are from a range of communities will or may have different legal and political traditions of their own) might reasonably expect NTRB processes to be consistent with their social, legal, cultural and political practices.[13] If NTRB processes do not reflect these practice, or if agreement as to what they are cannot be obtained (see below, certification) it is reasonable for constituents to become disgruntled. This may lead to internal disputes or external complaints generating political instability within the organisation and, in the extreme example, result in litigation or de-recognition of the NTRB.

In order to maintain its recognition as an NTRB, and to meet its statutory obligations, it is vital that NTRBs maintain a good relationship with their constituents. At the same time, it is vital to recognise that NTRBs will be dealing with as many traditional processes as there are claimant groups within each native title application.

Illustrating the Tensions

The examples below illustrate how the problems outlined above may play themselves out when NTRBs try to perform their functions consistently with the principles and other requirements of the Act.

Future Act Notices

Section 29 of the Act requires that a native title claim be lodged within three months of the date provided on a future act notice.[14] The NTRB must, within this time, facilitate and assist the native title claimants, consult with and have regards to the interests of any of its constituents who may be affected by the matter,[15] ensure that consent is properly given according to community law or practice,[16] and streamline applications to ensure cost-effectiveness, efficiency and the minimisation of applications.[17]

A NTRB must ensure as far as is reasonably practicable that future act notices are brought to the attention of any person who holds or may hold native title in the area and advise them of timeframes for responding.[18] The Act not only requires that NTRBs notify those it knows to be concerned with the area, but also that NTRBs actively attempt to identify any such persons not currently known to it. This suggests a more active duty than merely sending notices to a contact person in a community, and relies upon a reasonable relationship with the community.

The first of these requirements necessitates an intensive focus on culturally appropriate consultative processes. In some cases, particularly in remote communities, where distance makes communication difficult, funding restrictions may mean that legislative timelines are only met at the expense of appropriate processes for representation and consultation. This would open NTRBs up to internal criticism from constituents and claims that it is not effectively meeting its full mandate, which could have implications for its relationship with its communities, and for its funding and in the extreme example could result in its de-recognition.

Certification

NTRBs are responsible for ensuring that native title applications and Indigenous Land Use Agreements (‘ILUAs’) are properly authorised by relevant members of the community.[19] The NTRB must declare that reasonable efforts have been made to ensure that all persons who may hold native title in the area have been identified.[20]

If a NTRB refuses to certify a native title application or ILUA,[21] its ‘decision-making process[es are]...open to attack on both negligence and administrative review grounds’.[22] Liability for negligence may arise if the Registrar rejects an application on the basis that inadequate information was provided, even if the NTRB satisfies minimum requirements.[23] Any of these actions, and allegations that a NTRB has lost the ability to coordinate and prioritise the management of native title matters in the area might also place the NTRB is at risk of an assessment by the Minister that it is failing in its duties.

These examples provide an indication of the difficulties that might arise for NTRBs in attempting to discharge their statutory duties under the Act. The way in which NTRBs manage the competing demands of the regime will have implications of a legal, political and cultural nature in relation to NTRB constituents, government and the wider community.

The new regime may well ‘professionalise’ NTRBs from an Anglo-Australian viewpoint, giving certainty to government and to industry. It may even generate a greater degree of certainty for Indigenous communities by enshrining principles of constituent representation and participation in organisational structures so that constituents may intervene and raise issues before they become disputes. However, the fact remains that the issues surrounding cultural appropriateness are not explicitly addressed in the Act, and may be frustrated by the substantive provisions which impose such stringent time constraints on NTRBs that they cannot, for example, engage in effective consultation with constitutents. The possible effect is that the NTRB may be seen to be unrepresentative of their constituencies when, if fact, they are operating according to the requirements of the Act. This could give rise to constituent dissatisfaction, NTRB political instability and finally, given the scope of Ministerial discretion, government intervention.

Mantziaris and Martin recommend a guide for operations to assist Indigenous organisations to create a match between legislation (a product of the Anglo-Australian system) and Indigenous needs.[24] This may be a useful strategy for working with what exists and accommodates the push for increasing ‘professionalisation’. However, this does not counter the real difficulties for Indigenous organisations of carrying the burden of balancing the cross-cultural conflicts which arises when one legal system insufficiently recognises another. The real challenge is, to cite Nettheim,

...how best to provide for the co-existence of forms of land holding and governance under Indigenous laws with those under Australia laws. It is a challenge in terms of legal pluralism and cross-cultural statespersonship. Both forms of law – Indigenous and Australian – may need to be adapted in order to achieve a satisfactory inter-relationship.[25]

To suggest the beginning of a solution, it must be recognised that engaging with Indigenous processes requires more than simply creating a tokenistic duty to ‘consult’, ‘represent’ and have appropriate organisational structures. Cultural appropriateness requires a rethinking of the complexities of cross-cultural engagement and the adequate provision of resources so that these complexities may be adequately addressed.

Tracey Summerfield is a PhD candidate and sometime academic at Murdoch University Law School.


[1] Note that NTRBs are not created by the Act. Rather, they are pre-existing bodies, most of which are incorporated community-based Aboriginal and/or Torres Strait Islander organisations, such as land councils or legal services.

[2] Native Title Amendment Act 1998 (Cth), known as the Wik amendments of legislation because of the native title determination in Wik Peoples v Queensland (1996) 187 CLR 1, which prompted public calls to change the original Native Title Act 1993 (Cth).

[3] See excerpts from submissions to: Parliament of the Commonwealth of Australia, The Native Title Amendment Bill 1996: Sixth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (November 1996) 69-82. Cf Aboriginal and Torres Strait Islander Commission, Review of Native Title Representative Bodies ATSIC (‘the Parker Report’) (1995) 16-23.

[4] Act s203B. Each of the functions are elaborated in subsequent provisions.

[5] I use the term constituent to denote NT and potential NT holders in the NTRB’s jurisdiction.

[6] Act ss 203BA, 203AI.

[7] Act s 203BC(3).

[8] Act s 203B(4).

[9] Aboriginal and Torres Strait Islander Commission, Review of Native Title Representative Bodies (‘the Rashid Report’) (1999) 33-34. See below, ‘Illustrating the Tensions’.

[10] Act s 203AH.

[11] Above n 3.

[12] Ibid.

[13] Behrendt has observed that not only are the values and practices of Aboriginal peoples diverse in themselves, but may be distinguished from non-Indigenous practices in a general way. Larissa Behrendt Aboriginal Dispute Resolution (1995) 27-30.

[14] Act s 30(1).

[15] Act s 203BC(a)(a).

[16] Act s 203BC(2).

[17] Act s 203BC(3).

[18] Act s 203BG.

[19] Act s 203BE.

[20] Act s 203BE(5).

[21] Ibid.

[22] Above n 9, 33.

[23] Ibid.

[24] Above n 13.

[25] Garth Nettheim, Discussion Paper 1 – Introduction and Overview: Governance Structures for Indigenous Australians On and Off Native Title Lands, (1998). Available at http://www.austlii.edu.au/au/special/rsjprojects/rsjlibrary/arccrp/dp1.html.


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