Ritter, David --- "Doing the Business: A Few Observations on the Working Group Model for the Provision of Native Title Legal Services" [2003] IndigLawB 65; (2003) 5(28) Indigenous Law Bulletin 12

• Doing The Business: A Few Observations On The Working Group Model For The Provision Of Native Title Legal Services

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Doing the Business: A Few Observations on the Working Group Model for the Provision of Native Title Legal Services

by David Ritter

A challenge faced by native title representative bodies in discharging their functions under the Commonwealth Native Title Act (‘NTA’) is the complexity of taking instructions from the community of traditional owners. There is an attempt to establish an instruction giving mechanism within the NTA, requiring the claim group to appoint a person or persons to be ‘the applicant.’[1] In practice though, native title claims are rarely administered via the apparently simple apparatus that is prescribed.[2] Rather, a variety of other structures that operate by convention rather than legislative fiat[3] have been widely employed.[4] One of the commonest means of overseeing native title claims is through the establishment of a working group, a phenomena that, although widespread in the native title arena, has received little commentary.[5] [6]

A ‘typical’ working group meeting[7] will involve legal updates, consideration of the progress of the claim, notifications under the NTA,[8] selection of cultural heritage survey teams and dealing with resource companies and government pursuant to the future act system.[9] Indeed, the nature of statutory native title business is so remarkably broad that working groups become far more than just instruction-giving mechanisms.[10] Along with the applicant’s warrant to execute documents,[11] the advice and secretariat support of lawyers and other technicians and the operation of Indigenous law itself, working groups are, in a very meaningful sense, structures of governance enmeshed in a system with checks and balances and some clear separations of power.

Given that Indigenous governance is so widely seen as problematic, the success of the working group model[12] would seem worthy of observation.[13] An obvious strength of the working group system is that the group makes its own decisions and gives instructions. The autonomy of working groups is in some contrast to the process that may take place when a government bureau consults an Aboriginal ‘reference group’, in order to then go away and make a decision in accordance with policy. Working groups perhaps also benefit from being unincorporated, rendering them relatively free of procedure and the external scrutiny to which most Indigenous entities seem endlessly subject.

Working groups perhaps also endure because their meetings are true theatres of cross-cultural exchange. Transactions that take place in working group meetings can be beneficial and transformative in terms of the relationship between parties. Rapport built in a meeting between a proponent and a working group can make months – or years – of difference in project approval timeframes; or might mean the success or failure of a government initiative.[14] The political culture within the working group can also mature as a consequence of such engagement.

Notwithstanding that Australia has now experienced a decade of ‘Doing Business with Aboriginal People’ under the NTA, there are still plenty of lapses in accepted best practice: company ‘agents’ attempting to manoeuvre wide of Indigenous structures to try and do a faster and cheaper deal;[15] visitors thinking that their non-English speaking audience will understand IF THEY SPEAK MORE LOUDLY AND IN A VOICE REMINISCENT OF TIM BROOKE-TAYLOR[16]; and senior decision makers regarding meetings with claimants as a costly and time-consuming extra that should be avoided in favour of a reliance on lawyers meeting with bureaucrats somewhere, far away, in a capital city. Professor James Tully has identified the fundamental point that the negotiation process is “not only an interest [or rights] - oriented practice governed by one set of procedures, but also an identity-oriented practice aimed at mutual understanding.”[17] Even a ‘fair result’ may be unsatisfactory and breed new resentments if there is not a proper human element to the transaction.[18]

Although the working group is arguably a very positive product of the much-maligned native title system, the ongoing success of such entities is massively uncertain. In a world of widget-counting, a functioning social mechanism is not the easiest ‘output’ to quantify. The effectiveness of working groups is also contingent on the proper funding of native title representative bodies, which continues to decline in real terms.[19] Indeed an inability to afford meetings with the claim groups which they represent goes to the heart of the impact of the hideous shortage of resources to native title representative bodies. Finally, where a native title claim is unsuccessful, it is hard to imagine a working group surviving in the void, while native title when won, must be administered through the troubled prescribed body corporate system. It is just another irony of the native title system that the ‘winners’ of native title claims have so little choice about how they administer their own property.

David Ritter is Principal Legal Officer of the Yamatji Marlpa Baba Maaja Aboriginal Corporation, native title representative body for the Pilbara, Murchison and Gascoyne regions of Western Australia; doctoral candidate in history and law and visiting fellow in law, University of Western Australia.

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[1] The applicant then has delegated power to make decisions about the conduct of the native title claim, for so long as it continues to the authority of the claim group. Predictably enough, the sections of the NTA which govern the relationship between claim group and applicant are among the most litigated in the Native Title Act. For a digest of the relevant sections of the NTA and case law see the LexisNexis Native Title Service at “[1723] Relationship between native title applicants and the native title claim group”.

[2] Explaining why is not so easy - there is no immediately obvious reason. To some extent cultural factors are at work. Much probably comes down to the complicated micro-histories of how each claim has developed, been combined with others, amended and so on.

[3] A legislative decree or order.

[4] Although a working group can be grafted on to the statutory scheme quite easily – it is merely a matter of the claim group and the applicants jointly delegating some authority to the working group, while retaining their ultimate statutory powers.

[5] Perhaps the earliest instance of a native title working group was the Rubibi Working Group, set up in 1995 to facilitate the inclusive representation of the relevant native title claimants in their dealings with the outside world: see B Gloweczewski, “The meaning of ‘One’ in Broome, Western Australia: from Yawuru tribe to Rubibi Corporation”, Aboriginal History, 22, 1998, 203-222. The Rubibi Working Group worked as a cultural interface: acting as the mechanism for lawyers from the Kimberley Land Council to take instructions; meeting with third parties; exercising some delegated authority from the wider community of traditional owners and having responsibility to disseminate information back. The Rubibi model has, since its inception, been imitated as an exemplar. In the Geraldton and Pilbara region for example, the thirty or so native title claims represented by the representative body are all ‘run’ by working groups and have been, with continuity and success, for years. When the first of these were established, they were consciously styled on the Rubibi precedent. The most venerable – the Nanda and Badimia peoples’ working groups have been operating with significant continuity of membership, practice and representation, since 1997-98.

[6]

[7] In the author’s personal experience – but it is difficult to generalise, for the reasons mentioned in n 8.

[8] This is a statutory function of native title representative bodies: s 203BG NTA.

[9] See part 2, division 3 NTA.

[10] Registered native title claimants get ‘consulted’ about a huge variety of matters – some with an obvious statutory base, others without.

[11] Founded on s 62A NTA, but see n 1.

[12] The idea of a working group ‘model’ should be treated with some caution, because there is great variation in the way that different working groups operate.

[13] The view that working groups ‘work’ is of course contingent on the position of the commentator: what do the participants themselves think? What do their constituents think? What would ethnographic study tell us? What does the ‘other side’ - industry and government - think?

[14] Not empty words: both have occurred often enough within the author’s practice.

[15] It doesn’t work: so called ‘sneak deals’ are invariably to the company’s long term detriment.

[16] Tim Brooke-Taylor is a British comedian, perhaps most notable for being one third of “The Goodies”.

[17] J Tully, “Reconsidering the BC Treaty Process” in Speaking Truth to Power: A Treaty Forum, British Columbia Treaty Commission, Canada, 2001, 3-19, p 11.

[18] At the Second National Pro Bono Conference in Sydney on 20-21 October 2003, Philip Lynch noted: “Research in the United States and Australia demonstrates that being treated with dignity and respect by lawyers and legal officers is more important than the legal outcome to clients’ perceptions of fairness and satisfaction.” See P Lynch, “Holistic Advocacy for the Homeless: Building Stronger Communities”, p 8. See also Tom Tyler, ‘The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings’ in David Wexler and Bruce Winnick (eds), Law in a Therapeutic Key (1995) 3-15; Rosemary Hunter, ‘Through the Looking Glass: Clients’ Perceptions and Experiences of Family Law Litigation’ (2002) 16 Australian Journal of Family Law 7; Michael King, ‘Applying Therapeutic Jurisprudence from the Bench’ (2003) 28 Alternative Law Journal 172, 173.

[19] It costs dearly to hold working group meetings: the expense of bringing the technical advisers in, food, refreshment and venue, interpreting services and travel assistance. The latest in an overwhelming list of (un-acted upon) assessments of the parlous state of NTRB funding is the (Cwth) Prosser Inquiry: Exploring: Australia's Future - impediments to increasing investment in minerals and petroleum exploration in Australia, tabled on 15 September 2003 in the House of Representatives. The full report is available at http://www.aph.gov.au/house/committee/isr/resexp/contents.htm. See paras 7.42-51.