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McLean, Adam --- "Frameworks to Settling Native Title" [2009] IndigLawB 24; (2009) 7(12) Indigenous Law Bulletin 27

Frameworks to Settling Native Title

By Adam McLean.

It is well recognised across Australia that any beneficial purpose of the Native Title Act 1993 (Cth) (‘NTA’) has been frustrated by excessive delays and cost. The National Native Title Tribunal (‘NNTT’) estimates that, at the current rate of resolution, it will take over 30 years to resolve current and anticipated native title claims.[1] Of course some states and territories are far more advanced in their settlement of native title applications than others.[2] But on the whole, the time required to finalise matters is increasing; on average, determination of an application by consent takes nearly six years.[3] Further, the costs expended in court procedures and mediated settlements, whether or not those settlements include a consent determination of native title, sometimes exceed the value of land and other benefits secured for the traditional owners. Moreover, the official costs do not record personal costs to the communities involved; the strain of pursuing uncertain outcomes, which can drag on for years, often creates further distrust within both Aboriginal and non-Aboriginal groups. This is a legacy of native title law that will take some time to repair.

Recently, Chief Justice Robert French of the High Court, a former President of the NNTT, proposed a number of measures including further amendments to the NTA to assist in the litigation and settlement of native title applications. [4] But his Honour noted that the delays and costs can only be resolved to a limited extent by process improvements. This article will argue that the current provisions of the NTA are adequate to enable parties to native title applications to reach agreements on all aspects of native title, including consent determinations. However, it is the lack of political will, coupled with bureaucratic inertia, that is the chief cause of the delays and high costs.

The Advantages of Settlement
The benefits of settlement over litigation are obvious given the expense and time involved in resolving legal disputes. But there are additional benefits of settlement in a native title context that are not always present in other types of litigation.

If an applicant to a claim of native title is successful in litigation, the court determination must specify the nature and extent of other interests and how they relate to the native title rights and interests.[5] This means that the Commonwealth, State, Territory or other party must sit down and negotiate with the - now - native title holders as to what the determination means for their particular area of land and water. Often the other parties will have to work with the Indigenous title holders in future dealings, particularly where the land is intended for a major project, such as mining or a national park. Of course, a favourable court determination increases the native title holders’ bargaining power in those subsequent negotiations. However, negotiations are much more difficult when the determination emerges out of hotly contested litigation; it may take years to reconcile the parties so that they may work together effectively.

Further, like most civil litigation, it has been left to States and Territories to determine, on a case-by-case basis, what claims they will attempt to settle and on what terms. Unfortunately, this means that native title representative bodies, applicants and their legal advisors must spend extra time and costs gathering comprehensive anthropological and historical material necessary to properly prepare an application for litigation. It is uncertain what (or how much) material is required at any given time; this will vary according to region and the state of the law at the time. The NNTT cites the preparation and assessment of material to establish a connection to land as the primary source of delays in resolving claims.[6]

The NSW Government, for example, has a long-held policy requiring ‘credible evidence’ before entering into settlement negotiations. Unfortunately, it is unclear what ‘credible evidence’ is at any given time, so applicants must prepare all material as advised by their specialised legal representatives. However, this may not correspond with what material the Government’s legal advisors consider to be ‘credible’, often leading to an intractable dispute between the parties. This tension can be further compounded where matters are set for litigation: while applicants want to demonstrate ‘credible evidence’, they do not want to show their entire hand at the negotiation stage.

Moreover, there are no limitations as to what may be included in a negotiated outcome. While this can sometimes afford greater flexibility according to the circumstances of the parties, any such benefit is often outweighed by the disadvantage caused by their divergent expectations. Different ideas about appropriate or feasible outcomes mean that negotiations may take many years, while parties seek senior legal advice and engage in legal and political posturing; no group is willing to settle in case there is a possibility of a better outcome.

Clearly, if negotiated settlements were able to proceed according to clearly defined parameters, with clearly defined outcomes, the savings in time and cost would be enormous.

Framework to Settlement

A framework agreement for settlement of native title applications, negotiated between all major players and stakeholder groups – Commonwealth, states, territories, representative bodies, minerals councils – would save time and resources that might otherwise be spent preparing for litigation, and assist parties to work towards achieving real outcomes. But to achieve this, the agreements should not be merely vague pronouncements that the parties will work to reach agreements; they must provide clear, detailed and precise formulas to reach outcomes, clearly spelling out:

• The material required (historical/genealogical/anthropological reports) to resolve a consent determination, and the terms or types of determination available;

• The material required to settle applications where a consent determination is not an outcome but where parties agree to other terms;

• The precise terms of settlement for co-management arrangements in respect of national parks and forests;[7]

• Which specific acts are authorised as ‘future acts’, together with a simplified future act regime;

• Whether the benefits provided for in the framework represent all possible compensation outcomes available to applicants/

For exploration and mining, framework agreements should also establish the basis for authorising future acts associated with mining. This should also include a clear formula for deciding royalty payments for various settlement scenarios according to different minerals. In this way, parties – particularly applicants – would be able to see the basis of an outcome before entering into negotiations. Where terms are unsuitable or unacceptable, litigation would remain an option.

Further, once parties agree to negotiate under a framework agreement, the outcomes would be essentially administrative or bureaucratic. Outcomes could be negotiated by applicants directly or by relatively junior advisors for all parties without further recourse to expensive legal teams, anthropologists and historians. This has been the experience of the land rights regimes in NSW and the Northern Territory,[8] where large land grants worth millions of dollars barely rate a mention in the local news, so routine have they become.[9] Similarly, complex national park joint management agreements have been reached in relatively short periods of time, at greatly reduced cost, under the National Park and Wildlife Act 1974 (NSW). This is because the precise terms of the agreement are clearly set out in the legislation; all parties know what they are in for before they begin.

The concept of settlement framework agreements is not new. The Victorian Government entered into a settlement protocol for the negotiations of a native title framework agreement for Victoria in 2000 and announced in June this year that it has settled a negotiation framework for native title applications in that State.[10] However, this groundbreaking framework does not incorporate Commonwealth participation. Even though most of the responsibility for native title rests with states and territories, to be a workable and effective mechanism for progress, Commonwealth Government must also be included as a party in framework agreements. The Commonwealth should promote and broker settlement agreements across Australia; most settlements entail compensation issues that require some level of Commonwealth involvement. Settlements that include a consent determination, for example, necessarily involve questions about compensation for past, intermediate and future acts that extinguish or impair native title. Further, framework settlement agreements must be accompanied by appropriate commonwealth and state legislation. This is because many outcomes, while not precluded in the NTA or Indigenous Land Use Agreements, are not explicitly provided for in appropriate state-based legislation.

More than Amendments to the Native Title Act

Chief Justice French suggested a number of amendments to the NTA, including a presumption in favour of native title under certain conditions, and provisions requiring historical extinguishment to be disregarded. These are not necessary pre-conditions to the settlement of native title issues but, without the political will to settle applications, such changes would be an important step towards increasing the bargaining power of applicants in native title cases. Hopefully such amendments would assist parties negotiate more readily towards settlement. A properly constructed framework agreement could achieve practical benefits for Indigenous applicants in a more direct way; it could redress much of the existing confusion and procedural inequality attaching to the current system.

Who’s Who?
Who is rightfully included in the claimant group, overlapping claims and other internal disputes are a major source of delays in settlement. States and territories often take the position that such issues are matters for the Indigenous groups to resolve between themselves but then refuse to negotiate until these disputes have been determined. This approach does not assist in the settlement of disputes; it is the nature and process of native title applications that creates – or at least exacerbates – these disputes within or between Indigenous communities.

Framework agreements negotiated with representative bodies should provide a clear mechanism for settling these internal disputes, providing a clear and workable definition for membership of the claimant group. Anthropologists and lawyers often disagree as to precise definitions, whether the group is defined as part of a cultural block or as an estate group, whether different groups hold differing rights and interests, and whether individuals can hold rights in more than one application. Without a framework agreement on this matter, individuals can never be completely clear whether they or their family members form part of the applicant group. An analogous example can be found in Part 4A of the National Park and Wildlife Act 1974 (NSW), which provides for joint management of national parks in that state. The legislation has a clear process for defining who is an ‘Aboriginal Owner’[11] and is thereby entitled to participate in, and benefit from, the process. Although separate from native title, there are practical lessons to be learned from this legislation: disputes arising out of this provision are relatively minor, even over areas subject to long-running native title disputes.

Reverse Onus
More broadly than the amendments advocated by Chief Justice French, framework agreements ought to expressly recognise that native title exists throughout the land and waters of the relevant state or territory, except where native title has been clearly extinguished. In this way, the onus would be on the state or territory to confirm extinguishment. This concept is not new to native title law; elements of it can be seen in the future act provisions. That is, native title applicants enter into negotiations for the authorisation of future acts without first having to establish that native title exists. Essentially, such provisions would put the parties in the negotiating position as if a positive native title determination had already been made. This is the proper and appropriate basis for negotiations to take place.

A framework agreement should complement such an amendment by spelling out the different roles of the state, territories, representative bodies and applicants in determining the claimant group, specifying the specific requirements with respect to all land and waters. Further, either by legislative amendment or as a specific inclusion in a framework agreement, the state ought to accept expressly that the basic connection material (and assumptions arising therefrom) will be used in determining a claim for native title. So, for example, once it is established that the people within the claim group are directly related to the people who occupied the the land at first contact, a presumption would arise confirming the existence of the necessary connection. This would relieve applicants of the great cost burden involved in preparing such material.

Consent Determinations
Chief Justice French advocated for changes to native title legislation to enable the Court to act upon agreed statements of fact for consent determinations. This would also be important to achieving successful settlement outcomes under framework agreements. The terms should also be included in the provisions of the framework agreement itself. Further, framework agreements should clearly spell out the flow-on effects of consent determinations; these should be carefully considered as they will not always present the best outcome for the applicants. In the recent Arakwal series of land use agreements,[12] for instance, each parcel of land was carefully considered with respect to possible future uses. The consent determinations in that matter where that no native title existed over the land that the traditional owners wished to use for commercial development, housing and camping grounds. This was on the basis that native title had been surrendered to the state by the applicants. This determination enabled the applicants to receive unencumbered freehold estate in the land and waters concerned.

Compensation Considerations
Compensation considerations contribute to delays in the settlement of native title applications. This is because state or territory governments often seek as a term of settlement that the settled benefits represent all the compensation available to the applicants in respect of their traditional area, both now and into the future.[13] However, unless the state can provide all tenure documentation, sometimes back to original crown grant, the applicants are faced with uncertainty as to the nature and extent of future compensation that they are thereby foregoing. A framework agreement might resolve this indeterminacy by expressly providing that future compensation applications will remain available to applicants but subject to a set-off provision in respect of any benefits included under current arrangements. This would enable all parties proceed to settlement without being delayed and derailed by compensation considerations.[14]


More promises by states and territories, or even further amendments to the NTA, will not result in the wholesale resolution of outstanding native title applications. What is needed is a concrete commitment from all relevant parties to reach agreement by negotiation. Such commitments can be provided by states, territories and the Commonwealth by entering into a series of comprehensive framework agreements with peak stakeholder groups. Properly framed and detailed agreements will help to overcome some of the most frustrating elements of the native title process, helping parties to reach agreement according to realistic expectations. They would provide instrumental pathways towards consensus in a way that has not yet been achieved in any Australian jurisdiction.

Adam McLean is a barrister who has represented traditional owners over many years and negotiated numerous agreements on behalf of traditional owners including the first Indigenous Land Use Agreement in Australia which also secured part-ownership of a mining company (Tumut Brungle Area Agreement). He is currently advising the Bundjalung People of Byron Bay (Arakwal) in their series of Indigenous Land Use Agreements which have secured co-management of national parks and freehold transfers. He has also represented traditional owners in many joint management agreements under Part 4A of the NSW National Park and Wildlife Act.

[1] National Native Title Tribunal, National Report: Native Title June (2008), 1.
[2] Ibid.
[3] Ibid, 2.
[4] See Chief Justice Robert French, ‘Lifting the Burden of Native Title: Some Modest Proposals for Improvement’ (speech delivered at Federal Court Users Group Adelaide, 9 July 2008),3.
[5] Native Title Act 1993 (Cth), s 225.
[6] National Native Title Tribunal, above n 1, 3.
[7] See for example Part 4A, National Park and Wildlife Act 1974 (NSW).
[8] See NSW Aboriginal Land Council, Annual Report 2007–2008 and Northern Land Council Annual Report 2007-2008.
[9] In NSW this is also partly a reason why native title applications are slow in resolution as the State Government takes the view that land grants under the Aboriginal Land Rights Act preclude the need for vast settlements of native title matters.
[10] See Office of the Attorney General, ‘Victoria Leads the Nation in Native Title Settlement’ (Press Release, Thursday 4 June 2009).
[11] Aboriginal Owner is the term used in the National Park and Wildlife Act 1974 for traditional owners who comply with the criteria used in the legislation.
[12] Bundjalung ILUA NIA2001/001 and NI2006/004.
[13] This includes compensation for past act, intermediate period act and future act extinguishment or impairment.
[14] This was successfully negotiated in the Bundjalung People of Byron Bay ILUA (no 2) NI2006/004.

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