Creamer, Joshua --- "We will mediate the Gap Closed: 2009 Native Title Amendments" [2010] IndigLawB 5; (2010) 7(16) Indigenous Law Bulletin 21

• Mediation and the Federal Court
• Native Title and Cultural Conservation
• Moving Forward ... while Looking Backward
• Conclusion

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We will mediate the Gap Closed: 2009 Native Title Amendments

Joshua Creamer

On 17 October 2008, the Commonwealth Attorney-General announced institutional reform to improve the operation of the native title system.^[1] This announcement came to fruition in September 2009, with the enactment of the Native Title Amendment Act 2009 (Cth) (‘the Amendment Act’). As well as a number of minor modifications, the Amendment Act introduces a greater reliance on mediation and shifts jurisdiction over native title claims to the Federal Court.

The amendments fall under the auspices of the Closing the Gap policy, with the Rudd Government asserting that native title can play ‘a real role in redressing the disparity between Indigenous and non-Indigenous Australians’.^[2] The Government claims this new approach will encourage more negotiated settlements, which will lead to better outcomes for participants in the system.^[3]

This article briefly discusses the amendments and their impact on the native title system. The amendments are considered against the backdrop of the interest of Indigenous parties in the native title process contrasted with the expectations of the Federal Government.

Mediation and the Federal Court

The cost of processing native title claims and the length of time required to reach a resolution are a serious concern to the Federal Government, as they are to all parties involved in the process. In March last year, the Attorney-General lamented that, in the 15 years since the introduction of the Native Title Act

quite literally millions of dollars have been wasted on unproductive and unnecessary litigation. This is totally unacceptable given the desperate circumstances of those we are trying to benefit.^[4]

In an attempt to create a more economically efficient system, the Commonwealth has adopted a path in favour of negotiated settlements. Under the Amendment Act, the Federal Court must now refer each application to an appropriate body for mediation,^[5]and may refer proceedings either in whole or in part.^[6]

Mediation conferences will be carried out by a person, the National Native Title Tribunal or an individual nominated by the mediator.^[7] Where it would assist in determining native title proceedings, the mediator may appear before the Court.^[8] The mediator will have an array of powers, including the power to direct or exclude parties from mediation.^[9] After mediation concludes the mediator must provide a written report to the Court setting out the results of discussions.^[10]

In conjunction with these changes, the Federal Court now has primary responsibility for the management of each native title application. The Government maintains that

The Court has significant alternative dispute resolution experience and has achieved strong mediated results in the past. Having one body control the direction of each case means that the opportunities for resolution can be more readily identified and the efforts of the parties best focused.^[11]

The amendments are thus based on the assumption that the success rate of mediation will be high. But even if these procedural changes do achieve their stated aims – improving the operation, speed and efficacy of existing processes – will they lead to more equitable outcomes? The question remains: can institutional change, without more, contribute to closing the gap?

Native Title and Cultural Conservation

Native title is a claim by Indigenous people, to certain rights and interests over their traditional lands. Those rights and interests are defined in s223 of the Native Title Act 1993 (Cth)(‘the Act’). In summary, s223 defines rights and interests as

the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, possessed under the traditional laws and customs observed, by the Aboriginal peoples or Torres Strait Islanders. Those laws and customs have a connection with the land or waters and are recognised by the common law of Australia.

Indigenous parties must prove that the rights and interests they are claiming are those which were practiced by their ancestors at the time of colonisation. Traditional owners must also prove that those rights and interests continue to be practiced today, and that they maintained continuous connection to the claim area. Any rights and interest that were not practiced at the time of white settlement will not be recognised by the courts as attaching to native title.

This restrictive approach to land plays a part in limiting the evolution of Indigenous culture, constraining it to a period long past. Like all cultures, in order to survive it must adapt over time in order to cope with change. If adaptation does not occur in response to change then a culture will be frozen in time and can cease to exist.

This retrograde approach precludes the use of native title as a means to achieve not just land justice, but also to transgress the economic and social divide that exists between Indigenous and non-Indigenous Australians. In native title, the gap is not the disparity in levels of incarceration, health standards or other social and economic parameters, frequently used to identify the disadvantage between Indigenous and non-Indigenous Australians. Rather, the gap is the difference in the ideological thinking of claimant groups compared to many non-Indigenous stakeholders. The gap is also the difference between what the native title process is expected to achieve and what it can actually deliver.

Moving Forward ... while Looking Backward

The move towards mediation may present a forum for opposing parties to understand one another’s primary objectives. This is a step forward in an arena where fundamental aims can all too easily be shrouded or distorted under the cumbersome demands of a highly technical process. Perhaps it will pave the way towards a more conciliatory, problem-solving approach than that seen in traditional adversarial processes. However even if this occurs, the amendments still fall far short of addressing the inherent failings of native title.

It is difficult to see how these superficial amendments, without commensurate attention to entrenched legal assumptions, can improve socio-economic outcomes for Aboriginal and Torres Strait Islander people. For traditional owners, native title provides an opportunity to achieve land justice, official state recognition of connections to land and legal protection of rights arising from that complex link. Yet within the current system, native title claims are predicated on time-honoured practices and unbroken connection to that land. There is no basis in law to demonstrate what that relationship means in a modern context.

This stands in stark contrast to statements made by Government as to the aims and purpose of the Amendment Act. The Rudd Government maintains that native title is a vehicle to assist in overcoming widespread socio-economic disadvantage, providing valuable economic opportunities and playing a critical role in efforts towards parity between Indigenous and non-Indigenous Australians.

But this approach is flawed and skims over key underlying philosophical tensions. Government rhetoric about pathways forward and the importance of future opportunities is at odds with the basic legal construction of native title, which is essentially backward looking. Moreover, it fails to recognise the normative difficulty of locating the solution to contemporary disadvantage in a time before such disadvantage arose. Native title, purportedly a mechanism to redress modern day disadvantage, is calculated by reference to legal and cultural practices as they were two centuries ago, before the impact of colonisation, before the imposed legal order caused the very gap that exists today. In this light, the aims of the current amendments – concerned simply with improved institutional operation – seem wholly inadequate to achieving better outcomes for future generations.

By failing to acknowledge or address this essential conflict in perspective, the Federal Government falls far short of meeting its own expectation of what the native title system should be achieving. With the 2009 amendments, we see a clear intention by the Federal Government to create a more efficient and cost effective system. But despite its willingness to tackle these valid practical concerns, the Federal Government has failed to create any substantial change.

Conclusion

There is little doubt that the native title system has failed to deliver on expectations from all quarters. The recent amendments from the Rudd Government merely tinker with an overly technical and slow-moving system. The amendments may be effective in improving efficiency and decreasing the cost of a native title action. It may be that a centralised and conciliatory approach will see the concerns of traditional owners placed at the forefront of the negotiation process. But even here, success depends on the skill of individual mediators, the vagaries of the negotiation process, and the willingness of long time adversaries to reach a compromise.

If the Government wants to create real change through the native title system it ought to consider the question: how does a system concerned with the rights and interests practised since time immemorial fit with the contemporary expectation that native title will lead to greater equality between Indigenous and non-Indigenous Australians? The Federal Government needs to decide whether the native title system is concerned with traditional rights and interest of Indigenous people, or whether it is a vehicle to achieve significant socio-economic change. If it is the latter, then the current round of amendments falls far short of what is required.

Joshua Creamer is a young Wannyi and Kalkadoon lawyer. Having grown up in Mount Isa, he is currently living and working on the Gold Coast. His experience in native title is drawn from his time spent employed in a Native Title Representative Body.

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^[1] Explanatory Memorandum, Native Title Amendment Bill 2009 (Cth), see <http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4093_ems_a67a17ce-5f5d-4fe4-81fb-6a03006ba58a/upload_pdf/327405.pdf;fileType%3Dapplication%2Fpdf> at 24 February 2010.

^[2] Commonwealth Attorney-General, Proposed Minor Native Title Amendments, Discussion Paper (2008) 3, available at <http://www.ag.gov.au/www/agd/rwpattach.nsf/PublicbySrc/Native+Title+Amendment+Bill+2009+-+Discussion+paper.pdf/$file/Native+Title+Amendment+Bill+2009+-+Discussion+paper.pdf> , at 24 February 2010.

^[3] See Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2009, 3249 (Robert McClelland, Attorney-General) available at <http://www.aph.gov.au/hansard/reps/dailys/dr190309.pdf> at 24 February 2010.

^[4] Ibid.

^[5] S 86B(1)(1).

^[6] S 86B(5).

^[7] S 94D(2).

^[8] S 86BA (1).

^[9] S 94E.

^[10] S 94N(1).

^[11] See <http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform> at 24 February 2010.