Monday, 1 January 2018

Crosscurrents in Native Title: a book review

The notion of crosscurrents as a metaphor for the process of understanding the nature of native title in Australia is apposite.

For Indigenous people, the Native Title Act can be a portal into a long and tortuous process of articulating, clarifying, and resolving complex relationships between people and country, including ‘sea country’; attending meetings to develop claims, interacting with experts of various kinds, including anthropologists, historians, prehistorians, and not least lawyers; giving instructions to representative bodies such as Land Councils or native title representative bodies, and in particular the lawyers engaged by those bodies to advocate the claim; responding to complex tactical issues such as whether to agree to mediation, and if so, on what terms; and giving evidence in court about the individual, family and group relationships to country.

For the legal system, and in particular the Federal Court, the challenges of interpreting complex legislation, new and rapidly developing legal precedents (which change over the course of any one case), mediating or determining the correctness of conflicting and complex arguments between claimants, state and Federal governments, and third parties with potential interests in the claimed lands, all infused with cross cultural challenges and often incomplete or tendentious evidence on all sides.

When one stands back, and looks below the surface as those two sets of ‘currents’ meet in particular locations (which number in their scores if not their hundreds across the continent) it is not surprising that one observes a high degree of ‘turbulence’.

Katie Gaskin’s recent book: Crosscurrents: Law and society in a native title claim to land and sea (UWA Press 2017) examines the turbulent commingling of these two broad currents in one particular case, the Sampi native title claim which covered the northern portion of the Dampier Peninsula north of Broome in the Kimberley, and included a series of islands known as the Buccaneer Archipelago. The archipelago is itself subject to extremely high tides, and strong and dangerous currents and whirlpools. Thus the metaphor for the intersection of law and society in the Sampi native title claim is particularly apposite.

Glaskin’s book, within its chosen parameters, is a tour de force, a riveting narrative of the land claim process, focussing primarily on the interplay between legal process, requirements, and shifting precedent and the ethnographic evidence of the key Bardi and Jawi informants. Glaskin deftly lays out the historical context for the claim, and in particular for the area subject to most dispute, the land and sea which makes up the archipelago, including the role of missionaries, various individuals involved in trade and commerce based on trochus or pearls, government officers of various kinds and the Indigenous peoples whose ancestors resided in the claim area for some thirty thousand years. She goes on to recount the long and winding pathway from the initial research for the claim which began in 1994, its lodgement in 1995 with the Native Title Tribunal and subsequent referral to the Federal Court, three trial hearings through to its final determination by a decision of the Full Federal Court delivered in March 2010. Throughout, the focus is on the interplay between the ethnographic narrative argued by the claimants and the way in which the legal process (and the narrative articulated by the various parties involved including two governments and commercial fishing interests) interacted to shape both the issues which became salient and required resolution and determination in Australian law and social relations within the claimant communities.

Glaskin who was involved throughout and took a close interest in the process recounts these events very much as a neutral participant observer, avoiding taking sides, and leaving judgements at key points to the reader to assess and determine. Nevertheless, the narrative presented clearly demonstrates the ethical and moral strength of the claimants’ aspirations, and the arcane and rather mechanistic processes of the law and lawyers, constrained as they are by legislation and the long and largely successful culture of the common law.

In particular, while the law’s processes are clearly designed to symbolically reinforce the message that laws have primacy over men and women, these legal processes struggle to retain their credibility as their role in determining the ongoing existence or non-existence of native title is shown by the material Glaskin assembles to be simultaneously impacting Aboriginal people’s core ontological assumptions about themselves and their social communities.

While the final outcome of the native title claim is largely positive, the social costs involved in ‘recognising’ peoples existing and continuing native title rights are shown to have been enormous, albeit they are intangible and impossible to measure either within western ways of thinking or across cultures.

I stated that the book is a tour de force for a number of reasons.

First, Glaskin amasses, synthesises and expounds an extraordinary amount of complex and demanding material across the disciplines of prehistory, history, linguistics, anthropology, Bardi and Jawi ethnography, Australian law and to a lesser extent policy and politics.

Second, because Glaskin’s narrative has forced me to ask myself important new questions which I had been prepared to avoid or gloss over. In particular, is the judicial, policy and most importantly political consensus that native title claimants should be required to ‘prove’ connection to their country not just in the present but continuously from the date of the assertion of Crown sovereignty the equitable and morally justified benchmark I had previously accepted it as being?

Glaskin is at pains to make clear in her Preface what she is not attempting to cover. This is her prerogative, and it is not a criticism to raise issues which fall outside her self-imposed remit. However, her narrative raised two further issues for me which are I think important for the future of native title. The fact that her book manages to raise these sorts of issues for an engaged reader is further proof of its value.

The first relates to a matter which Glaskin appears to tip-toe around. It relates to a change of legal advisers and legal tactics within the Kimberley Land Council between the first and second trial in the Sampi litigation. The second trial before a new trial judge, Justice French arose because the initial trial judge fell ill and could not continue. During the interregnum, the High Court had handed down its decision Yorta Yorta, which resulted in a new focus on the continuity of Aboriginal ‘society’. The KLC reframed its argument around the relationship of the two groups who had brought the Sampi claim, the Bardi and Jawi, and it seems sailed close to the wind in terms of the anthropological evidence. The two anthropologists working on the claimants’ case wrote to the KLC to express their concerns, though Glaskin does not recount the elements of their concern or complaint.

The more general issue raised by this issue or event relates to the privileged and extremely complex role of Land Councils and Native Title Representative Bodies in representing native title groups in litigation and commercial negotiations. This privileged role is one that I support since facilitating unregulated access to this ‘market’ by commercial or private sector advisers is potentially fraught and involves increased risks of fraud, Transparency International recently issues a report in which they identified this risk (link here).  However, a concomitant of providing Land Councils and rep bodies with a privileged advisory role is that these bodies need to ensure they are fully accountable to both their constituents, the claimants they represent in particular cases, and the broader public given that they are funded with taxpayer dollars.

This issue is a sleeper as I am aware of a number of land councils and rep bodies with problematic governance and accountability practices and arrangements. Ultimately, it is governments and ministers who oversee the funding and regulation of these bodies, and it is they who should be held ultimately accountable for failure. Unfortunately, the real world experience of indigenous affairs policy is that the failure of poorly oversighted and regulated organisations is almost always seen by the public as an ‘Indigenous problem’. And the more fundamental risk is that the privileged position of rep bodies and land councils will eventually be undermined, a result which I consider to be sub-optimal.

In the Sampi case, it appears that there were no or limited reasons given for the change of approach by the Land Council, and it is not clear what levels of legal assurance were undertaken by the Land Council in adopting a revised approach. For example, did they seek Senior Counsel’s opinion, and did they take informed instructions from the claimants in relation to the new approach?

While Glaskin does not say this, it seems to this reader of her detailed narrative that the Land Council’s changed tactical approach played a significant role in the claimants’ initial loss in relation to the offshore islands in the archipelago. The consequences for Jawi interests in particular might have been much worse were it not for the Full Court later decision to overturn Justice French’s decision.

A second issue, again which is not highlighted by Glaskin, but merely hinted at relates to the decision by both the Western Australian and Commonwealth Governments to oppose the claim, in particular the claims to offshore lands and seas. This opposition was a prime reason for the failure of mediation, and thus for the length of the litigation, and the social costs inflicted on claimants I referred to earlier. Of course, subsequent cases (Yarmirr in 2001; Akiba in 2010) have found that native title can exist offshore, thus demonstrating retrospectively the wasted opportunities derived from the government actions. Glaskin notes that notwithstanding the sustained opposition to the claim by the Commonwealth, following its resolution, the Environment Department sponsored the declaration of an Indigenous Protected Area over the claim area which was justified explicitly on arguments the Commonwealth had used to oppose the claim. Refer pages 220-1 of the book. Ironies abound!

More generally, despite regular media statements celebrating the award of native title, both state and federal governments have over the past two decades routinely adopted legal arguments and positions which are designed to limit the extent and nature of determined native title. From time to time, these arguments are adopted for reasons which relate to legal policy issues outside the native title realm.

As a general rule, there is almost no transparency or public coverage of the arguments adopted by governments in native title litigation. While the information is theoretically public (as all court proceedings occur in public) there is no way a concerned member of the public can easily monitor what is going on. Similar to the argument for greater transparency from land councils and rep bodies, governments have a responsibility to be open about the positions they adopt, the reasons behind their positions, and to facilitate greater transparency. Such transparency would generally lead to better policy outcomes. It is unfortunate that the short-sighted focus of policymakers on politics over policy leads to these sorts of sub-optimal outcomes for Australia as a whole.  Indigenous advocacy groups might usefully seek to routinely monitor the legal positions of governments in ongoing litigation and publicise it as necessary.

To sum up, this is an extraordinarily stimulating book. It presents its key arguments via an engaging narrative of a single native title claim. It raises issues of substantive policy and societal importance. Crosscurrents will attract a readership primarily in anthropological and perhaps legal circles. I would encourage all those involved in public policy relating to Indigenous affairs, and indeed all those engaged citizens who merely wish to gain a better understanding of the Indigenous policymaking maze, to consider reading the book as it provides important insights into how mainstream society’s institutions interact with Indigenous Australians.

Addressing the ‘turbulence’ created by the commingling and intersecting ‘currents’ of Indigenous and mainstream ‘ways of being’ will be an ongoing challenge for Australian policymakers for decades to come. Katie Glaskin has offered us a rare insight into how this turbulence plays out within Indigenous citizens’ families, groups and the broader Indigenous community, and almost by the way, into why there are never simple solutions to complex problems.