The native title briar patch

 

O how full of briars is this working-day world

As You Like It, Act 1, Scene 3

 

A recent procedural decision by Justice Mortimer of the Federal Court shines a light on some of the more difficult issues which continue to challenge the ‘on the ground’ operations of the Native Title Act.

 

The case name is Sturt on behalf of the Jaru People v State of Western Australia [2021] FCA (link here). The decision deals with a number of recent determinations and claims in the Halls Creek region of Western Australia, and in particular, the failure of claimants to reach agreement on the establishment of relevant Prescribed Bodies Corporate (PBCs), and in particular, agreement on their membership. PBCs are the corporate entities established in accordance with the NTA to hold title to areas that are the subject of successfully determined native title claims.

 

For those interested in the legal technicalities, I refer you to the judgment which is admirably concise and succinct. The focus of this post is on the ancillary policy issues that support and underpin the implementation of the processes outlined in the Native Title Act. While this judgment relates to only a handful of claims, the policy issues that flow form these cases apply more generally across Australia, and affect scores if not hundreds of native title determinations and claims.

 

The fundamental issue that the Court is grappling with is the inability of the native title holders and claimants to agree amongst themselves in relation to the translation of traditional rights and responsibilities for country into modern legal forms stipulated by the NTA and its subsequent interpretation by the courts. Or to state it most bluntly, which individuals are members of the PBC, and thus entitled to participate in decisions relating to hte relevant country. These are fundamentally anthropological issues, shaped by internal community politics, the history of colonisation and the advent of modernity in all its forms. I do not suggest that there are easy answers, and indeed, as a non-legal reader, I was impressed by the Courts sensible, sensitive and yet robust approach to handling the reality of these disagreements. My own view is that over and above the exigencies of local politics, the reality and ongoing impacts of colonisation and the avalanche of modernisation in technology and communications, social mores, global perspectives, and rapid mainstream culture change inevitably creates serious challenges for today’s native title holders in working simultaneously within a system of traditional rights and responsibilities regulated by a mainstream statute and legal system.

 

Where I am most critical is in the failure of governments over decades to establish the robust and effective support systems that would facilitate building Indigenous capabilities to begin solving these inevitable challenges. These are systemic policy failures, and receive very little attention in public discourse and debate.

 

The present case points to a number — but not all — of these systemic issues, albeit without highlighting them; indeed, it is almost as if the Court sees these policy constraints as part of the furniture, to be accepted as a reality and worked around.

 

Issue one: The ILSC as a default PBC

The Court addressed the fact that in relation to two determined claims (Ngarrawanji #1 and Ngarrawanji #2 determined in May 2019 and July 2020 respectively) there was as yet no PBC nominated. The Judge noted:

16    There was no sign that a PBC was likely to be nominated because of the conflicts in the group. So the Court asked Judicial Registrar McGregor to contact the Indigenous Land and Sea Corporation (ILSC) to give the Court an affidavit about whether the ILSC could be nominated under the Native Title Act 1993 (Cth), as the PBC. Everyone accepts, including the ISLC, that the law gives the ILSC this job – to be a PBC where native title holders do not nominate one themselves. But in the 10 years since it has had this job, the ILSC has never been appointed as a PBC.

 

17    The Court held a case management hearing on 16 February 2021. Some of the members of the Ngarrawanji #1 and #2 applicant spoke at that hearing. The ILSC briefed a barrister to appear and he spoke on behalf of the ILSC. He told the Court the ILSC felt it needed more time to prepare to perform its role as a PBC, but it was willing to do so if the Court decided that was what should happen.

 

As a former CEO of the ILSC, I am incredulous that a Commonwealth statutory corporation briefed a barrister to request more time to prepare to undertake a role that has been within their remit for close on a decade. Of course, the ILSC is currently facing a crisis of governance as documented in this post (link here) and the Minister appears incapable of resolving the issues that have clearly bedevilled the organisation for at least ten months (link here). These issues may have played a role in the ILSC’s apparent reticence. So too may the more practical issues of finding qualified staff with the skills to engage on the ground, funding the required administrative processes including convening meetings, consulting geographically disparate members, and preparing agenda papers and implementing PBC decisions. Standing up a PBC from scratch is expensive!

 

Issue Two: funding for Native Title Representative Bodies.

The Court noted (without commenting one way or another) on the fact that many Aboriginal people in the region were not happy with the Kimberley Land Council (KLC), the Native Title Representative Body for the Kimberley region. Its functions in relation to native title are listed on its web site (link here). The KLC works in the liminal space between traditional conceptions of land ownership, rights and responsibilities on the one hand, and the mainstream system of native title on the other. It inevitably has to span and ultimately make decisions regarding competing contentions of claimants for title. It is thus not surprising that it is the subject of criticism by people on the ground.

 

The Court made a number of comments regarding the resources available to the KLC. In relation to the option of mediation over establishing a PBC, the Court stated:

24    The mediation may not happen until June 2021 because of limits on the funding available to the Kimberley Land Council to support native title holders participating in the mediation (and also using the services of Dr Redmond [an anthropologist]).

 

In its conclusion, the Court stated:

44    The Kimberley Land Council has attempted to assist in a number of ways, but it is clear that many people in the East Kimberley are frustrated with the Kimberley Land Council’s role in native title applications. Again, the Court accepts those frustrations exist, but reminds people it is not its job to take sides about that issue. The challenges the Kimberley Land Council faces with its native title funding are real obstacles, and the annual funding cycles from the Commonwealth are responsible at least in part for the delays and restrictions on funding. To change that requires political action, not legal action. [emphasis added]

 

Clearly, there is an issue here. It is one thing when an interest group makes an argument for increased funding from Government. It is quite another thing when the Courts are identifying funding shortfalls as contributing to poor policy outcomes.

 

It is my view that there is systemic underfunding of native title processes by the Commonwealth. NTRBs are asked to work in an incredibly complex cross-cultural environment, to standards that require them to meet both governance and accountability standards expected in mainstream corporations, while simultaneously meeting the cultural expectations of constituents whose daily lives are embedded in a very different cultural milieu, with different expectations of their leaders and representatives. Yet the Australian Government in both its funding arrangements nd its policy approaches appears to make little provision for these challenges, and indeed turns a blind eye to the on the ground realities. Not least of the flaws in Commonwealth policy is the split responsibility between funding of Indigenous groups (NIAA) and broader policy and funding of third parties (Attorney Generals Department).

 

The NIAA website includes the following text:

Native title

Native Title includes rights and interests that relate to land and waters held by Indigenous people under traditional laws and customs, recognised by the common law in accordance with the Native Title Act 1993 (Cth).

We fund a network of Native Title Representative Bodies and Service Providers to assist native title groups across Australia. Further information and contact details are available on the Native Title Representative Bodies and Service Providers page.

Native title corporations (known as ‘Prescribed Bodies Corporates’) hold, manage and protect native title on behalf of traditional owners. The Australian Government assists these bodies through grant funding (see Grants below).

The Attorney-General’s Department is responsible for legal and legal-policy advice on the sections of the Native Title Act 1993 (Cth) which are the responsibility of the Attorney-General and assistance to respondents involved in native title claims. More information is available at the Attorney-General's Department website.

 

In relation to PBC funding, the Grants section of the web page states:

PBC capacity building funding

The Department is now inviting eligible applicants to apply for PBC capacity building grant funding under the Indigenous Advancement Strategy.

 

PBCs are eligible for ‘capacity building’ grants, but not core funding. This in itself is a major structural hole in the system. It is way beyond time that the Commonwealth stepped up and provided core funding for the corporate entities that in effect have taken over from the Crown the management of at least fifty percent of the Australian land mass. See these two academic papers on the native title system for further analysis on these issues (link here and link here).

 

There is no information provided on the level of funding to the NTRBs or PBCs. It is beyond the scope of this post to identify each of the NTRBs funded by Government, and track their funding through the Government’s grants web page. The fact that the Government does not list this funding on its web page in an accessible form is deliberate opacity and prima facie an indicator that it does not wish to even defend its funding allocations and decisions in relation to financial support for the system established under the NTA. It is worth remembering that this system was a response to the High Court decision in Mabo that determined that Indigenous property rights survived the imposition of British sovereignty. In a very real sense, the current administration of the NTA continues and refreshes the stain of colonisation.

 

The reluctance and ill-preparedness of the ILSC — a Commonwealth statutory corporation — to take on the role of a default PBC in large measure because of the logistical cost and complexity of doing so contrasts with the expectation, yes, the expectation, by the Commonwealth that either the underfunded NTRB or the native title holders themselves can somehow pull themselves up by their bootstraps and stand up a fully functioning PBC able to manage the full suite of legally enforceable land management responsibilities and the associated decisions facing any Australian landowner. The irony is palpable; the more one thinks about it, the more disgraceful it is.

 

Conclusion

The recent Federal Court decision in Sturt v WA by Mortimer J in relation to the management and progression of native title determinations provides a window into the intricacies and systemic challenges facing native title holders across Australia generally. From a policy perspective, I have been impressed with the way the Federal Court has sought to progress these issues, step by step, case by case, decision by decision.

 

The executive arm of our governmental system has been far less impressive. Indeed, it has set up and operates an administrative and funding system that one would be forgiven for characterising as designed to fail.

 

One of the downsides with the wall to wall focus on important and essential big picture issues such as constitutional recognition, Closing the Gap, an Indigenous Voice, treaties, and a Makarrata is that the ongoing everyday challenges of Indigenous citizens on the ground obtain less attention and virtually zero policy traction. The traditional owners and custodians of the Ngarrawanji native title determinations are certainly victims of our incapacity as a nation to see, let alone address, the challenges they face.

 

The Commonwealth Government seems content to leave the native title system in the briars. It is fearful to step in. Close inspection is discouraged. Indigenous aspirations are thwarted and ignored. As a nation, we can and should do better.

 

Codesign in the Indigenous policy domain

 

Two of the most important and high profile current policy initiatives in the Indigenous policy domain are the development of an Indigenous Voice, which I recently blogged about (link here) and the development and ongoing implementation of the National Agreement on Closing the Gap (link here) and which I have also written about on this blog (link here and link here).

 

Both of these policy processes involve elements of codesign by both governments and Indigenous interests. Both are case studies in a recent Discussion Paper published by the Centre for Aboriginal Economic Policy Research at the ANU (link here). The paper canvasses the relevant international literature on codesign and collaborative governance; argues that codesign is more than mere consultation; and assesses the two case studies against a set of criteria drawn from the literature.

 

One of the key messages in the paper (consistent with its sub-title) is that while there are opportunities for both governments and Indigenous interests in pursuing codesign of policy development, each of these parties also face risks.

 

Another is that the design of the codesign process is crucial in ensuring the legitimacy and efficacy of the policy outcomes.

 

The Discussion Paper is recommended notwithstanding the author’s academic pretensions.