LIKE UNACKNOWLEDGED BASTARDS: THE NATIVE TITLE REPRESENTATIVE BODIE

LIKE UNACKNOWLEDGED
BASTARDS

The native title representative bodies

How shall the work be done?

Whatever the statutory settlement that followed Mabo was to look like, one thing was clear: there would be an awful lot of work to be done. Exactly who would do the job of representing Indigenous people wanting to pursue native title claims and how it would be paid for were two of the critical policy questions that had to be decided. There was an existing model on show, namely the large statutory Indigenous land councils of the Northern Territory, which since their inception in the 1970s had held monopoly powers and independent income streams through mining royalties. However, for the states, much of industry and even some Aboriginal groups who were defensive of local autonomy, the consolidation of control represented by the Northern Territory example was precisely what had to be avoided.¹ Those fearful of too much centralised control prevailed in the debates and, in accordance with current ideals of service provision, it was intended ‘that indigenous native title parties should have maximum flexibility in the representation of their interests’.² In contrast to the monopolistic Northern Territory model, there would be a system in which Aboriginal organisations applied to the Commonwealth for official native title representative body status and funding and multiple bodies could have NTRB status over a single geographical area, creating a competitive environment in which claimants could choose their preferred representative. The result was a mess from the very beginning.³

The NTA simply required an interested organisation to be able to satisfy the criterion of being ‘broadly representative’ of the Indigenous people of the relevant area before the Commonwealth Minister was able to bestow NTRB status, but it was not particularly clear how such a standard should be demonstrated.⁴ The functions of NTRBs were rather loosely defined in the statute and there was no ‘rigorous assessment undertaken of their roles, responsibilities and of the workloads that they might face and the sorts of funds they might require’.⁵ Among the entities that achieved rep body status were some pre-existing statutory land councils and Aboriginal legal services,⁶ various corporations of longstanding non-statutory operation⁷ and some new bodies that had been established since Mabo for the specific purpose of dealing with native title issues.⁸ The result was a deep unevenness in purpose and capacity among NTRBs, plus rife instability in some of the weaker organisations and across the scheme as a whole.⁹

While the particularities of their constitutions differed, all rep bodies were Aboriginal corporations with an elected governing committee that appointed a chief executive officer. Mostly the CEOs of NTRBs were Indigenous, but there was no legal compulsion to that effect and a number of non-Indigenous people held executive positions at rep bodies from time to time. Typically, the CEO was supported by a complement of professional and administrative employees, including corporate services, lawyers, anthropologists, community liaison officers and others. Work that could not be performed by staff would have to be contracted out, invariably at greater expense. The size of the staff group depended on the organisation in question, but ranged from between around ten to more than 70. NTRBs almost always operated offices within the jurisdiction they were representing, although it became common for regional bodies to also maintain capacity in their state capital. Rep body work was heavily dependent on long drives and air travel, servicing an often far-flung client base and constituency. NTRBs fulfilled a broad range of functions, including intra-Indigenous dispute resolution, preparing applications, providing representation and advice on mediation, litigation and negotiation of claim and future act matters, convening and supporting claimant meetings, participating in state and national processes (including some of the Indigenous leadership bodies described in Chapter 2) and responding to broader government requests for consultation on a wide array of policy matters.¹⁰ While the workload was formidable enough on the face of it, the actuality was even more intricate and convoluted given the cross-cultural and geographic dimensions of what was involved.

The rep bodies were a cornerstone of the native title system, yet the NTRB system always suffered from a kind of structural illegitimacy in which the nature and role of the organisations were overburdened, contested and beset with contradictions.¹¹ Long-standing native title lawyer James Fitzgerald has commented that all too often the NTRBs have been treated ‘like unacknowledged bastard children, paid minimal maintenance by a begrudging, estranged government that took no interest in their progress as long as they didn’t cause trouble’.¹² As children of uncertain lineage, rep bodies struggled with their place in the world: were they ‘Aboriginal organisations’ furiously contesting the legacy of colonisation at every step, or docile servants of government policy faithfully achieving key performance indicators? The gnawing contradictions of the NTRBs, twisted creatures from the outset, were never resolved.

NTRB s 1994–98

After less than one year of the NTA’s operation, the ATSIC Board initiated a review into the effectiveness of NTRBs, under the titular chairmanship of Guy Parker, an ATSIC Commissioner from the Pilbara in Western Australia who had portfolio responsibilities for native title and was assisted by a highly skilled and experienced review panel. The ‘Parker Report’ was handed down in August 1995 and recommended a significant re-envisioning of the NTRB system, involving both legislative change and administrative re-tooling. The Parker Report argued that the native title system would be best served by a patchwork of between 20 and 30 native title representative bodies, each exercising exclusive jurisdiction and with sole control over government funding for progressing native title claims within each region. NTRBs should be adequately resourced, but with increased reporting obligations and a greater interface with ATSIC as the principal funding agency. Specific recommendations were made for the recognition of particular rep bodies where none currently existed. The overall approach was to sort out the chaos in favour of cleaner lines of responsibility and greater overall systematisation.¹³ As two of the Parker review team related to a workshop in September 1995, their findings went against the prevailing tenets of governmental thinking which was ‘very much anti-monopoly, anti-trust, pro-competition’ and instead argued that what would be most effective was the establishment of ‘representative bodies with monopoly powers to represent native title parties in relation to native title issues’: a rejection of the neo-liberal orthodoxy of competition and transition, in effect, to something much closer to the Northern Territory land rights model of representation.¹⁴

The election of the Howard government in 1996 meant that the whole matter of NTRB functioning was again up for review. However, the fate of the rep bodies was not a first order issue in the tortuous debates that preceded the amendment of the NTA in 1998 and did not, for example, feature under any of the items contained in Prime Minister Howard’s ‘Ten Point Plan’ for reform released in May 1997. In the event, although the Amendments substantially altered the functioning of NTRBs, in important respects the content of the changes reflected many of the concerns of the Parker Report, as the federal government was quick to point out.¹⁵ Nevertheless, the scale of the transformation of the NTRB system as a consequence of the 1998 Amendments exceeded anything previously proposed. In sheer numerical terms, the rep bodies’ part of the NTA swelled from less than a page and a half of text to nearly 40 pages in length. The coming into effect of the relevant provisions was stepped, with the first wave commencing on 30 September 1998 and the second and more onerous set beginning 30 June 2000. The Amendments converted the NTRBs from loosely scrutinised organisations with broad discretionary functions to heavily regulated entities obliged to perform specific tasks in a pre-determined order of priority, the content of each of which was spelled out in detail. Statutory grant conditions were imposed, accompanied by new obligations to strategically plan, hold appropriate accounting records and submit annual reports to Parliament. Powers were created allowing government to inspect NTRB records and the executive office holders of each rep body were made subject to specific liabilities, including those arising under the Commonwealth Authorities and Companies Act 1997. The overall effect was to enforce the creation of a set of new bureaucratic standards among NTRBs.¹⁶

Accompanying the changes to how the rep bodies were regulated were broader alterations to the native title system, which had the effect of greatly increasing the workload. The initial ‘avalanche’ facing the NTRBs under the amended NTA was the imposition of a new registration test on existing native title applications, which required extensive work to ensure that claims remained registered so as not to lose the right to negotiate.¹⁷ A range of novel and more complicated future act processes were also introduced by the Amendments that had the general consequence of making it harder and more labour intensive for claimants to assert procedural rights, thereby creating further work obligations for their representatives. The removal of the basic carriage of native title claims from the National Native Title Tribunal to the Federal Court brought an associated stiffening of procedure and the imposition of judicial powers of direction, which also acted to enlarge the burden on NTRBs.¹⁸ Multiple processes with converging obligations amplified the overall pressure, a general condition that came into specific focus when Federal Court and National Native Title Tribunal limitation periods and return dates created competing obligations. One counsel described the cumulative effect as ‘Kafkaesque’.¹⁹

The 1998 Amendments also required all existing rep bodies to reapply for recognition. The Commonwealth Minister divided Australia into various ‘invitation areas’ and then asked all NTRBs that had previously enjoyed jurisdiction over part of the region in question to make application to be re-recognised now as having sole jurisdiction for the entire district.²⁰ The effect of the re-recognition process was to set up what was effectively a competitive tendering environment pitting existing NTRBs against one another for exclusive status. The jurisdictions of some smaller former NTRBs were completely subsumed within larger areas; others were merged, while in several instances as many as five NTRBs were eligible to seek re-recognition for the same region. Many organisations would be required to greatly increase their compass if they wished to survive, while others seemed bound to lose representative status. The process of re-recognition was quite intense, requiring both the lodgment of an extensive submission addressing comprehensive statutory criteria and the conducting of on-site investigations by multi-person review teams.²¹ Re-recognition was intended for final completion by 30 June 2000, but in some regions no NTRB was recognised until considerably later. When re-recognition was complete, the jurisdictional map had been significantly redrawn: eight NTRBs had disappeared or lost their status, another five new ones had come into being and all the original rep bodies which had survived engaged in varying levels of restructuring to secure their continued existence.²²

In general, between the passage of the 1998 Amendments and the stabilisation of the new NTRB system in 2000–01, the rep bodies (and often claimant groups themselves) were preoccupied with responding to the changes in the NTA at the expense of much substantive work to actually progress native title claims. It would be wrong, though, to characterise the Amendments as only having made things more difficult for NTRBs. As the Cape York Land Council noted optimistically in its Annual Report 1998–1999, as distracting as the implementation of the new provisions had been, the organisation had as a consequence obtained a ‘greater degree of consistency and direction in its operations’ as well as an improved commitment to general statutory compliance.²³ The 1998 Amendments created a framework that demanded greater professionalism and invited a higher standard of performance from the NTRBs. The kind of shoddiness that had accompanied a considerable proportion of rep body work in the past would in theory no longer be tolerated. One analyst described the Amendments as giving rep bodies the ‘chance to excel’.²⁴ However, the possibility of success always depended on the availability of realistic levels of funding; no operational improvements resulting from finer statutory prescription or the imposition of higher benchmarks unless adequate resources were provided for improvements to be made.²⁵

Spiralling down

In the first years of the NTA’s operation there was an under-appreciation of the costliness of the work that was to be performed. However, the findings of the Parker Report, accompanied by successful lobbying, saw levels of funding rise significantly. Money provided by ATSIC to the NTRBs increased from just under $10 million nationally in 1993–94 to over $37 million in 1996–97. It was generally recognised within ATSIC that the federal Coalition government elected in 1996 was not likely to be predisposed to increasing the level of resources provided to rep bodies. Accordingly, in 1998, in a bid to substantiate the case for enlarged financial support, ATSIC commissioned a report by an accountancy firm, Senatore Brennan Rashid, and the partner of a large law firm who had made a name for himself in native title by representing pastoral interests in native title claims, Mark Love of Corrs Chambers Westgarth.²⁶ What became known as the ‘Love Rashid Report’ was handed down in 1999 and the stark finding was that the NTRBs would simply ‘not be capable of professionally discharging their functions under the new regime within the current funding framework’ given an overall national level of under-funding in the vicinity of $30 million per annum.²⁷ However, despite the findings of the Love Rashid Report, only a minimal increase in Commonwealth support followed when, in 2001, ATSIC received an additional $17.4 million to be spent over four years, mainly on so-called ‘capacity building’ initiatives.²⁸ The theory behind ‘capacity building’ was that increased base capability would reduce the need for higher recurrent funding, though there was probably always a wishful exaggeration of the potential in what was possible.

Many sectors of society consider, no doubt with strong justification, that they are not adequately assisted by government. However, the NTRBs were in the position of having been given compulsory duties by the government that they were then denied the resources to perform. It was not the case that rep bodies were able to adjust their obligations to the level of resources that were available, because the NTA did not allow that discretion. Forced to undertake more work than funds allowed, the NTRBs’ functioning and development were predictably impaired. In contrast, both the Federal Court and the National Native Title Tribunal received significant funding increases in 2001. The methodical under-funding of native title representative bodies became the system’s perpetual problem, hampering and hovering over every discussion of how matters might be more quickly or efficiently progressed.²⁹

The Love Rashid Report had warned that without the necessary augmentation of NTRB resources, the organisations would become beleaguered and suffer a ‘spiral down into a cycle of immediacy’.³⁰ Certainly the evidence suggests great problems in the rep body sector following the turn of the new millennium. Applications to adjourn litigation on the basis of funding simply having run out became a not uncommon feature of Federal Court directions hearings,³¹ while studies pointed to dysfunctional turnover rates among professional staff.³² The Kimberley Land Council delivered an impressive string of victories in the Federal Court in the first years of the 2000s, but had to engage in redundancies, the sale of assets and the abandonment of much future act work to sustain the effort.³³ Staff salary levels and conditions were typically lower than the private, government and mainstream legal aid sectors and were accompanied by the stresses of incessant travel, remote locations and constant exposure to all the tensions of cross-cultural communication. Resource companies, government departments and private firms of lawyers and consultants were perpetually recruiting from the NTRB training ground, offering better wages and easier working conditions. Reflecting on the Parker Report which, with others, they had co-written, Altman and Smith wrote in 1995 that they had

tried to present two pictures in the vision statement. One was a very positive picture which proposed a situation of harmony and workability that would result from the existence of a nation-wide system of efficient and effective representative bodies. But we also tried to present the other side of the coin and say that, without these sorts of bodies, there would be a very negative situation where costs and chaos would result from an absence of representative bodies.³⁴

A decade later, the Commonwealth’s failure to finance the NTRBs at an appropriate level had ensured that the ‘very negative situation’ predicted by the Parker Report had come into being. The starving of resources from NTRBs was deliberate Commonwealth policy. The rep bodies were regarded as anathema by a Howard government that was deeply ideologically opposed to both collectivism and Indigenous particularism.³⁵