POETS AND SLAVES: THE NATIONAL NATIVE TITLE

POETS AND SLAVES

The National Native Title Tribunal

Confusing beginnings

If the history of the National Native Title Tribunal has a single motif, it is captured in the very incongruity of the organisation’s title. The discursive connotations of the name suggest a powerful decision-making body, but in actuality the Tribunal had few such powers. The first full-time President of the NNTT, Justice Robert French, often reflected that the designation ‘Tribunal’ was ill-suited because the NNTT was never ‘empowered to hear cases and make decisions about the existence or non-existence of native title’.¹ From the outset, it was the Tribunal that couldn’t. Rather, the principal functions of the Tribunal were to mediate native title claims and to assist in resolving future act matters through a mixture of alternative dispute resolution and arbitration.² In the first year of his presidency, French, while characteristically attempting to ‘make it so’, suggested that the ‘Tribunal might more accurately and appropriately have been called “The National Native Title Dispute Resolution Service”’, a suggestion that was never taken up.³ The Tribunal’s title was the organisation’s foundational irony.

French was an astute choice as the first full-time President of the Tribunal; a Western Australian Federal Court judge with a formidable reputation and a background that included both participating in the establishment of the WA Aboriginal Legal Service and as a parliamentary candidate for the Liberal Party, he would be a difficult target for opponents of native title.⁴ The second President, Graeme Neate, appointed from 1999, was not a judge but had impeccable technical credentials, having been a part-time member of the NNTT for some years and serving otherwise as the chairperson of the Aboriginal and Torres Strait Islander Lands Tribunal in Queensland. Though no doubt accentuated by the changes in native title law and practice, the difference in presidential styles was marked.⁵ Both men were willing participants in public debate and evinced Trojan work ethics, but while French strove to catalyse, Neate, lacking the stature, profile and statutory powers of his predecessor, was more inclined to earnestly catalogue.⁶

Apart from the President, the NTA also allowed for deputy presidential and ordinary members of the Tribunal, to be appointed on either a part- or full-time basis to preside over mediation and arbitration. Despite the ostensible hierarchy, individual members possessed very considerable autonomy in conducting their work.⁷ The result was that, for all of the Tribunal’s eventual emphasis on process, the effectiveness of the NNTT as a mediator was often arbitrarily contingent on the ability, training and inclination of the particular member dealing with the matter in question.⁸ Relatively flexible statutory criteria meant that members have been appointed with a wide array of qualifications and experience, but lawyers have dominated.⁹ Notable early appointees included Fred Chaney, Hal Wootten, Ian Viner and Paul Seaman, all of whom were significant public figures with established reputations in Indigenous affairs.¹⁰ Very few members have been Indigenous themselves.¹¹ Curiously, as the Tribunal itself would eventually point out, there was no requirement that members have any expertise in mediation.¹²

The Principal Registry of the NNTT was located in Perth, far from the usual centres of national power, in consideration of the importance of Western Australia to the contest over native title.¹³ The Tribunal’s first years of operation were characterised by rapid staff and budgetary growth, amid operational confusion engendered by the innate opacity of parts of the NTA accompanied by jarring clarifications from the courts.¹⁴ Each new judicial interpretation of the NTA required (often substantial) change in the way the Tribunal operated, contributing to a climate of some administrative instability.¹⁵ Most significant was confusion over what powers the Tribunal possessed in relation to the regulation of claims at the front end of the process. The NNTT initially adopted a restrictive interpretation which gave some order and restraint to the spread of claims, but the approach was thoroughly rejected by the High Court as a misapplication of the relevant law.¹⁶

The Tribunal and the future act system: emancipating the mining industry

Conscious of the possible tensions between the two roles of dealing with future acts and mediating native title claims, early in 1995 the Tribunal divided its principal operations between ‘claims’ and ‘future acts’ units which ran quite distinct operations.¹⁷ The most obvious manifestation of the partition was that neither of the presidents played much part in the administration of the Tribunal’s future act role, which was instead led for most of the organisation’s history by former state Labor Attorney General from South Australia, Deputy President Chris Sumner, who was left to get on with it. Although the NTA created the basic parameters, the Tribunal played a critical role in deciding precisely how the rights of the parties were to be weighted within the future act system, through both formal arbitral rulings as well as bureaucratic decisions about how procedures should operate. The Tribunal was not required to exercise its responsibilities in relation to the future act system until 1995, when the Western Australian State Government suddenly began issuing large numbers of notices of intention to create mining rights.¹⁸ In what became one of the first key litigation battlegrounds under the NTA, the State of Western Australia insisted that every exploration tenement attracted the ‘expedited procedure’, a statutory euphemism meaning that native title claimants would get no right to negotiate. Various native title groups were quick to challenge the designation and the Tribunal was required to arbitrate. In the first hearings, former Western Australia Supreme Court judge Paul Seaman presided and took an approach (later wholly endorsed by Sumner) that resulted in the objections being dismissed. Other objections followed in which it became clear that not all members accepted the Seaman approach, leading to indecision that was resolved through appeals to the Federal Court that eventually went the way of the claimants.¹⁹

Fracas over the expedited procedure was followed by the first referrals of full future act matters to the Tribunal. In these cases, the NNTT was required to decide whether certain mining leases could be granted or not and, if so, under what conditions. One of the principal technical issues to be resolved was how the Tribunal should address the discrepancy between what, at law, the mining leases permitted the company in question to do and the activities that, as a matter of fact, would actually be undertaken.²⁰ Complicatedly, the structure of the Western Australian mining legislation meant that it was common for a lease to be granted, but for no actual commercial mining to ever be undertaken.²¹ Placed in the invidious position of knowing what was legally permissible but not necessarily what would really happen, in each instance the NNTT allowed the tenements to be granted but attempted to place some conditions on any mining that actually might take place. On appeal, the Federal Court rejected the Tribunal’s approach as legally impermissible.²²

After the 1998 Amendments the Tribunal was faced with a recalibrated future act system, in which claimants’ access to procedural rights had been considerably reduced.²³ The amended Act made it considerably harder, for instance, to sustain an objection to the application of the expedited procedure, largely in keeping with the original interpretation taken by Seaman and Sumner.²⁴ Success in objecting to the expedited procedure became much harder.²⁵ It was also becoming clear that winning a broader future act matter before the NNTT—actually gaining a ruling that mining should not go ahead because of the importance of the interests of a claimant group in a particular area—was well nigh impossible. In the history of its existence, when arbitrating on the main future act processes, the Tribunal has never once ruled that a resource company should not get its mining leases. The inevitable effect has been to reduce the value of the right to negotiate to registered claimants, while resource firms have been able to engage in bargaining, increasingly secure in the knowledge that it is unlikely that if a matter goes to inquiry, the consequences will be anything more onerous than the additional delay occasioned by the hearing.²⁶

In addition to the formal exercise of arbitral power under the Act, the NNTT has also actively influenced the balance within the future act system through decisions on administrative policy. Importantly, the Tribunal moved to a fully fledged outcome and output accounting structure in accordance with accrual budgeting arrangements after the Amendments were passed in 1998.²⁷ Under the new system, the Tribunal was required to come up with quantitative ways of measuring success through the achievements of outputs and sub-outputs, said to flow from stated corporate goals. In designing a numerical basis for gauging how well it was administering the future act system, the NNTT made a clear value judgment. While ‘corporate goals’ still remained neutral or indeed designed to address the interests of Indigenous people, the achievement of these objectives was determined by reference to criteria that seemed to favour the resources industry. In measuring productivity, the Tribunal relied on statistics dealing with the number and speed of mineral tenements that were passing through the process and being granted. Perversely, for example, the Tribunal represented that the number of times a native title group missed out on the right to negotiate because the expedited procedure was applied acted as a measure of ‘the cultural and customary concerns of Aboriginal and Torres Strait Islander people’ being successfully addressed.²⁸

The Tribunal’s effectiveness in managing the future act system came to be defined by how quickly and efficiently it was servicing the needs of industry. In various submissions to parliamentary inquiries, the Tribunal used the available statistics to show that the NTA was mining-friendly: tenements were described in positive terms as being ‘cleared for grant’, and in one particularly striking effort the NNTT boasted that ‘70,000 square kilometres of land [had] been approved for mining exploration’ in the previous year.²⁹ The deemphasising and sometimes diminution of claimant interests cannot simply be explained by reference to an adjustment in the balance of the right-to-negotiate system caused by the 1998 Amendments because the Tribunal went beyond what was required by the Federal Parliament.³⁰ In part the NNTT’s course in dealing with the future act system might be read as reflective of the more general shift to the right in Australian political culture in the Howard years, but a fuller explanation lies in the underlying structure of the national economy. The Tribunal often accurately noted the immense value of the resources sector to the nation’s ongoing prosperity, making it perhaps unsurprising that the organisation’s future act unit became increasingly inclined to do its bit for the country.³¹ In its administration of the future act system, the NNTT came to reflect the central priorities of the Australian economy.³²

The Tribunal and the claims system: What was the dispute about?

One of the central statutory puzzles that the Tribunal had to solve was what, exactly, the resolution of native title claims was really all about.³³ The NTA in its original form provided only a very general basis for the Tribunal’s central function of mediating native title claims, referring sparingly to a ‘conference of the parties . . . to help in resolving the matter’.³⁴ The early years of legal flux over the content and extent of native title meant that what was actually being claimed was a subject of considerable doubt. Yet even more fundamentally, given that at no stage did the NTA ever allow traditional owners to claim rights owned by others, what was actually in dispute? A native title claim was not a contest of the asserted rights of traditional owners against those of other interests, because nothing could be claimed from anyone else. There was, for example, no contest with pastoralists about their rights, merely an assertion by claimants that there might be some residue of native title that could continue to co-exist. Ironically, then, the Tribunal was meant to conduct mediation between parties that were, on the face of it, not in disagreement in respect of competing claims of current rights. Nevertheless, the whole machinery of the Act contemplated native title claims as being decided by alternative dispute resolution: so what was mediation actually to be about? It was the NNTT’s existential question.

The Tribunal was able to deal with the fundamental quandary of how to approach mediation in part through professed adherence to a particular school of alternative dispute resolution practice that placed the primary obligation for defining the dispute on the parties themselves. What was variously known as the ‘interest-based’, ‘principled’ or ‘Harvard’ model of alternative dispute resolution required the parties to identify their own interests, after which options for resolving matters could then be developed.³⁵ However, underpinning the parties’ expression of their own interests were certain broad suppositions held within the Tribunal itself that provided a set of wider paradigms for interpreting what was going on in mediation. These assumptions constituted a set of ways of explaining what the ‘dispute’ was really all about. The Tribunal’s collection of ideas of the dispute (none of which was exclusive of the others and indeed were often mutually reinforcing) provided a de facto answer to the basic ambiguity created by the statute as to the purpose of mediation and informed the organisation’s perspective on how particular matters should be resolved.

i. The dispute as expression of broader ‘grievance’ to be addressed

In historical terms, every Indigenous society in Australia has experienced some form of past dispossession or intrusion on their traditional country, commonly in association with violence, indignity and racism. Accordingly, it was assumed that the making of a native title claim, whether wittingly or not, marked the existence of a wider set of feelings of anger and resentment about past and present wrongs that had been suffered. Wootten, for example, argued that every individual claim signalled ‘a community with a grievance about its past treatment’,³⁶ while French described native title as ‘an element of a broader range of issues between Aboriginal and Torres Strait Islander people and wider Australia’ from which it could not easily be disentangled.³⁷ The idea of a native title claim as signifying a wider set of grievances was to implicitly interpret the application process set out in the Act as potentially impoverished if broader matters were left unaddressed. The President’s conception of the task at hand was that, whatever the inadequacies of the doctrine of native title might be, they could be addressed through the creative application of alternative dispute resolution. The parties, French urged, should seek agreements ‘rooted not in the strict letter of the law, nor concessions made under an imperial approach to land management but in the recognition of substantial justice’.³⁸ The NTA was there to sew up the cut, but perhaps the mediation process might be used to treat the infection too.

The proposition that every claim was a sign of wider grievance supported an ideal of the native title process that might be described as ‘mechanistic’, implying that mediation could be used as a constructive and multifaceted instrument with which to begin tackling the full suite of (post)colonial discontents. Native title applications could lead to what one lawyer described as a process of ‘manufacturing’ not only determinations of rights and interests, but socio-economic and political outcomes.³⁹ French himself talked of the ‘sculpting’ of agreements.⁴⁰ The overriding principle was that the parties need not be confined to legalistic outcomes, but might apply their collective will and imagination to developing more ambitious compacts. Interpreting each native title claim as signifying expansive grievance also had consequences in terms of scale. French argued in December 1994 that ‘[t]he fact that native title is an element of a wider range of issues, and cannot really be extracted neatly from them, points to the need to consider and develop an intellectual framework for regional and local agreements, and more comprehensive settlements of questions about land use and management’.⁴¹ Building on some statutory encouragement, the Tribunal explicitly encouraged regional agreements that would be more likely, in financial and logistical terms, to include provision for significant socio-economic outcomes.⁴² In the mid-1990s in particular, the Canadian tradition of regional agreements seemed to offer an example of the road that Australia might take.⁴³

ii. The dispute as ‘knowledge deficit’ to be remedied⁴⁴