New reasons for old arguments
Federal–state relations are the ants at the picnic of Australian public life, getting into things and spoiling perfect plans; but then the whole point of federalism is to place limits on power.1 At best, federalism provides healthy democratic checks; at worst it promotes blame-shifting and is a cause of governmental incapability in solving problems. The constitutional history of Australia has seen the steady shift of control from the states to Canberra.2 In Aboriginal affairs the transformation was particularly abrupt, with the 1967 referendum removing the prohibition on the Commonwealth making laws with respect to ‘the Aboriginal race in any State’. Thereafter, Indigenous issues became just another area for playing out the long federal quarrel. Following Mabo, a number of state governments were among the most outspoken critics of the doctrine that they perceived as having been foisted upon them by the Commonwealth’s High Court. Once Canberra had decided to establish a national legislative framework for native title, any prospect of one or more of the states going it alone became impossible, as the High Court confirmed when it shut down Western Australia’s attempt to act unilaterally as unconstitutional.3 It was clear that the states could not evade the operation of the NTA and possessed only so much freedom of choice as the Commonwealth’s native title legislation let them have.4 The Premier of Western Australia denounced the statute as a ‘classic case of a federal government introducing legislation which has effectively neutered the states’ ability to control land and resource management’.5
However, although the Commonwealth had demonstrated constitutional supremacy in relation to native title, the states still possessed considerable autonomy within the system. The NTA gave all the states and territories the automatic right to be respondent parties to native title claims, with liberty to decide how they would respond. Additionally, because the states exercise exclusive control over the issuing and registration of property entitlements, they would necessarily play a pivotal role in the operation of the future act processes. It was as if two sets of games were being played simultaneously, with one set of rules about native title and the other about the ordinary system of property law, with the former dominating over the latter but never to the point of total eclipse. The executive governments of the states and territories, then, were among the principal actors within the native title system as the ‘first respondent’ to each native title claim and the ‘government party’ that granted tenure within the future act system.
State governments were required to participate under the NTA’s processes but could simultaneously be engaged with the Commonwealth, trying to achieve changes in the rules through legislative amendment, regulatory adjustment or shifts in policy. How the dynamics worked, in terms of relationships with both Indigenous parties and Canberra, would often depend on which party was in power where. In general terms, native title might be considered to span four political periods in federal relations: 1992–96, when the Keating government dealt with state regimes of mixed political stripe; 1996–2001, during which Howard did the same; 2001–07, in which the conservatives held power in Canberra but nowhere else; then followed by the return of Labor to Commonwealth office under Kevin Rudd. However, while party allegiances were important, they were not always determinative; differences of political culture and economy could also be decisive. On the other hand, some patterns, like state governments wanting to avoid any attempts at federal cost-shifting, persisted regardless of who occupied whichever treasury benches. Some administrations simply produced ministers with greater talent or interest in native title than others, or allocated the portfolio to a more or less influential figure within cabinet. Timing in the electoral cycle could also be crucial in deciding how brave a particular government was prepared to be in relation to Aboriginal rights.
The nature of native title, involving complex and novel questions of governance and law associated with Indigenous affairs, planning, infrastructure, land, water, mining, agriculture, fishing, heritage, judicial administration and so on, meant that there were also a large number of state agencies that became involved. The proliferation of bureaucratic interests, each with their own procedures and imperatives, presented a genuine stumbling block to progressing native title matters. In 1996, for example, the President and Registrar of the NNTT highlighted an occasion when 30 distinct sections of state government had become involved in dealing with a particular matter.6 Native title claimant groups could find that ‘dealing with government’ or ‘talking to the state’ did not involve a single relationship so much as a multiplicity of overlapping dealings that varied widely in their nature. Eventually, all states and territories allocated responsibility for native title matters to a dedicated unit which, in addition to dealing with claimants, was encumbered with the considerable obligation of herding other departmental cats to ensure compliance with law and policy. An exceptional role was also played by the various state law divisions that often appeared to be particularly influential in shaping government policy through the legal advice that was given.7 Ultimately, it is the courts that decide whether or not native title exists over any given area in Australia, making the performance of state law offices singularly prominent in the recognition process.
Within the overall ambit of executive government, there is competition for power, influence and budgetary share. Sometimes divisions between agencies or ministers are caused by no more than the silo-ing of responsibility or the exercise of individual ambition, while others can be as a consequence of departments serving diverse or opposing visions of ‘the public’, creating loyalties defined by sector. State agencies may be prone to championing their own principal stakeholders, with ministries of mining favouring miners, fisheries favouring fishermen and so on. Public service schizophrenia can no doubt frustrate ministerial intentions, but it may also oblige political agendas, as shades of policy preference represented under different departmental hats can allow a government to appear to simultaneously pursue multiple priorities, that are in tension with one another to serve diverse segments of the community. At their worst, departmental cleavages can be deeply corrosive in the successful implementation of complex aims. It has been accepted at the highest levels of the Australian public service that a failure of bureaucratic coordination has seriously impinged the effectiveness of government in Indigenous affairs: native title has not been immune from the problem.8
The state as ‘government party’ in the future act system
The future act processes set up by the NTA are a tripartite affair composed of the native title group, the resource interest that wants the tenement and the state or territory government that is to grant the tenure in question. As the ‘government party’ in dealing with future acts, states have the role of issuing notices about what is proposed, responding to the objections of native title parties and participating in the various consultation, negotiation and arbitration procedures that follow. The NTA separates all future acts into an assortment of categories, each with their own procedural requirements for native title groups, resource interests and state governments. However, by applying the broad criteria of considering the state’s actual level of interest and participation, it is possible to isolate four general categories of future acts that are clearer to understand and give a more accurate impression of political economy than the plethora of legal processes described in their statutory form. These categories are more important in those jurisdictions with a greater area of land subject to native title claim and higher minerals prospectivity: Queensland, the Northern Territory and particularly Western Australia.
The minerals industry is constantly in search of new resource bodies to exploit, a process that generally occurs on large numbers of prospecting and exploration tenements that are granted by state governments for that purpose. Although the hunt for minerals can be invasive and involve considerable disturbance to land, the absence of commercial production means that there are few occasions when any monies will be paid over to native title groups holding the right to negotiate. Exploration without a find is not profitable in and of itself. Instead, for the most part, the convention has become that the explorer will pay for an Aboriginal heritage survey to be conducted, creating a short-term casual economic opportunity for the participants to assist in preventing any damage to sites or areas of particular significance.10 In the formative years of the NTA, state governments had little direct involvement in the process of resolving objections to exploration tenements. The exception was where matters could not be solved by private agreement and ended up in litigation when government would appear and invariably take the part of the explorer in arguing that objections should be dismissed in order that tenements could be granted. More recently, some state Labor governments have sought to resolve the question of exploration tenements more systematically, through the negotiation of regional arrangements. The purpose of regionalisation is to achieve a more standardised approach with fewer transaction costs associated with the processing of each tenement.
Where there is a known resource body and tenements are being applied for to support or allow for extraction, the imminent need for the tenure provides any native title group holding procedural rights with sufficient bargaining power to secure an agreement that contains significant valuable consideration. Deals may include monetary payments, protocols to protect and rehabilitate land, business and employment opportunities, equity allocations and other benefits. Under the letter of the NTA, whenever the right to negotiate applies, the state is meant to be involved in good faith negotiations with the resource interest and the native title group to see if a deal can be reached to get the tenement granted. However, notwithstanding the formal position under the statute, government almost never becomes involved in the substance of talks, which are left to the resource interest and the native title group to conduct between themselves and then record in a private arrangement. Again, though, the exception is where negotiations break down and litigation ensues, when governments will usually carry the burden of arguing that the tenements should be granted.12
Although this category is not situated in any procedural distinctions under the NTA, it is useful to distinguish those projects which involve a private third party proponent but that are of such scale and importance that their progress becomes a matter of more general notice. Where a project has achieved notoriety, a government may take the unusual step of becoming directly involved in the substance of agreement-making. In the Century Zinc case, for example, both the Queensland and Commonwealth governments made substantive contributions to the quantum of consideration offered to the native title claimants for their agreement to the project proceeding.13 Flagship projects are anomalous in that they draw resources from well outside what is usual in the native title process.
In each of the three cases outlined above, there is a private interest that is seeking the grant of tenure from the government. However, in some instances, where the state requires land for its own purposes, there is no third party involved. Here, the state will need to compulsorily acquire the tenure in question and will have to conduct the negotiations and offer the consideration for agreement itself. The distinction is significant, because private proponents have greater flexibility in what they are able to offer native title groups. In some instances the difference may be somewhat clouded where a third party interest is identified to whom the state is proposing to on-sell the tenure, and so which becomes involved in the negotiations. Unlike private contracts, the content of an agreement facilitating a compulsory acquisition is likely to be in the public domain because it involves the expenditure of state revenue.14
In summary, then, state and territory governments have preferred to play a non-participatory and non-interventionist role in the future act system, letting the grantee and native title parties negotiate their own agreements. Exceptions to the laissez-faire approach to future act negotiations have largely occurred only when a party has directly required the formal participation of the government pursuant to the NTA or when some anomalous imperative has demanded state involvement. The single overriding exception to the rule that governments try and stay out of future act proceedings when possible is that if a matter ends up in litigation, then generally the state will take a leading role advocating for an interpretation of the law that will favour the grant of the tenement in question as expeditiously as possible. One of the general rules of understanding how the native title system works is that, when matters end up in court, ordinarily even the most politically progressive of state regimes will try to defeat the claims of the Aborigines.15
The states as ‘first respondent’ in the claims system
All layers of government have automatic party status under the NTA but it is the states and territories, as the administrators of the property system, that are the primary respondents to native title claims, take first position on court documentation and will lead on process. Frequently, meetings will occur between representatives of the state and the claimants with no other party or intermediary being present. Overlaying basic options about when to negotiate and litigate are innumerable smaller decisions in regard to how relations with claimants and third parties are conducted. In both the court and the conference room, state officials can be more or less cooperative and facilitative, making apparently minor choices that can sometimes have great impact.16
In the period of flux described in Chapter 1, the ambiguity of the law made it highly unlikely that state governments would be prepared to settle claims. Despite the optimism and urgings of the NNTT, Indigenous representatives and others, there was never ‘any real prospect’ that state and territory governments as ‘land managers’ would agree to determinations of native title before key legal principles were clarified.17 The uncertainty of the law, particularly in relation to where native title had been extinguished, fostered an environment in which prudent administration meant not agreeing to anything. In the event that a state was prepared to tolerate the uncertainty of the law, the abundance of overlapping claims was enough in some regions to ensure that proceedings were bogged down in intra-Indigenous disharmony, effectively shutting out the possibilities of advancing matters with the government.
Even if circumstances were somehow locally conducive, state governments were still faced with the overall policy dilemma of how to decide whether or not to actively engage in mediation and then whether native title actually existed. It was commonly assumed that in order to achieve a consent determination, claim groups would still need to demonstrate some evidentiary foundation to support their assertion of customary title. Even among Indigenous people, indignation at having to present factual information about what seemed culturally self-evident was tempered with an awareness that it was necessary to prevent tradition-deaf officials being duped by plausible cultural interlopers claiming country to which they had no right. At the NNTT’s first public stakeholder conference in 1994, Michael Dillon, a senior public servant with the Office of Indigenous Affairs in the Department of Prime Minister and Cabinet, stressed that ‘[g]ood research by claimants [would] increase the likelihood of mediated outcomes’.18 Dillon also noted the importance of the ‘pre-acceptance filters’ in the NTA, but within a short period of time the statute’s filtration mechanisms had broken down entirely under judicial scrutiny, leaving the onus of deciding which claims had prima facie merit making them worthy of mediation to fall squarely on state governments. As the President of the NNTT put it, the executive would need to be satisfied that there was ‘a basis for the assertion of an appropriate traditional connection between the applicants for recognition of their native title and the land which is the subject of the application’. Hopefully in more obvious cases ‘the evidentiary threshold set by government for accepting traditional ownership need not be particularly high’.19
Initial state government responses to the question of how to evaluate claims tended to be fairly imprecise and generic. In June 1996, the President and Registrar of the Tribunal advised the Commonwealth that:
One State Government has indicated that it requires ‘credible evidence’ of the elements of native title before it will agree to its existence. This is a standard of indefinite content, ‘credibility’ being in the eye of the beholder. No principle underlying the application of that criterion has been set out. Another State Government has begun enunciating in ongoing mediations a new requirement of a ‘high standard of proof ’ of connection before it will agree to recognize native title. Attempts in mediation to elicit a more precise formulation of this criterion have not been successful. The question must be asked whether the proof on the standard of probabilities would be sufficient to meet this standard. If not, then the particular government may be setting a higher standard than would be applied by a court. The lack of a clear policy foundation for, and enunciation of, the government’s position generated some resistance from Indigenous parties who questioned the utility of further negotiations in the face of an apparently open ended requirement for proof of connection.20
The question of how state governments assessed claims became more urgent as the incremental clarification of the law and the resolution of many of the overlaps, removed other impediments to matters being resolved by agreement. As is discussed further below, the policy positions of state governments throughout Australia became unambiguously accepting of native title and in favour of resolving claims by agreement, but the transformation in attitude did not answer the mechanical question of just when a state should begin mediation and, even more importantly, what criteria should be applied in deciding that a consent determination was appropriate. The key institutional development was the formalisation of the practice of governments requiring each claim group to submit an evidentiary summary known as a ‘connection report’, usually written by one or more senior anthropologists briefed by the claimants’ lawyers and prepared in accordance with state criteria, as a pre-condition to the mediation of native title claims.21 As senior anthropologist Julie Finlayson explained: