A moment of change - personal reflections on the National Native Title Tribunal 1994-98.

• Jurisdiction: Australia
• Author: French, Robert
• Date: 01 August 2003

[The National Native Title Tribunal was set up under the Native Title Act 1993 (Cth) to provide an institutional mechanism for receiving, registering and mediating native title determination and compensation applications, and for arbitrating on the proposed grant of mining interests affecting native title. In this article, the former President of the Tribunal reflects upon the first five years of the Tribunal's existence from his perspective and through his experiences as its President from 1994 to 1998. The embryonic state of the new common law of native title, combined with a new and complex statute, interacted with indigenous expectations and non-indigenous fears, uncertainties and hostilities. This created a challenging and difficult environment for the National Native Title Tribunal, which was established to manage substantial parts of the native title process. The article considers the impact of procedural amendments to the Native Title Act 1993 (Cth) and recent judicial decisions upon the future direction of native title law and indigenous aspirations for recognition in Australia.]

CONTENTS

I Introduction: The Discontinuity II The Shock of the New A Tension and Obstacles B Responses from Pastoralists and the Mining and Fishing Industries C Interpreting and Applying Native Title Law: Lessons Learnt III The Announcement of the New Common Law IV The Development of the Legislative Response V The Native Title Act 1993 (Cth)--The Opening Narrative VI The Native Title Act 1993 (Cth)--The Tribunal and Its Processes A President B Tribunal Registrar C Mediation and Other Procedures of the Tribunal VII The Knowledge Deficit--Narrowing the Gap VIII Membership and Administration IX Engaging with the Media X Entering New Country--The Tribunal Grapples with the Law XI Mediation Experiences--Wellington, Broome, Crescent Head, Hopevale and Torres Strait A Wellington B Broome C Crescent Head D Hopevale E Torres Strait XII The 1998 Amendments A Relationship between the Tribunal and the Federal Court B Revised Application Procedures C The Mediation Process XIII The Ongoing Development of the Law XIV Conclusion I INTRODUCTION: THE DISCONTINUITY

He's running this hillbilly tribunal and he has to be responsible for all the stuff-ups and blunders that have occurred. (1) It came upon Australia as one of those moments of existential discontinuity--when a choice is made which is life altering and seems to have little connection with what has gone before. When the High Court decided in Mabo v Queensland [No 2] (2) that the common law of Australia would recognise the traditional relationships of indigenous people to their land and waters, and give effect to fights arising out of them, most Australians either did not know the decision had been made or had little idea of its significance. Yet it reflected a significant shift in Australia's constitutional foundation. (3) It also reflected a fundamental change in the relationship between the indigenous people and the rest of the Australian community. Suddenly, indigenous groups were armed with rights over land and waters, and began to claim their recognition and enforcement. In asserting their traditional ownership, these indigenous groups were no longer solely reliant upon the grace and favour of legislative and executive largesse which underpinned statutory land rights schemes. (4)

This discontinuity in Australian legal history, which occurred on 3 June 1992, echoed into my own life when I accepted appointment as President of the National Native Title Tribunal in May 1994. From the relatively well-defined and controlled existence of a judge of the Federal Court, I moved into a working environment which was heavily political, multi-dimensional in complexity and barely able to be managed at the margins, much less controlled by any organisation or individual. This new working environment involved the application of legal rules of uncertain scope by a body set up primarily to achieve consensual resolution of highly contentious issues affecting a large range of rights and interests in lands and waters. What follows is a personal reflection based upon my involvement in the National Native Title Tribunal over the period of 1994 to 1998, when the new common law and its new statutory vessel were being applied and tested and were evolving. (5)

II THE SHOCK OF THE NEW

In the front line of contention about native title after Mabo [No 2] and the Native Title Act 1993 (Cth) ('NTA') were indigenous groups and organisations who were only just coming to grips with the new common law and the Act. Indeed, these groups were sometimes in conflict among themselves about their traditional laws and customs and the entitlements to which they gave rise. Furthermore, they also had to adjust to the fact that they had rights at all. As the Aboriginal and Torres Strait Island Social Justice Commissioner, Michael Dodson, said:

In mediation of native title claims, one of the most significant effects of dispossession is that Aboriginal people are not accustomed to having their rights respected and having a say in decisions affecting their land. Groups need time to formulate their ideas about issues and about what they want for the future of their communities. After 200 years of oppressing, assimilating and ignoring indigenous peoples, it is unrealistic to expect communities to have their aspirations and ambitions packaged and ready to trade with developers and governments. (6) In addition to these difficulties, there were, as there still are, many cases in which the historical dispossession and forced relocation of indigenous people and the impact of the colonising culture upon their societies made adherence to traditional laws and customs and connection with country difficult to maintain and to demonstrate. (7) However, in spite of these obstacles and the burdens which they bore, indigenous people engaged with the process and faced up to its challenges. Those challenges involved important public declarations of cultural identity which engaged with, and sometimes confronted in a concrete way, wider Australian society. This gave rise to a degree of tension between indigenous and non-indigenous Australia. That, however, was to be expected.

A Tension and Obstacles

Statutory land rights in the Northern Territory had engendered anxiety, uncertainty, resentment and substantial litigation. (8) The historian C D Rowley, writing in 1986 about the popular reaction to land rights laws, spoke of the 'shocked disbelief turning to wrath' of miners and pastoralists. (9) As the late Ron Castan QC stated in 1993, 'the notion that the Aboriginal people have rights in this country is a difficult one for many in our community to grapple with.' (10) For many Australians the advent of common law native title rights required a substantial adjustment.

The primary non-indigenous actors in the native title process were state and territory governments. In some cases, particularly in Western Australia and the Northern Territory, governments adamantly opposed the newly disclosed rights. At best they were feeling their way towards policy responses in a setting of general uncertainty about the legal foundation for such policies. The Commonwealth government itself was involved, albeit in substantial conflict with some of the states and territories. Industry groups, particularly in the mining, pastoral and fishing industries, exhibited a mix of surprise, anxiety and hostility about native title. The media, for the most part reflecting the view of the wider community, did not have any real understanding of the implications of native title and so tended to emphasise the difficulties and dangers of recognising it. Academics displayed a spectrum of responses, ranging from cool analysis to heated polemic. One of the more dramatic examples of the latter was a professorial denunciation of the High Court's decision:

The Mabo case ... except in relation to the Murray Islanders, is nothing more than a monstrous, presumptuous obiter dictum. In the mould of Tasmanian Dams, it represents yet another usurpation by the Court of the constitutional power of the Australian Parliaments and people. (11) Many people were puzzled by the change wrought by the Mabo [No 2] judgments and wondered why it was all necessary. A South Australian pastoralist summed up an important strand in mainstream industry attitudes rather well when he said to me at a country meeting over a cold VB: '[i]f "they" want to come down and hunt or fish on the property they just ring me up and I say okay and they say "thanks, boss"'.

'Thanks, boss' said it all. The man saying it was, like most of those affected by native title on the ground, an ordinary person grappling with a radical shift in the law--a shift which was not going to make life any easier for him--and which raised legitimate concerns about his business and the value of his assets. There were many whose businesses were economically marginal and who saw their leases as their major asset. For them, native title represented just another bureaucratic burden. For others, at a deeper level, it impinged on their view of their place in Australian society, their relationship with indigenous people and their own role and history as custodians of the land.

B Responses from Pastoralists and the Mining and Fishing Industries

There were many common elements in the responses of pastoralists to the advent of native title. However, that is not to say that those responses were entirely uniform. They were complex and operated on a variety of levels, both personal and collective, or by adoption from industry representatives. (12) Generally speaking, the industry was uncertain, and to some degree fearful, about the advent of native title. Ben Patrick, a spokesperson for the Pastoralists and Graziers Association of Western Australia, speaking at a conference in Perth organised by the Tribunal in December 1994, spoke of the Act as creating...