Indigenous Law Bulletin
by David Ritter
The Yamatji Barna Baba Maaja Aboriginal Corporation (‘YBBMAC’) was founded in 1994 to represent the traditional owners of the Murchison and Gascoyne regions of Western Australia (‘WA’). ‘Yamatji’ is the generic word for the cultural block of Indigenous people from the area and ‘Barna Baba Maaja’ means, in rough translation, ‘boss of land and sea’ in the tongue of the Wajarri people, the largest local language group. Like other third generation land councils, the establishment of the YBBMAC was a direct response to the Mabo v Queensland [No 2] (1992) 175 CLR 1 (‘Mabo’) decision and native title representative body (‘NTRB’) status was bestowed by the Minister for Indigenous Affairs, the Hon Robert Tickner, in early 1996. The headquarters of the new land council were set up in ugly, low-ceilinged and largely windowless premises in the retail precinct of the beautiful mid-west coastal town of Geraldton, about six hours’ drive north of Perth. Wayne Warner, a Yamatji man, was the first Executive Director.
The achievements of YBBMAC in its first few years of operation may seem modest in hindsight, but the level of confusion and hostility that beset native title in those years was inimical to the stable operations of the native title representative bodies. When Wayne Warner made way for Clinton Wolf as Executive Director in late 1998, the YBBMAC had granted assistance to only three native title claims, reached a small number of future act agreements and employed fewer than 10 staff. Local Indigenous politics and the interference of powerful non-Indigenous interests created a volatile and threatening atmosphere. Yet the young land council had at least steered clear of the chronic problems that had afflicted and were to cause the downfall of some other WA NTRBs, while still quietly holding its own in national forums such as the National Indigenous Working Group. The comparative stability of the YBBMAC provided a foundation for later expansion and advancement and the opening of a technical office in Perth in July 1999 was a sign of growing ambition and confidence.
The Howard Government’s amendments to the Native Title Act 1993 (Cth) (‘NTA’) ushered in major changes to the operating environment, including a transitional re-recognition process which required all existing NTRBs to reapply for their statutory standing. In areas where more than one representative body had been recognised, there would be a competitive process, not unlike the letting of a tender, from which there could only be a single winner. Re-recognition was a drawn out affair which resulted in the Hon Minister John Herron’s decision that a number of existing bodies including the Aboriginal Legal Service (WA) (‘ALSWA’), the Western Desert Land Council and the Pilbara Aboriginal Land Council would lose their NTRB status, while the YBBMAC not only held its own, but gained a new jurisdiction in the neighbouring Pilbara region. Ultimately though, as a matter of social and local political reality, whether the YBBMAC became the NTRB for the Pilbara was a matter for decision by the traditional owners themselves. In September 2000, ATSIC hosted a vast meeting of approximately 500 Aboriginal people representing all registered native title claim groups of the Pilbara. The gathering overwhelmingly decided in favour of the YBBMAC, but the decision was not without rancour among a minority and litigation arising has not yet concluded.
The YBBMAC’s expansion in to the Pilbara gave the organisation a total jurisdiction of about one million square kilometres and required a rapid expansion of operations. New offices were opened in the northern towns of Karratha, South Hedland, Tom Price and Roebourne and almost 30 additional staff (many with no native title experience) were recruited in a matter of a few months. The consolidation of the presence of YBBMAC in the Murchison and Gascoyne regions, coupled with the expansion in to the Pilbara, saw the number of native title claims represented swell to 30. The transition of YBBMAC from a minor regional land council to one of the larger and better known NTRBs in Australia was sealed by YBBMAC hosting the 2002 Representative Body Conference in Geraldton, an event which attracted more then 400 delegates. Constitutional change was also required to reflect the inclusion of new areas and new constituents within the compass of the YBBMAC and such reform proved an arduous process which was not concluded until early 2003. The constitution now establishes two regional committees that enjoy some autonomy but which together elect a peak committee. The name of the organisation was also amended in due course to become the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’). Roger Cook was the organisation’s third Executive Director, for just under two years between 2001 and 2003.
Happily, the YMBBMAC has largely managed to avoid resource-intensive and destructive litigation. None of the claims the YMBBMAC assists have been referred to trial before the Federal Court, though the organisation has been required to finalise matters in the trial of two native title claims which had been taken in to trial by ALSWA, prior to the latter losing NTRB status. Both claims in question resulted in determinations of native title. Notwithstanding the overall philosophical position of avoiding Court, YMBBMAC has also seen fit to participate in a number of the seminal High Court cases as an intervener. The general absence of litigation has not been accidental, but rather a deliberate strategy to conserve scarce resources for mediation, negotiation and the protection of native title interests through the future act system. In part, the averting of litigation is a consequence of YMBBMAC enjoying, for the most part, cordial and functional relationships with both Labor and Coalition State Governments. A simple Co-operative Planning Agreement was negotiated with the Court Government, while a variety of more complex successor arrangements have been agreed with the Gallop administration. The growing political sophistication of the YMBBMAC is indicated by its membership of such diverse collectives as the Chamber of Minerals and Energy and the Conservation Council of WA.
The actual business of giving instructions about and conducting negotiation over native title within the YMBBMAC’s jurisdiction is generally conducted by working groups which act on behalf of the broader native title claim groups and with the imprimatur of the statutorily entrenched applicant for the claim. These working groups have demonstrated quite remarkable resilience and effectiveness within the maelstrom of the native title environment. The longest standing – the Nanda and Badimia peoples’ working groups - have been operating with significant continuity of membership, practice and representation, since 1997-98. Indeed, there is a strong probability that the working groups would provide a practical and effective mechanism for governments to interface with traditional owners in a whole range of other contexts. The possibility that the traditional owners represented by YMBBMAC may play an expanded role in relation to governance and the brokering of service provision on their own country in a post-ATSIC environment is an exciting prospect.
The domain of the YMBBMAC is one of the most resource-rich places in the world, including giant iron ore deposits, the North West Shelf gas reserves, the far Western Goldfields as well as salt, copper, tantalum, vanadium, mineral sands, talc, manganese and precious stones. Through the operation of the future act system, the YMBBMAC has been required to be highly active as a broker between the traditional owners and the resources industry. It has become the standard practice of the YMBBMAC to object to all tenements advertised as attracting the expedited procedure under the NTA, as well as to widely utilise the Mining Warden’s Court. The purpose of these mass objections is not thoughtless oppositionalism or needless obstruction, but rather to simply secure the opportunity on behalf of traditional owners for an agreement to be reached about the tenement in question, involving the informed consent of traditional owners. The results at both an exploration and a development level have been spectacular. In the 2001-02 financial year for example, the YMBBMAC carried 76 per cent of all s 237 objection matters (relating to future acts) in WA and the vast majority of objections resulted in resolution by consent in one way or another. At the project-development end of the spectrum there has also been broad success with numerous comprehensive agreements being achieved. The most famous of these is the land use agreement over the Burrup Peninsula, an extraordinary achievement in terms of size, value, comprehensiveness, the speed with which it was obtained and the legal circumstances of the negotiations, including the imminent determination of the native title claim itself and the need to prosecute the first successful application under s 66B of the NTA to remove an applicant.
YMBBMAC has also experienced troughs in its fortunes. The premature deaths of many traditional owners, a former Chairperson and a number of staff members have provided a vivid reminder that the recognition of native title in Mabo did not, as of magic, alter the horrendous early morbidity rates among Indigenous people. More prosaically, certain events among the management committee in late 2002 gave rise to a ministerial investigation which did not show the governance of the YMBBMAC in a favourable light. Like all NTRBs, YMBBMAC has also experienced the exigencies associated with the miserable underfunding of NTRBs and the rollercoaster ride of changes in the law of native title which may have left many traditional owners feeling, not unreasonably, bemused and skeptical.
One of the defining characteristics of YMBBMAC has been the commitment of its leadership to undertake as many core native title functions as possible in-house, rather than through the use of consultants. The YMBBMAC has outsourced only a limited quantity of research and legal work since 1999 and has developed an experienced and stable team of professional staff. It is a telling statistic that at the end of the 2003-2004 financial year the YMBBMAC employed seven lawyers of more than three years’ continuous service with the organisation. The retention rate among Indigenous field staff is even higher, with two Aboriginal Liaison Officers following an impressive career trajectory to positions of regional management. Other senior technical staff have also been employees of YMBBMAC for substantial periods of time. The size of the organisation, along with its staff retention rates and the professional standing of some of its employees within their chosen fields has fostered the development of a professional and vibrant work culture. Perhaps above all though, the fortunes of NTRBs hinge on their committees and the YMBBMAC is currently favoured by clear-sighted leadership, committed to getting results, with good governance along the way.
Indeed the future for YMBBMAC, now under Executive Director Simon Hawkins, seems extraordinarily bright. There is an agreed process with the State for the resolution of all outstanding claims through negotiation. Positive determinations to date of the existence of native title in the claims decided within the area in question would suggest that prospects are excellent. The future act agreement horizon is remarkable. In the Pilbara, the YMBBMAC stands at the intersection of billions of dollars of new industrial and resource development with 40,000 years of culture and history. The boom in the Chinese economy is currently underpinning a fantastic and unprecedented demand for iron ore which is requiring a massive expansion in mining, exploration and infrastructure in the Pilbara, with a concomitant requirement for a plethora of comprehensive agreements between traditional owners and resource interests. Seventeen of the nineteen registered claims represented by the YMBBMAC in the Pilbara are currently engaged in negotiations with giant iron ore interests, creating the potential for renewed Indigenous confidence and prosperity on a region-wide basis. The corporate attitudes of the majority of the resource companies in question are for the most part progessive and constructive, greatly increasing the likelihood of positive and lasting outcomes.
The native title process within the jurisdiction of the YMBBMAC has produced determinations of native title over about 100,000 square kilometres; tens of major and comprehensive future act agreements; hundreds of exploration and heritage survey agreements and thousands of traditional owners being involved in making decisions about land use on their traditional country. The various societies of Indigenous people of the Pilbara, Murchison and Gascoyne regions currently enjoy, in a formal sense, greater control over their traditional country than at any time since the beginning of colonisation, a proud achievement that has been realised with the assistance of their own representative organisation; the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation; a strong, vibrant, imaginative and resilient land council.
David Ritter has been the Principal Legal Officer of the Yamatji Marlpa Baba Barna Maaja Aboriginal Corporation since July 1999. He is also a visiting fellow in law at the University of Western Australia. David extends his thanks to Marjorie Sydall for her editorial contribution to this article.
The Madison Avenue track ‘Don’t Call me Baby’ has, since 2001, been an unofficial theme song of the Legal Unit of the YMBBMAC.
 The first generation were the statutory land councils, the second generation were those land councils established in response to events but with no particular statutory footing and the third generation were land councils established specifically to become native title representative bodies within the native title system.
 ABC Television, ‘Secret White Men’s Business’, Four Corners, 20 March 2000, <http://www.abc.net.au/4corners/stories/s111958.htm> at 20 October 2004.
 The performance of the original representative bodies was a matter of scrutiny: see eg, G Parker et al, Review of the Native Title Representative Bodies, Aboriginal and Torres Strait Islander Commission, Canberra, (1995).
 The NTA permitted more than one native title representative body for a single area. The Aboriginal Legal Service (WA) had NTRB status for the whole of Western Australia and had a somewhat less than easy relationship with the regional bodies including the YBBMAC. The ALSWA subsequently lost its status throughout WA.
 In particular, the Pilbara Aboriginal Land Council, or at least some of its officers and former employees have stoutly but fruitlessly resisted that organisation’s denoument. See Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs  FCA 1113; (2000) 175 ALR 706.
 ‘Marlpa’ is a generic term used by some traditional owners to denote the Aboriginal people of the Pilbara. It is not a Wajarri expression and the organisation’s name – though a democratic choice – is not, I understand, loved by linguists!
 See Smith v Western Australia  FCA 1249 and Daniel v Western Australia  FCA 666.
 Including for example Commonwealth v Yarmirr (2001) 184 ALR 113 and Western Australia v Ward  HCA 28; (2002) 191 ALR 1.
 The full text of the agreement with the Court Government is set out in 4 Native Title News 227-31.
 See David Ritter, ‘Doing the Business: A Few Observations on the Working Group Model for the Provision of Native Title Legal Services’  IndigLawB 46; (2003) 5 Indigenous Law Bulletin 12
 At the time Western Australia accounted for 97 per cent of all future act matters nationwide.
 A considerable number of which are described in broad terms in the 2003 YMBBMAC Annual Report, 42-50.
 See ‘Burrup Peninsula’ in Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2003, (2004),84-7.
 See Daniel v Western Australia  FCA 1147.
 In addition to the author these are, in no particular order, Jeremy Ryan, Helen Lawrence, Michael Ryan, Pamela Kaye, Frances Flanagan and Christina Araujo.
 Gavin Egan, Jeff Brown, Slim Parker, Charlie Coppin and Donny Wilson have all been with the YMBBMAC for more than four years and are the heart and soul of the employee group.
 Fred Taylor and Alum Cheedy.
 Notably, senior future act technicians Cedric Davies and Adrian Murphy; anthropologist Dr Nicholas Smith and heritage practitioner Phil Haydock. The longest serving employee is book-keeper, Donna Murdock.
 Simon’s background is in local government and town planning.