Dolman, Kevin --- "Native Title Mediation: Is it Fair?" [1999] IndigLawB 40; (1999) 4(21) Indigenous Law Bulletin 8

Native Title Mediation: Is it Fair?

The first part of this paper is a statistical evaluation of the types of agreements that have been reached under the Native Title Act 1993 (Cth) (the ‘NTA’) as it existed prior to the Native Title Amendment Act 1998 (Cth). The second part briefly examines the mediation procedures provided under the NTA for reaching these agreements. It is necessary to emphasise that this paper does not purport to assess the performance of the National Native Title Tribunal. Rather, it uses statistical outcomes as a basis on which to evaluate the mediation processes provided for under the NTA – processes which the Tribunal simply implements.

Evaluating Agreements under the NTA

It must be remembered that the NTA was a political compromise between Indigenous and non-Indigenous interests in land. Then Prime Minister Paul Keating described the Federal Government’s ‘twin goals’ in his second reading speech to Parliament as follows:

... to do justice to the Mabo decision in protecting native title and to ensure workable, certain, land management.^[1]

How do we evaluate the outcomes of this compromise? Burke says Indigenous criteria of evaluation must go beyond the law to the ‘practical implications...for the actual exercise of rights’.^[2] The key concern, he says, ‘is the ability of native title holders to have an effective say over what happens on their traditional country.’^[3] This may mean that native title holders have an effective say over the industrial development that happens on their traditional country. Further, or in the alternative, it may also mean that native title holders have an effective say over the cultural, social, economic and political development on their traditional country.^[4] In evaluating its-agreement-making provisions, the NTA’s ability to distinguish between, and to deliver outcomes that address both of these criteria, is critical.

The first national audit of agreements reached since the introduction of the NTA was conducted in June 1998.^[5] It revealed that 1,100 agreements had been struck between different Indigenous groups and miners, industry bodies and governments.^[6] The audit revealed that there had only been two determinations of native title since the commencement of the Act on January 1, 1994.^[7] Put another way, only 0.18% of agreements had resulted in a determination of native title.

The audit reveals that a future act agreement^[8] is four times more likely to be reached.

In dividing the agreements into two categories, the national audit would appear to imply that these categories effectively represent the ‘twin goals’ of the NTA. That is, that the ‘future act agreements’ category represents industry concerns and the ‘native title settlement, partial or progress agreements’ category (hereinafter the ‘native title-related agreements’) represents Indigenous concerns. Generally, this seems correct, though there have been some benefits to Indigenous communities from future act agreements and there have been some benefits to industry from native title-related agreements.

‘Future act agreements’ are usually of a relatively low-key and low-cost nature, often involving arrangements for cultural heritage clearance of tenements.^[9] Essentially, they are geared towards facilitating industry access to lands subject to native title claims. ’Native title-related agreements’ encompass a broad range of agreements. It may be misleading if, as a category, it is considered to represent Indigenous goals. For example, 71% of these native title-related agreements were made in Western Australia,^[10] a state not previously known for its willingness to recognise native title.^[11]

It is possible to break this category down even further. As was mentioned earlier, at the time of the audit there were only two determinations of native title, leaving 225 other native title-related agreements. Just over half of these (52%)^[12] were agreements to amend native title applications to remove particular tenure types, to reduce the number of parties or to reduce the number of claimants.^[13] These are ‘administrative’ agreements and represent only very small steps towards a native title determination.

The remaining 107 native title-related agreements may be said to represent the substance of the NTA's recognition of native title holders’ right to an effective say over their traditional country. According to the tribunal, these 107 agreements comprised;

• reconciliation agreements,
• site protection agreements,
• framework agreements, or
• draft determinations of native title. ^[14]

The first two, namely reconciliation and site protection agreements, are provided for in legislation existing prior to the commencement of the NTA.^[15] It would be inaccurate to attribute the formation of these agreements solely to the NTA, although the Act’s mediation processes do provide an additional opportunity for the negotiation of such matters.

A framework agreement simply sets out the protocols governing and substantive parameters within which negotiations will occur, including a timetable, the composition of negotiating teams and arrangements for legal representation.^[16] While they represent a marked change in the relationship between government, industry and Indigenous people, they do not deliver Indigenous rights to self-determination. Rather, they establish broad principles for agreement, which may or may not be achieved in the short- or long-term.

In regards to draft native title determinations, it is impossible to say how many are near finalisation. The statistics are not available. Since the national audit, there have been another six determinations of native title.^[17] Nevertheless, native title determinations still represent a very low proportion of total agreements.

These statistics coming out of the report indicate that the agreements provisions of the NTA enabled native title-holders to have a say over the development that occurred on their traditional lands. However, further research is required to determine if it was an ‘effective’ say, as required by Burke. The statistics suggest that the vast majority of native title-holders are not having an effective say about political, social and cultural development on their traditional lands.

Overall, there appears to be a heavy emphasis on the goal of ensuring a ‘workable, certain, land management.’ What is the cause or causes of this imbalance? I suggest that there are various power imbalances which affect the outcomes of agreements reached under the legislation. All parties should be aware of the sources of the power imbalances to ensure that they don’t affect the outcomes.

Mediation as a Method of Achieving Agreement

The provision of mediation services was the Tribunal’s primary function.^[18]

Mediation is a form of alternative dispute resolution.^[19] It has been heralded as a cheaper, faster and often more satisfying option than litigation.^[20] In theory, it’s strength arises from the consensual nature of parties resolving their own dispute under the guidance of a neutral third party. Parties are empowered to find their own solutions which are limited only by their imaginations. Their consent is required before a final agreement is reached. The Tribunal says its mediation strategy is based on the concept of ‘principled negotiation’.^[21] Under this model, the dispute is viewed as a shared problem between the parties. The parties generate a range of options directed to an outcome acceptable to all. The process focuses on meeting the wide and varied interests of the parties rather than on deciding who is right and who is wrong.^[22]

The potential danger of mediation is that the outcome will simply reflect existing imbalances in the power relationship between the parties because it is, in essence, a parties’-controlled resolution.^[23] Mick Dodson identifies one of the fundamental difficulties in native title mediation as the implicit imbalance in power relationships between Indigenous and other Australians.^[24] He stresses the importance of the ‘awareness of the power imbalance in mediation... and its own processes.’^[25] In other words, the power imbalance can arise from the specific mediation and/or from the stipulated processes of the legislative framework in which the mediation is conducted.^[26]

Dodson cites dispossession as the ‘biggest single operating cause for the power imbalance’.^[27] At the parties’ level, he observes that native title claimants do not bargain from a position of previously established and recognised rights. Native title is proving the hardest right to legally define and describe, and its description therefore revolves around the other parties’ interests. Hostility is a source of stress for Indigenous people and the number of parties involved can intimidate Indigenous groups.^[28] The Tribunal recognises the power imbalance at this level and employs a range of mechanisms to counter its influence.^[29]

At the systemic level, the legislative regime is itself a product of the lack of Indigenous power in Australian society. There were no Indigenous judges on the High Court in Mabo.^[30] There were no Indigenous politicians participating in the parliamentary debates on the Native Title Bill 1993. Indigenous people have very little access to mainstream media and have virtually no economic power with which to influence politicians. The consequence is the imposition of a range of rules and procedures that in effect contaminate the principles underlying mediation to the detriment of Indigenous peoples’ negotiating power. Most notable amongst these rules and procedures are the future act regime^[31] and the expedited procedures.^[32] These procedures facilitate government grants and actions over native title land and waters.^[33]

An Indigenous community’s negotiating power arises from its claim to common law native title. If some elements of their native title are not recognised, then Indigenous bargaining power is diminished. For example, the future act regime and the expedited procedures ensure that a valid grant will prevail over any native title rights and the exercise of those rights and that native title-holders cannot prevent any such activity.^[34] This reduces Indigenous power to withhold agreement during mediation for a right to an effective say over the political, social, cultural and economic development on their traditional lands.

The Australian Law Reform Commission says that a threshold issue in assessing ADR is whether it delivers justice.^[35] It says that despite the imprecision of the term, justice is viewed as requiring;

I. consistency, in process and result - that is, treating like disputes alike,

II. a process which is free from coercion or corruption,

III. ensuring that inequality between the parties does not influence the outcome of the process.^[36]

Firstly, it is impossible to know if there was consistency, in the process and results of mediation, because the vast majority of negotiations and the resultant agreements are confidential.^[37] Secondly, there were no specific investigative processes within the NTA to ensure that it is operating free from coercion or corruption.^[38] Finally, the statistics suggest quite strongly that the inequality between the parties may be influencing the outcome of the process. Therefore, the NTA’s mediation processes may be an unjust alternative to litigation for native title issues.

I have discussed the law and outcomes produced by the Act as it stood prior to the Native Title (Amendment) Act 1998 (Cth). The amendments created a process for the making of Indigenous Land Use Agreements. It remains to be seen whether ILUAs will deliver outcomes that conform with Indigenous criteria and/or deal with the unequal balance of power between Indigenous and non-Indigenous negotiating parties.

Kevin Dolman is an Eastern Arrernte man who is a fifth year Law/Commerce student at the University of NSW. This article is a condensed version of a paper submitted for assessment.

^[1] Commonwealth, Hansard, House of Representatives, 16 November 1993, (Paul Keating, Prime Minister).

^[2] Paul Burke, Evaluating the Native Title Amendment Act 1998, (1998) 3 AILR 333, 334.

^[3] Ibid.

^[4] Article 1 (1) of the International Covenant on Civil and Political Rights, 999 UNTS 171, 6 ILM 368, states that ‘[A]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

^[5] Commonwealth, National Native Title Tribunal Annual Report 1997-98, (1999) 41.

^[6] Ibid.

^[7] The Hopevale determination on 8/12/97 and the Dunghutti determination on 9/9/96.

^[8]

^[9] Commonwealth, above n 2, 35.

^[10] Ibid 43.

^[11] The NNTT’s Annual Report 1997-98 does not give a reason for the disproportionately high number of native title-related agreements in that state.

^[12] Commonwealth, above n 2, 42.

^[13] Ibid.

^[14] Ibid 41.

^[15] They are the Council for Aboriginal Reconciliation Act 1991 (Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

^[16] Commonwealth, above n 2, 29.

^[17] NNTT Timeline, <http:// www.nntt.gov.au> .

^[18] Commonwealth, Native Title: a five year retrospective 1994-98, Report on the operations of the Native Title Act 1993 and the effectiveness of the National Native Title Tribunal, (1999) 60.

^[19] Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (2^nd ed, 1992) 60.

^[20] Ibid.

^[21] Australian Law Reform Commission, Review of the adversarial system of litigation - ADR its role in federal dispute resolution, Report Number 24 , (1998) 73.

^[22] Ibid.

^[23] Astor and Chinkin, above n 19, 105.

^[24] Mick Dodson, ‘Power and cultural difference in native title mediation’, (1996) Aboriginal Law Bulletin, 3(84) 9.

^[25] Ibid.

^[26] Astor & Chinkin note that ‘for the purposes of analysis, critiques of ADR can be divided into two types, those which consider the place of ADR in relation to its social context and those which look internally at ADR procedures and their affect on the participants’. Ibid, above n 19, 12.

^[27] Ibid.

^[28] Australian Law Reform Commission, above n 21, 77.

^[29] These include: recognising the need for flexibility in applying conventional negotiation models; acknowledging the complexity of traditional Indigenous decision-making processes; assistance to parties pre-mediation through research and consultation and scheduling of proceedings to take account of customary obligations; and the establishment of procedures to maintain secrecy of information where possible. Ibid 62.

^[30] Mabo v Queensland (No.2) [1992] HCA 23; 175 CLR 1.

^[31] NTA, Part 2, Division 3.

^[32] Ibid s 237.

^[33] Commonwealth, Commentary on the Native Title Act 1993 - Native Title Act 1993 and Regulations, 2^nd ed (1998) 26.

^[34] NTA s 44H. Section 24GC relates to primary production activities.

^[35] Under NTA s 109, the NNTT is required to operate in a fair, just, economical, informal and prompt way.

^[36] Above, n 21, 35.

^[37] Sixty per cent of native title-related agreements are confidential and almost all of the future act agreements are confidential. Ibid, above n 2, 42.

^[38] The Native Title Act 1993 (Cth) s 199C(3) provides for termination of an agreement in the event of coercion or duress.