• Specific Year
    Any

Finlayson, Julie --- "Managing Competing Agendas: Strategic Partnerships Across the Native Title Operational Environment" [2001] IndigLawB 45; (2001) 5(9) Indigenous Law Bulletin 4


Managing Competing Agendas:

Strategic Partnerships Across the Native Title Operational Environment

by Dr Julie Finlayson.

With the amendments to the Native Title Act 1993 (Cth) (‘the NTA’) came a new operational environment for processing and determining native title applications. From lodgement to determination, the NTA is expected to operate as a seamless system. Players in the system include:

  • the Federal Court – responsible for the determination of claims
  • the National Native Title Tribunal (‘NNTT’) – responsible for case management of native title claims;
  • native title representative bodies (‘NTRBs’) – have a wide range of responsibilities including preparing and researching claims, conducting mediations, and keeping the Federal Court and NNTT informed of the progress of claims; and
  • many others including the Federal Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs, the Federal Attorney-General’s Department, ATSIC, the Indigenous Land Corporation, Indigenous working groups, anthropologists, historians and linguists.

In the new environment the key players mentioned above are now expected to work together, despite competing agendas, to achieve ‘tangible outcomes’. The relationships between these institutions, and their understanding of each other’s internal operations, will therefore have a significant impact on the new system’s capacity to successfully resolve native title matters.

The NTA now tightly regulates the relationships between key agencies. In particular it places new burdens on NTRBs in their interaction with other players. The new environment links NTRBs with the NNTT and the Federal Court, and establishes a new partnership with ATSIC. The amended NTA also enhances the role of the Federal Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs in shaping the general strategic direction of NTRBs,[1] who are now required to develop three-year strategic plans with the approval of the Minister. These strategic plans, in concert with Annual Reports, must be tabled in Federal Parliament. This paper argues that, due to a lack of resources and an under-appreciation of NTRB cultures, the new operational environment disproportionately impacts on NTRBs.

A Changed Operating Environment

Changes in the operational environment have increased the demand for best practice in NTRB service delivery, including increased standards of accountability. Admittedly the accountability requirements mirror a recurring policy theme in Indigenous affairs generally.[2] However, the present emphasis on accountability stems partly from NTRBs’ reliance on public funds and partly from a government view that value for dollar must be achieved through outcomes. Both the Federal Court and the NNTT have tended to see NTRBs as poor performers in achieving outcomes from the claims process. Yet some commentators argue that performance pressures are unequally applied and fall heaviest on organisations representing Indigenous interests.

There are two main reasons for this. Firstly, many of the native title processes necessarily involve interaction with administrative and legal cultures that are unfamiliar and confusing to native title claimants. As Justice North notes, ‘I recognise that the management of native title cases is very much a secondary concern for native title claimants. The primary interest is in achieving a favourable result in their cause.’[3]

Secondly, NTRBs must now attempt to balance financial pressures and responsibilities with the goal of achieving sustainable outcomes. This outcome driven focus often fails to recognise that native title negotiations can be costly. Financial support for what can be a prolonged process is often not specifically factored into global NTRB funding.

Lack of Resources

Government has consistently underestimated the financial cost of achieving outcomes. Where it has been possible to broadly calculate resource requirements, NTRBs were shown to be significantly under-funded for the performance of basic service delivery.[4] Other reviews have suggested that funding needs are difficult to estimate because of other variables at play and the effect of external forces on pacing workloads.[5] In 2001 continued under-funding is likely to be exacerbated by a number of factors, including the expanded range of functions that NTRBs are required to undertake and increased competition for funding between native title institutions.

The Federal Government’s 2001-2002 budget provided additional funding of $86 million over the next four years to the native title system. An additional $16.2 million is to be shared between the NNTT, the Federal Court and native title programs within the Commonwealth Attorney-General’s Department. ATSIC will receive a total increase of $17.4 million over the next four years. Yet, as foreshadowed by ATSIC’s 1999 review, it is now widely recognised that claim applications are likely to peak in 2002-2003. While federal funding allocations may have taken account of the pressures the predicted workloads will have on the NNTT and the Federal Court, it is not clear that NTRBs have received equal consideration. With the cost of claims research and facilitation increasing, NTRBs must also be wondering whether ancillary activities such as negotiations for agreement making and support for Prescribed Bodies Corporate (‘PBCs’) can be funded from the same bucket of money.

PBCs are the bodies that hold native title on trust for the native title holders. Once native title has been determined to exist in an area, a PBC will be set up by the native title holders to hold the native title on trust. Little financial support for PBCs has been contemplated in the implementation costs allocated by ATSIC to NTRBs or in the global budget allocated by government to ATSIC. Even so, at least one State Government – Western Australia – has been requiring claimant groups to incorporate as a PBC as a pre-condition to mediation. Such demands fall heavily on the organisational resources of an NTRB. It is also problematic to require the claimants to incorporate as a PBC before the Federal Court makes a determination as to whether native title exists and as to who the native title holders are. Such a policy could therefore be said to be counter-productive in terms of identifying legitimate claimants.

Funding is only the tip of a myriad of concerns. Human resources is another. NTRBs must be equally concerned about their capacity to attract and retain experienced professional staff in a competitive climate. This particularly affects NTRBs in remote locations. Many NTRBs operate in difficult contexts where the workplace can be remote, fraught, under-funded and expected to achieve outcomes that place unrealistic demands on staff. Such workplaces may have little in common with institutions such as the Federal Court and the National Native Title Tribunal, however difficult and hectic the pace of work.

State and Territory Governments

State and Territory Governments play a significant role in regulating much of the procedural flow of native title processes in regard to future acts and mediation outcomes. However, State and Territory support for processes under the NTA has been patchy. A number of State and Territory Governments, notably Queensland, Western Australia and the Northern Territory, have refused at various points to adopt the legislation’s future act provisions. In this respect, State and Territory Government responses to the NTA have significantly contributed to ‘unworkability, including any potential to establish effective working relationships between industry and claimants’.[6]

When the Western Australia, Queensland and Northern Territory Governments refused to issue future act notifications, a significant backlog accrued. Unleashing the backlog will have serious repercussions for the capacity of NTRBs to perform their statutory role with regard to notifications, not least because of the resource costs involved in timely processing.[7] Further, many of these notices refer to specific mineral rich regions in each State or Territory and therefore will disproportionately affect the NTRBs within that region.

It is to be hoped that the initial period of State and Territory refusals to deal with the legislation and its provisions is over.

The Federal Court

An emerging ‘driver’ with significant instrumental powers in the new environment is the Federal Court. Claim applications must now be lodged in the Federal Court, which manages all claims to the point of determination. In this arrangement, the NTRBs must accommodate the Court’s power and capacity to determine much of the pace of claim progression. The Court, through the discretion of the docket judge, has the authority to propel claims down critical paths. For example, the Court can redirect claims from the mediation phase down a path timetabled for litigation. The Court also sets directions in terms of decisions about presentation of evidence, sets thresholds on evidentiary matters and plays an instrumental role in the content of agreements and consent determinations.

Many NTRBs and claimant legal representatives are concerned about the Court’s role in the native title process. They argue that intervention by the Federal Court occurs with little appreciation of the constraints and pressures under which NTRBs strive to deliver services. North argues that the Court is aware of its limitations in both processing and resolving native title claims.[8] Nonetheless an increasing complaint from NTRBs is that the Federal Court imposes unrealistic requirements and expectations with regard to claim progression or sorting out overlaps and intra-Indigenous disputes. For example, the current estimated ‘ball park’ cost of litigated claims swings between $500,000 and $1.5 million (or more). For a small NTRB with a total funding allocation around $1-2 million annually (for both operating costs and claims assistance and implementation), litigation at this price represents a severe financial burden. Costs of this scale will make performance of other functions difficult to sustain.

NTRBs argue that in practice court orders are made with limited general knowledge of the obstacles faced by NTRBs or the nature of the quarterly funding cycle in which ATSIC releases funds and the conditions under which grants are made.[9] An apparently straightforward court order for mediation is likely to involve meetings with and between claimant groups at every stage. The costs involved include travel costs (and possibly accommodation) for claimants, consultants’ travel and salary costs, and staff costs as they are taken away from their office duties and shepherding of other claims. It may be that strategic planning will enable NTRBs to know the costs for claimant meetings, travel allowance, hiring of consultants and, with increasing experience, over what periods of time and research stages these resources will need to be in place. However, these details are not necessarily in the ken of the Federal Court.

Thus, there is a range of questions to be addressed. For example, what is the cost for NTRBs in time and human resources to undertake notification for future acts, court notices and NNTT matters? What is the extent of the financial burden on NTRBs to hold meetings and what variables are likely to expand costs? Finally, is the Court familiar with the costs of NTRB functions and responsibilities?

Conclusion

In what appears to be a continuing climate of fiscal constraint, what options exist for NTRBs to achieve substantive outcomes? A first step might be to better understand the particular links between key institutions now shaping the native title landscape. All of the relevant institutions and stakeholders need to be better informed of the context in which NTRBs function and the political and fiscal pressures that affect performance. NTRBs may also need to recognise that broadly speaking many of their objectives are shared with both the NNTT and the Federal Court (for example, the timely progression of claims). Thus, they need to locate the potential for strategic partnerships based on common goals, such as resolving claims through improved processes that deliver tangible benefits for claimant groups.

There is undoubtedly a need for a conceptual sea change from how NTRBs have previously operated across the native title system. The new environment requires NTRBs to develop better working knowledge of other agencies’ operational contexts and culture, ultimately with the aim of knowing how best to strategically manage their position within a context of competing agendas.

Dr Julie Finlayson is an anthropological consultant and independent scholar. She is a partner in Anthropos Consulting Services, Canberra.

[1] See s 203D. Note also that s 203D(3) requires ATSIC to be involved in preparation and approval of Strategic Plans. See also Explanatory Memorandum, Chapter 34, Paragraph 108 with respect to ATSIC’s involvement with strategic planning. NTRBs can only gain financial assistance from ATSIC where proper strategic plans are in place and a system of prioritisation for requests of assistance from claimant groups has been implemented as envisaged by s 203B(4).

[2] NTRBs are subject to reporting requirements under the Aboriginal Councils and Associations Act 1979; the NTA; the rules or constitution of the body; ATSIC grant conditions; and, as highlighted by s 201B(2) of the NTA, other laws of the Commonwealth or State or Territory. NTRBs may also be subject to accountability under the Commonwealth Authorities and Councils Act 1997.

[3] Justice AM North, ‘From the Internet to the Outback- a World-Class Court’ in B Keon-Cohen (ed), Native Title in the New Millennium (2001) 29.

[4] Aboriginal and Torres Strait Islander Commission, Review of Native Title Representative Bodies (1999).

[5] See Aboriginal and Torres Strait Islander Commission, Review of Native Title Representative Bodies (1995); Aboriginal and Torres Strait Islander Commission, Appropriate Reform. Project Based Funding for Native Title Representative Bodies (1998); JC Altman and DE Smith, ‘Funding Aboriginal and Torres Strait Islander Representative Bodies under the Native Title Act 1993 in Native Title Research Unit, AIATSIS, Land, Rights, Laws: Issues of Native Title - Issues Paper No.8 (1995); Ernst and Young, Workload Performance Indicators for Native Title Representative Bodies (1996).

[6] JD Finlayson, The Right to Negotiate and the Miner’s Right: A Case Study of Native Title Future Act Processes in Queensland, Centre for Aboriginal Economic Policy Research Discussion Paper No 139 (1997).

[7] For notification functions see s 203BG of the NTA. Note also s 203BA(1) which requires an NTRB to make its best effort to perform its functions in a timely manner.

[8] North, above n 3, 28-9.

[9] ATSIC must comply with terms and conditions of the NTA when providing funding and must also impose requirements on NTRBs through the ATSIC grant. See ss 203A(1)(e), 203CA, 203CB.

Download

No downloadable files available