Ritter, David --- "You Get What You Pay For" [2001] IndigLawB 48; (2001) 5(9) Indigenous Law Bulletin 14
You Get What You Pay For
by David Ritter[1]
There is no question that the Representative Body system, largely due to lack of resources, is currently seriously diminished and inadequate.[2]
The chronic under-funding of native title representative bodies (‘NTRBs’) is leading to Aboriginal people being deprived of their rights and almost certainly to the extinguishment of native title. It is contributing to the delays and frustrations that all parties experience with the native title process. Unfortunately the government is not seriously addressing this issue.
ATSIC is the sole recognised source of funding for NTRBs to perform their functions under the Native Title Act 1993 (Cth) (‘the Act’). The level of ATSIC funding provided to NTRBs increased enormously in the first years of the Act’s operation. It rose from just under $10 million nationally in 1993/94 to just over $37 million in 1996/97.[3] However the increases subsequently tailed off. Over the next four years ATSIC will receive a total increase of $17.4 million, the first rise in native title funding from the Commonwealth Government to ATSIC since 1995/96.[4]
The level of funding to representative bodies was considered in detail in the Love Rashid Report (‘the Report’) in 1999. The conclusion was reached that ‘NTRBs will not be capable of professionally discharging their functions under the new regime within the current funding framework’[5] and that there was a national level of under-funding of about $30 million per annum. Various submissions for more funding based on this carefully considered report have met with little government reaction.
Funding of NTRBs may have levelled out in recent years, but the statutory work-level has risen enormously. As a result of the 1998 amendments, Division 1A of the Act outlining the original functions of NTRBs was repealed. Section 203B ‘Functions of Representative Bodies’ was inserted imposing new burdens (such as notification and internal review functions) and increasing the onerousness of previously existing functions (such as facilitation, dispute resolution and certification functions). The Act also imposed a strenuous re-recognition process on NTRBs in 1999-2000, which undoubtedly diverted significant resources away from their operational capacities. Not only were the responsibilities incumbent on NTRBs increased under the amendments, the native title process itself and hence the responsibilities of NTRBs were made more complicated.
The amendments have also imposed new levels of accountability on representative bodies. Accountability is unarguably a good thing, but it does impose further burdens. The current situation is that NTRBs find themselves caught in a deadly cross fire of under funding and over-regulation. At different times and in different contexts, NTRBs are answerable to their clients, their constituents, ATSIC’s administration arm, ATSIC’s elected arm, the Registrar of Aboriginal Corporations and the Minister. This is in addition to a NTRB’s primary obligation to comply with orders of the Federal Court and the National Native Title Tribunal.
It has also become increasingly hard for NTRBs to recruit and retain quality staff. The existing handful of technicians with experience in native title as a result of the Mabo litigation or land rights claims in the Northern Territory have been swallowed up by the amount of work. Other lawyers and researchers have been schooled in the skills of native title practice since Mabo, but the numbers are still small and retention rates alarmingly low. The wages and conditions that can be offered by NTRBs are not competitive with what professionals who are experts in the field of native title can command in private enterprise.
The problem is exacerbated by the expectations of the two institutions that administer native title claims, the Federal Court (‘the Court’) and the National Native Title Tribunal (‘the Tribunal’). It is of course entirely proper and desirable that such institutions seek to dispose of matters before them in a timely manner. However the desirability of this aim must be wholly conditioned by an evaluation of whether justice is being done. The Court has indicated that it anticipates disposing of all native title matters before it within three years.[6] There are not enough resources available to NTRBs to come anywhere near meeting this deadline.[7] The Court itself, on the other hand, has recently received an extra $17 million to handle native title matters over the next four years.
Awareness of the issue within the Court itself seems, with respect, ambiguous. Justice North has commented that an ‘issue of great concern to Representative Bodies is the limitation on resources provided to run native title cases... It is to be hoped that funding arrangements can be made which prevent such potential problems arising, and which provide funding certainty to the applicants in native title cases’.[8] On the other hand there have been occasions where the Court has directed matters to trial apparently regardless of the funding predicament of the applicants and contrary to the submissions of counsel.[9] Meeting the stringent deadlines of the Court necessarily means that other work is being deferred or not being done.
The Tribunal also contains a blend of views about the seriousness of resourcing issues facing NTRBs. The Future Act Unit (‘the FAU’) in the Tribunal has been criticised for apparently putting ‘prompt’ ahead of ‘fair and just’.[10] While accepting that the FAU has itself an immensely difficult role in juggling competing concerns, it is critical that there is acknowledgment of the burden future act processes place on representative bodies. Like the Court, the Tribunal’s budget is to be increased by almost $36 million over the next four years.
The situation in relation to funding is even worse for prescribed bodies corporate (‘PBCs’). These are the corporations that hold native title on trust for the owners once it has been determined. The Government has not paid significant attention to how native title is to be managed by PBCs. NTRBs are specifically prohibited from providing assistance to PBCs. There is no separate source of funding within ATSIC to resource PBCs. Mantziaris and Martin make it clear that the success of PBCs is utterly contingent on resources.[11] A striking example is the Smith determination over approximately 48,000 square kilometres of Western Australia.[12] The claim was settled by consent, yet absolutely no provision has been made for funding the administration of the complex obligations imposed upon the PBC by the ancillary agreements that make up the settlement.
In the Yorta Yorta appeal decision, Chief Justice Black referred to the ‘irreversible consequences for indigenous people’ if they lose a native title claim.[13] What a terrible shame if injustice is done and Indigenous people suffer new ‘irreversible consequences’, in addition to the wrongs they have already suffered, just because nobody can find the cash.
David Ritter is the Principal Legal Officer of the Yamatji Land & Sea Council, native title representative body for the Pilbara and Murchison-Gascoyne Regions in Western Australia.
[1] Many thanks to Christina Araujo, Cedric Davies and Frances Flanagan for their assistance.
[2] B Keon-Cohen, ‘Introduction’ in B Keon-Cohn (ed), Native Title in the New Millennium (2001) xii.
[3] ATSIC Native Title Program, Native Title and Land Rights – Program Expenditure Summary, see www.atsic.gov.au.
[4] ATSIC Native Title and Legislation Centre, Capacity Building Program, Draft Discussion Paper (2001) 1.
[5] Senator Brennan Rashid & Corrs Chambers Westgarth, Review of Native Title Representative Bodies, (1999) 43 (‘the Love Rashid Report’).
[6] Federal Court of Australia, Annual Report 1999-2000, 11. Note that there are currently just fewer than 600 claimant applications for a determination of native title within the system.
[7] This is in part made apparent by the small number of cases that have been resolved in the 2000-2001 financial year in Australia.
[8] T North, ‘From the Internet to the Outback – A World Class Court’ in B Keon-Cohn (ed), Native Title in the New Millennium (2001) 28-9.
[9] Keon-Cohen, above n 2. See also Sampi v Western Australia [2000] FCA 1018.
[10] See s 109 of the Act. Yamatji Land and Sea Council and Western Australian Native Title Working Group, Submission in relation to Guidelines on Acceptance of Expedited Procedure Objection Applications, July (2001). Copies may be obtained by contacting the Yamatji Land and Sea Council.
[11] C Mantziaris and D Martin, Native Title Corporations: A Legal and Anthropological Analysis (2000) 287.
[12] Clarrie Smith v State of Western Australia [2000] FCA 1249.
[13] Yorta Yorta Aboriginal Community v Victoria and Others [2001] FCA 45, para 63.