McLean, Adam --- "Frameworks to Settling Native Title" [2009] IndigLawB 24; (2009) 7(12) Indigenous Law Bulletin 27
Frameworks to Settling Native Title
By Adam McLean.
It is well recognised across Australia that any beneficial purpose of the Native Title Act 1993 (Cth) (‘NTA’) has been frustrated by excessive delays and cost. The National Native Title Tribunal (‘NNTT’) estimates that, at the current rate of resolution, it will take over 30 years to resolve current and anticipated native title claims.[1] Of course some states and territories are far more advanced in their settlement of native title applications than others.[2] But on the whole, the time required to finalise matters is increasing; on average, determination of an application by consent takes nearly six years.[3] Further, the costs expended in court procedures and mediated settlements, whether or not those settlements include a consent determination of native title, sometimes exceed the value of land and other benefits secured for the traditional owners. Moreover, the official costs do not record personal costs to the communities involved; the strain of pursuing uncertain outcomes, which can drag on for years, often creates further distrust within both Aboriginal and non-Aboriginal groups. This is a legacy of native title law that will take some time to repair.
Recently, Chief Justice Robert French of the High Court, a former President of the NNTT, proposed a number of measures including further amendments to the NTA to assist in the litigation and settlement of native title applications. [4] But his Honour noted that the delays and costs can only be resolved to a limited extent by process improvements. This article will argue that the current provisions of the NTA are adequate to enable parties to native title applications to reach agreements on all aspects of native title, including consent determinations. However, it is the lack of political will, coupled with bureaucratic inertia, that is the chief cause of the delays and high costs.
The Advantages of Settlement
The benefits of settlement over litigation are obvious given the expense and time involved in resolving legal disputes. But there are additional benefits of settlement in a native title context that are not always present in other types of litigation.
If an applicant to a claim of native title is successful in litigation, the court determination must specify the nature and extent of other interests and how they relate to the native title rights and interests.[5] This means that the Commonwealth, State, Territory or other party must sit down and negotiate with the - now - native title holders as to what the determination means for their particular area of land and water. Often the other parties will have to work with the Indigenous title holders in future dealings, particularly where the land is intended for a major project, such as mining or a national park. Of course, a favourable court determination increases the native title holders’ bargaining power in those subsequent negotiations. However, negotiations are much more difficult when the determination emerges out of hotly contested litigation; it may take years to reconcile the parties so that they may work together effectively.
Further, like most civil litigation, it has been left to States and Territories to determine, on a case-by-case basis, what claims they will attempt to settle and on what terms. Unfortunately, this means that native title representative bodies, applicants and their legal advisors must spend extra time and costs gathering comprehensive anthropological and historical material necessary to properly prepare an application for litigation. It is uncertain what (or how much) material is required at any given time; this will vary according to region and the state of the law at the time. The NNTT cites the preparation and assessment of material to establish a connection to land as the primary source of delays in resolving claims.[6]
The NSW Government, for example, has a long-held policy requiring ‘credible evidence’ before entering into settlement negotiations. Unfortunately, it is unclear what ‘credible evidence’ is at any given time, so applicants must prepare all material as advised by their specialised legal representatives. However, this may not correspond with what material the Government’s legal advisors consider to be ‘credible’, often leading to an intractable dispute between the parties. This tension can be further compounded where matters are set for litigation: while applicants want to demonstrate ‘credible evidence’, they do not want to show their entire hand at the negotiation stage.
Moreover, there are no limitations as to what may be included in a negotiated outcome. While this can sometimes afford greater flexibility according to the circumstances of the parties, any such benefit is often outweighed by the disadvantage caused by their divergent expectations. Different ideas about appropriate or feasible outcomes mean that negotiations may take many years, while parties seek senior legal advice and engage in legal and political posturing; no group is willing to settle in case there is a possibility of a better outcome.
Clearly, if negotiated settlements were able to proceed according to clearly defined parameters, with clearly defined outcomes, the savings in time and cost would be enormous.
Framework to Settlement
A framework agreement for settlement of native title applications, negotiated
between all major players and stakeholder groups –
Commonwealth, states,
territories, representative bodies, minerals councils – would save time
and resources that might otherwise
be spent preparing for litigation, and assist
parties to work towards achieving real outcomes. But to achieve this, the
agreements
should not be merely vague pronouncements that the parties will work
to reach agreements; they must provide clear, detailed and precise
formulas to
reach outcomes, clearly spelling out:
• The material required
(historical/genealogical/anthropological reports) to resolve a consent
determination, and the terms
or types of determination
available;
• The material required to settle applications where a
consent determination is not an outcome but where parties agree to other
terms;
• The precise terms of settlement for co-management
arrangements in respect of national parks and
forests;[7]
• Which
specific acts are authorised as ‘future acts’, together with a
simplified future act regime;
• Whether the benefits provided for
in the framework represent all possible compensation outcomes available to
applicants/
For exploration and mining, framework agreements should also
establish the basis for authorising future acts associated with mining.
This
should also include a clear formula for deciding royalty payments for various
settlement scenarios according to different minerals.
In this way, parties
– particularly applicants – would be able to see the basis of an
outcome before entering into negotiations.
Where terms are unsuitable or
unacceptable, litigation would remain an option.
Further, once parties
agree to negotiate under a framework agreement, the outcomes would be
essentially administrative or bureaucratic.
Outcomes could be negotiated by
applicants directly or by relatively junior advisors for all parties without
further recourse to
expensive legal teams, anthropologists and historians. This
has been the experience of the land rights regimes in NSW and the Northern
Territory,[8] where large land grants
worth millions of dollars barely rate a mention in the local news, so routine
have they become.[9] Similarly,
complex national park joint management agreements have been reached in
relatively short periods of time, at greatly reduced
cost, under the National
Park and Wildlife Act 1974 (NSW). This is because the precise terms
of the agreement are clearly set out in the legislation; all parties know what
they are in for before
they begin.
The concept of settlement framework
agreements is not new. The Victorian Government entered into a settlement
protocol for the negotiations
of a native title framework agreement for Victoria
in 2000 and announced in June this year that it has settled a negotiation
framework
for native title applications in that
State.[10] However, this
groundbreaking framework does not incorporate Commonwealth participation. Even
though most of the responsibility for
native title rests with states and
territories, to be a workable and effective mechanism for progress, Commonwealth
Government must
also be included as a party in framework agreements. The
Commonwealth should promote and broker settlement agreements across Australia;
most settlements entail compensation issues that require some level of
Commonwealth involvement. Settlements that include a consent
determination, for
example, necessarily involve questions about compensation for past, intermediate
and future acts that extinguish
or impair native title. Further, framework
settlement agreements must be accompanied by appropriate commonwealth and state
legislation.
This is because many outcomes, while not precluded in the NTA or
Indigenous Land Use Agreements, are not explicitly provided for
in appropriate
state-based legislation.
More than Amendments to the Native Title Act
Chief Justice French suggested a number of amendments to the NTA, including a
presumption in favour of native title under certain
conditions, and provisions
requiring historical extinguishment to be disregarded. These are not necessary
pre-conditions to the settlement
of native title issues but, without the
political will to settle applications, such changes would be an important step
towards increasing
the bargaining power of applicants in native title cases.
Hopefully such amendments would assist parties negotiate more readily towards
settlement. A properly constructed framework agreement could achieve practical
benefits for Indigenous applicants in a more direct
way; it could redress much
of the existing confusion and procedural inequality attaching to the current
system.
Who’s Who?
Who is rightfully included in the
claimant group, overlapping claims and other internal disputes are a major
source of delays in settlement.
States and territories often take the position
that such issues are matters for the Indigenous groups to resolve between
themselves
but then refuse to negotiate until these disputes have been
determined. This approach does not assist in the settlement of disputes;
it is
the nature and process of native title applications that creates – or at
least exacerbates – these disputes within
or between Indigenous
communities.
Framework agreements negotiated with representative bodies
should provide a clear mechanism for settling these internal disputes,
providing
a clear and workable definition for membership of the claimant group.
Anthropologists and lawyers often disagree as to
precise definitions, whether
the group is defined as part of a cultural block or as an estate group, whether
different groups hold
differing rights and interests, and whether individuals
can hold rights in more than one application. Without a framework agreement
on
this matter, individuals can never be completely clear whether they or their
family members form part of the applicant group.
An analogous example can be
found in Part 4A of the National Park and Wildlife Act 1974 (NSW),
which provides for joint management of national parks in that state. The
legislation has a clear process for defining who is an ‘Aboriginal
Owner’[11] and is thereby
entitled to participate in, and benefit from, the process. Although separate
from native title, there are practical
lessons to be learned from this
legislation: disputes arising out of this provision are relatively minor, even
over areas subject
to long-running native title disputes.
Reverse Onus
More broadly than the
amendments advocated by Chief Justice French, framework agreements ought to
expressly recognise that native
title exists throughout the land and waters of
the relevant state or territory, except where native title has been clearly
extinguished.
In this way, the onus would be on the state or territory to
confirm extinguishment. This concept is not new to native title law;
elements of
it can be seen in the future act provisions. That is, native title applicants
enter into negotiations for the authorisation
of future acts without first
having to establish that native title exists. Essentially, such provisions would
put the parties in
the negotiating position as if a positive native title
determination had already been made. This is the proper and appropriate basis
for negotiations to take place.
A framework agreement should complement
such an amendment by spelling out the different roles of the state, territories,
representative
bodies and applicants in determining the claimant group,
specifying the specific requirements with respect to all land and waters.
Further, either by legislative amendment or as a specific inclusion in a
framework agreement, the state ought to accept expressly
that the basic
connection material (and assumptions arising therefrom) will be used in
determining a claim for native title. So,
for example, once it is established
that the people within the claim group are directly related to the people who
occupied the the
land at first contact, a presumption would arise confirming the
existence of the necessary connection. This would relieve applicants
of the
great cost burden involved in preparing such material.
Consent
Determinations
Chief Justice French advocated for changes to native title
legislation to enable the Court to act upon agreed statements of fact for
consent determinations. This would also be important to achieving successful
settlement outcomes under framework agreements. The
terms should also be
included in the provisions of the framework agreement itself. Further, framework
agreements should clearly spell
out the flow-on effects of consent
determinations; these should be carefully considered as they will not always
present the best outcome for the
applicants. In the recent Arakwal series of
land use agreements,[12] for
instance, each parcel of land was carefully considered with respect to possible
future uses. The consent determinations in that
matter where that no native
title existed over the land that the traditional owners wished to use for
commercial development, housing
and camping grounds. This was on the basis that
native title had been surrendered to the state by the applicants. This
determination
enabled the applicants to receive unencumbered freehold estate in
the land and waters concerned.
Compensation
Considerations
Compensation considerations contribute to delays in the
settlement of native title applications. This is because state or territory
governments often seek as a term of settlement that the settled benefits
represent all the compensation available to the applicants in respect of
their traditional area, both now and into the
future.[13] However, unless the
state can provide all tenure documentation, sometimes back to original crown
grant, the applicants are faced
with uncertainty as to the nature and extent of
future compensation that they are thereby foregoing. A framework agreement might
resolve this indeterminacy by expressly providing that future compensation
applications will remain available to applicants but subject
to a set-off
provision in respect of any benefits included under current arrangements. This
would enable all parties proceed to settlement
without being delayed and
derailed by compensation
considerations.[14]
Conclusion
More promises by states and territories, or even further amendments to the
NTA, will not result in the wholesale resolution of outstanding native
title applications. What is needed is a concrete commitment from
all relevant
parties to reach agreement by negotiation. Such commitments can be provided by
states, territories and the Commonwealth
by entering into a series of
comprehensive framework agreements with peak stakeholder groups. Properly framed
and detailed agreements
will help to overcome some of the most frustrating
elements of the native title process, helping parties to reach agreement
according
to realistic expectations. They would provide instrumental pathways
towards consensus in a way that has not yet been achieved in
any Australian
jurisdiction.
Adam McLean is a barrister who has represented
traditional owners over many years and negotiated numerous agreements on behalf
of
traditional owners including the first Indigenous Land Use Agreement in
Australia which also secured part-ownership of a mining company
(Tumut Brungle
Area Agreement). He is currently advising the Bundjalung People of Byron Bay
(Arakwal) in their series of Indigenous
Land Use Agreements which have secured
co-management of national parks and freehold transfers. He has also represented
traditional
owners in many joint management agreements under Part 4A of the NSW
National Park and Wildlife Act.
[1] National Native Title Tribunal,
National Report: Native Title June (2008), 1.
[2]
Ibid.
[3] Ibid,
2.
[4] See Chief Justice Robert
French, ‘Lifting the Burden of Native Title: Some Modest Proposals for
Improvement’ (speech
delivered at Federal Court Users Group Adelaide, 9
July 2008),3.
[5] Native Title
Act 1993 (Cth), s 225.
[6]
National Native Title Tribunal, above n 1,
3.
[7] See for example Part 4A,
National Park and Wildlife Act 1974
(NSW).
[8] See NSW Aboriginal Land
Council, Annual Report 2007–2008 and Northern Land Council
Annual Report 2007-2008.
[9] In NSW this is also partly
a reason why native title applications are slow in resolution as the State
Government takes the view that
land grants under the Aboriginal Land Rights
Act preclude the need for vast settlements of native title matters.
[10] See Office of the Attorney
General, ‘Victoria Leads the Nation in Native Title Settlement’
(Press Release, Thursday 4
June
2009).
[11] Aboriginal Owner is
the term used in the National Park and Wildlife Act 1974 for traditional
owners who comply with the criteria used in the
legislation.
[12] Bundjalung ILUA
NIA2001/001 and NI2006/004.
[13]
This includes compensation for past act, intermediate period act and future act
extinguishment or
impairment.
[14] This was
successfully negotiated in the Bundjalung People of Byron Bay ILUA (no 2)
NI2006/004.