Doing Native Title as
Self-Determination:
Issues From Native Title
Negotiations in South Australia
Parry
Agius (Aboriginal Legal Rights Movement, Adelaide)
Richie
Howitt (Dept of Human Geography, Macquarie University,
Sydney)
Sandra
Jarvis (Aboriginal Legal Rights Movement, Adelaide)
Rhiân
Williams (Mediation Consultant, Canberra)
Draft Paper to be presented to International Association
for the Study of Common Property Pacific Conference[1]
Brisbane, Queensland
September 2003
The evolving
Native Title system’s failure to deliver appropriate concrete outcomes to its
stakeholders (both Indigenous and non-Indigenous Australians) presents a
substantial challenge. Working at a statewide scale, South Australian claimants
and institutions have aimed to deliver a set outcomes that reflect a high level
of mutual recognition and commitment to self-determination. The South
Australian approach offers lessons that are more widely applicable to other
conflict situations and this paper explores those lessons.
Judicial
recognition of native title in the early-1990s placed Australia at a
crossroads. It offered a vantage point from which quite divergent futures and
very different relationships with various representations of the past seemed
possible. For the first time it seemed that the ‘monstrous injustice’ and
‘juridical denial’ (Langton 2001: 13) of dispossession might be redressed.
Pearson suggests the High Court used three relatively simple principles in
laying the foundations for the current native title system. In simplified
terms, he suggests, the principles can be expressed thus:
The whitefellas keep all that
is now theirs, the blackfellas get whatever is left over, and there is some
categories of land where there is coexistence and in the coexistence the Crown
title always prevails over the Native Title (Pearson 2002).
The processes by which
Australians choose to meet the opportunities and challenges of native title
will have lasting consequences. Yet the processes that currently dominate
native title have come under relatively little critical scrutiny. The Native
Title Act’s procedural demands specifically disadvantage the “high context
culture” (Hall 1990) characteristics of most native title claimant groups. For
example, rules of evidence, deadlines and the implicit authorization of
‘expert’ over ‘indigenous’ knowledge all reinforce the marginalisation of
indigenous participants from decision-making. In contrast, technical questions
about the substance, nature and limitations of native title have received
extensive critical and expert attention. Questions of self-determination and
justice for indigenous Australians seem to have been overwhelmed by technical
questions about the administration of the Native Title Act. Indeed,
Australia’s native title system rapidly developed as a domain for experts from
which many Aboriginal and Torres Strait Islander Australians are deeply
alienated. In choosing either to ignore or endorse this, Australians risk
wasting its “once-in-a-nation’s-lifetime opportunity to settle a question of
fundamental grievance” (Pearson 2002) and reproducing the alienation and
pauperisation of previous well-intentioned policy settings. This paper
reconsiders questions of process and argues for prioritisation of
self-determination as a fundamental principle in native title processes.
The emerging native title
system
It is not this paper’s aim to
review in detail the native title debates of the late-1990s. It is, however,
worth acknowledging that the ‘right to negotiate’ and ‘Indigenous Land Use
Agreement’ (ILUA) provisions of the Native Title Act encouraged a shift
towards negotiated settlement of land use conflicts around native title rights.
Yet, even agreement making in the native title system, has emerged as a domain
for experts presented and pursued as a precondition for indigenous
Australians achieving self-determination rather than constructed as an
opportunity for them to exercise this fundamental right. In many jurisdictions,
ILUA negotiations have become another mechanism that facilitates use of indigenous
lands in resource development. Expert consultants employed by representative
Aboriginal bodies do deals with experts from industry to deliver the benefits
that they decide should be delivered to indigenous people. The National Native
Title Tribunal’s approach to mediation reinforces the notion that process is
aimed at meeting the needs of the Act rather than ensuring that operation of
the Act meets the needs of the participants in the native title system.
In our view, this situation
risks usurping indigenous peoples’ right to self-determination and
self-governance. It risks reinforcing the paternalism of previous generations
of policy and practice in Australia and further entrenching the systemic
failure to recognize the contemporary persistence of the ancient jurisdictions
that give rise to native title. It also reflects a reduction of negotiations to
a resolution of substantive issues over which there is conflict which can be
resolved in the form of a ‘deal’ a set of trade-offs, a quid for a pro, a
project site for a royalty equivalent. This fails to acknowledge other
critically important issues involved in the negotiation relationship
emotional and procedural (Figure 1). People in any negotiation process have
these three interdependent needs, as shown in the diagram. Procedurally, people
need to believe that a process is fair that it gives them an opportunity to
have their say and that it is not biased or prejudiced in any way. Emotionally,
people need to feel OK about themselves and their participation in the
negotiation they need to feel listed to, acknowledged, respected and
validated. Substantive issues are the issues and things that are the subject of
negotiation. Dealing with just one or two sides of this “satisfaction triangle”
does not produce sustainable, just and equitable outcomes. In this paper, we
explore how practices which address all these issues with native title holders
themselves can open up different possibilities for them. We will illustrate our
argument with insights from innovative native title negotiations in South
Australia.
Substantive
Figure 1: The Satisfaction
Triangle (Based on the work of Chris Moore, CDR Associates, Boulder
Colorado USA)
What is fundamental?
Indigenous participation in
native title processes is fundamental to meeting the sorts of challenges that
Australia has been presented with through native title. It might seem
self-evident, to point to the importance of direct participation,
self-representation by self-authorizing indigenous peoples, and the basic right
to self-determination, but it is worth reminding ourselves that the native
title system is fundamentally an invention of whitefella law.
We should never forget that
native title is not a right created within the ancient jurisdictions of customary
law. Rather, it is those elements of customary law that the common law is able
to recognize and, subsequent to the passage of the Native Title Act, the
elements of customary law that non-indigenous parliaments, tribunals and courts
have decided can be accommodated in practice. It is, as Pearson (1997) pointed
out, the “recognition space” between customary law and the common law. The Act
has twice been the most amended piece of legislation to come before the
Australian Parliament (in 1993 and 1998). It established a native title system
that entrenches non-indigenous expert testimony and denies claimants’ right to
represent their own cultures as they decide it should be represented to the
wider world including the judicial structures of the nation-state. It
reinforces the denial of indigenous self-authorization and the transfer of
indigenous authority to representative bodies and authorised experts acceptable
to the whitefella courts and governments. Even where native title is
determined to exist (or co-exist), indigenous governance structures are
prescribed by the whitefella law in the form of ‘prescribed bodies corporate’
which the Act requires native title holders form as the only acceptable
structure to hold this fragile form of title. In this framework, indigenous
participation is largely conditional, depending on conformity with what the
whitefella law, parliaments and courts have imagined is appropriate and
authentic.
In the development literature
it has long been acknowledged that “authentic participation” is “indispensable
in the pursuit of equitable development and political democracy” (Goulet 1989).
Yet in the Australian experience, the parameters of native title negotiations
commonly seem to be set by experts before any participation by native title
holders or other indigenous groups affected by them or the projects being
negotiated. Substantive targets for the deal are often set according to
financial information or benchmark precedents before any consideration of (or
consultation about) the experience, concerns or aspirations of the indigenous
people who should be the principals of negotiations about their own rights and
futures. Despite the rhetoric of ‘recognition’ as a foundation in such
negotiations, it is often representative bodies rather than native title
holders that are being recognized and empowered. And it is often the case that
it is non-indigenous staff and consultants, empowered as experts, who are the
term-setters, deal-makers and deal-breakers not the native title holders themselves.
Grassroots indigenous criticism
of the emerging native title system is fairly consistent and recognisable. It
often refers to the failure to deliver land, services, self-determination,
reconciliation or even recognition in many settings. It is couched in terms of
disappointment, frustration and anger. These emotional responses arise from
unfulfilled expectations such as the idea that native title might allow people
who had been dispossessed to possess; people who had been homeless to be
housed; people who had been denied to be recognized, people who had been
removed to be returned. Amazingly, in many circumstances, such simple
expectations have been derided as being outside the principles of the High
Court’s recognition of native title or the parliaments’ codification of it in
the Native Title Act and supplementary legislation from the states and
territories. What the Act (or the Federal Court) says native title is has
become much more significant even in many voluntary negotiations and
agreement making than what particular native title holders think they hold
under the terms of their own customary laws. Even the debates about ‘certainty’
and ‘workability’ generally failed to consider those ideas in terms of
Aboriginal perspectives and have been largely Eurocentric.
But in any negotiation, the
ethics of respect the principles of mutual recognition and acknowledgement
are always the “foundational, ethical challenge” (Cohen 2002: 115). In
cross-cultural negotiations, the reduction of the terms of negotiation to a
common expertise risks reimposing, under the guise of neutrality and
even-handedness, the understandings of the dominant culture as the only
possible terms of negotiated engagement (see eg Kahane 2003). If it is only the
Native Title Act that is authorized to provide the terms of engagement,
then the playing field is already capitulated to the whitefella law and the
lived experience the emotional, procedural and substantive issues arising
within indigenous lives is once again marginalized.
Clearly, even though the native
title system is barely a decade old, something needs to change drastically if
the playing field is to be reconstructed as a truly inter-cultural domain,
rather than constructed by non-indigenous institutions as a ‘neutral’ space
that, in effect, reflects the house of cards and mirrors the dominant culture
constructs around itself.
The importance of process
In our view, the critical issue
here is process good process is one of the key outcomes, and the
critical means to achieving just and sustainable outcomes on substantive,
emotional and procedural dimensions. This is discussed in terms of the
specifics of the South Australian experience below, but some more general
comments are appropriate to introduce the issues. In many settings,
pre-ordained processes proscribe the terms of indigenous participation. The
terms of inter-cultural engagement are pre-empted by the structural and
cultural privilege accorded to non-indigenous institutional forms and
procedures. Indigenous peoples must conform to duly authorized criteria
approved by the dominant culture to register a potential native title interest.[2]
Rules of evidence require indigenous testimony to conform to criteria that many
indigenous groups find offensive and trivialising. Timeframes are set to accord
with non-indigenous priorities negotiation periods are defined by development
timeframes, and judicial deliberations by the courts themselves. If indigenous
people need time to discuss, consult, debate, decide, the Act prescribes
specific timeframes for their internal processes. And in case management,
critically important political decisions about how to represent indigenous
culture to the courts are often made not by indigenous people in their own
governance structures in accord with customary law and The Dreaming, but by
their legal representatives in accordance with what they judge is likely to
succeed in winning the ‘case’.
This turns the process of
self-determination completely on its head. It creates process in which legal
representation risks being reconfigured as some form of power of attorney
rather than a trust relationship involving the execution of an autonomous
client’s instructions. The highly political questions about how a people wish
to represent their culture to the world how they might explain themselves,
how they might govern themselves are reconfigured as technical questions to
be answered authoritatively by technical experts. The crucial independence of
indigenous peoples’ political leadership, an independence which is fundamental
to the exercise of self-determination as peoples, is thwarted as the indigenous
sector’s equivalent to the public service (which is, of course, ironically,
often employed on public service conditions funded by the public purse in
institutions that operate under whitefella legislation but are labelled
‘Aboriginal’) treats indigenous politics as incapable of producing coherent
responses to the (wait for it) --- the needs of the native title system!
Here we see the spectacular deception
of the native title system. In the guise of recognising some subset of
indigenous rights, the normal operation of the system denies the right of
indigenous people to do anything but conform to the highly circumscribed role
set out for them. Failure to conform, or inability to demonstrate conformity at
a sufficient level, results in authoritative rejection of a peoples’ claim by
the courts. Legal representatives are required to exercise a duty of care that
all too often couched in terms defined by the western legal system in a way
that all too easily removes indigenous peoples’ claims from an overtly
political domain, in which indigenous institutions are empowered, to a
technical domain, in which in which various authorized experts, particularly
lawyers, hold the power.
There is an urgent need to reconsider practices within
the native title system that reconstruct non-indigenous privilege and undermine
indigenous self-determination. In considering agreement-making and ILUA
negotiations, for example, the principle of self-determination, what might be
called accountability to The Dreaming, must be made paramount. In doing this, a
critical engagement with questions of process is crucial. Such processes must
become a domain in which indigenous peoples exercise self-determination, rather
than domains in which non-indigenous experts establish the pre-conditions for
some future opportunity for indigenous self-determination.
Good intention is absolutely
insufficient in this system. Good process is indispensable.
A brief account of statewide
negotiations in South Australia[3]
A statewide process to address native title claims in
South Australia commenced in 1999. The South Australian Native Title
Representative Body, the Aboriginal Legal Rights Movement (ALRM), drew on both
legal and human services insights in developing its response to a state
government proposal to explore prospects for a negotiated settlement of issues.
One of the attributes of ALRM’s approach has been that ‘experts’ have not been
given primacy in setting the agenda. Rather ALRM’s process has delivered
information, challenge and expertise into a largely Aboriginal political debate
about how people should best act to secure their rights and interests. And
Aboriginal interests have largely represented themselves (and have also been
accepted by political, industry and community groups as appropriately
representing themselves) in most of the political discussions generated by the
process.
The South Australian process
assumes that informed political judgement about how their society is
represented to the wider world through claims, negotiations and other
activities, and about the balance between litigation, legislation and
negotiation in pursuing settlement of native title issues, is the political and
moral responsibility of native title claimants themselves, not of their
advisers. Agius et al (2003: 3-4) provide a useful summary of the ten core
principles underpinning this process:
1.
Native Title is about
people, not legal technicalities:
agreement-building must be about relationships between people and cannot be
reduced to a legal definition.
2.
The standing of the
Aboriginal claimants as the principals in the negotiations: Native Title rights are real property rights that
make Aboriginal people a real part of South Australia.
3.
Non-extinguishment: agreement-building should not require
extinguishment of Native Title.
4.
Self-determination: agreement-building should be an exercise of
self-determination not a precondition for it.
5.
Fairness: agreement-building should be fair all
participating groups should be better off, and none should be worse off because
of an agreement, including not only Native Title interests, but also other
Aboriginal groups and non-Aboriginal interests.
6.
Inter-generational
equity: agreements should recognise
the principle of inter-generational equity, because they are likely to set
important aspects of the conditions facing Aboriginal people for several
generations they should not short term deals.
7.
Sustainability: negotiated outcomes should be sustainable for the
Aboriginal principals, including the transfer of skills and knowledge that
makes the capacities developed within the Aboriginal domains sustainable into
future generations.
8.
Meaningful benefits: negotiated outcomes should be meaningful to the
Aboriginal principals - agreement-building is only worthwhile if the Aboriginal
principals judge that it will produce outcomes they want.
9.
Benchmarks: to be worthwhile, outcomes should not only be
better than exist now, but should also be better than can be achieved through
other means (eg litigation or legislation) and reasonable against appropriate
benchmarks (eg in comparable international settings). Appropriate benchmarks
should be reviewed over time and opportunities to improve benchmarks should be
taken from time to time.
10.
An act of
choice, not the only choice: agreement-building
should not lock Aboriginal people into an ‘all-or-nothing’ situation, where
they rely on complete settlement to achieve any gains at all - Aboriginal
people should continue to negotiate only if they judge it to be producing
worthwhile outcomes.
While the drafting of any final
settlement remains a long way off, the process was designed to deliver
meaningful outcomes along the way rather than locking claimants into waiting for
an all-or-nothing settlement solution. The State Government agreed to deal with
registered claimants as if they were native title holders, and other
stakeholders in the South Australian process have accepted this innovative
approach.[4]
To date the South Australian process has delivered significant procedural,
emotional and substantive outcomes (Agius et al 2003), including:
· High
levels of community and stakeholder participation in relationship-building and
cross-cultural recognition;
· Establishment
of the Congress of South Australian Native Title Management Committees
(Congress)[5]
as a recognised peak body on native title issues in the state;
· Development
of Native Title Management Committees’ (NTMC) capacity to make decisions for
themselves, to choose whether or not to be involved in negotiations proposed by
the state, to set strategic direction and priorities in the process, and to
participate directly in decision-making and deliberations about native title
and Indigenous rights;
· Significant
increases in the capacity of NTMCs and the Congress to drive and manage complex
negotiations;
· Reduced
anger, frustration and time delays for native title interests and other parties
in Native Title processes;
· Withdrawal
of a Government argument that native ttle was historically extinguished across
the state in 1836;
· Substantial
amendment of the Confirmation and Validation Bill before it was
presented to the South Australian Parliament in December 2000;
· Aboriginal
representation on the State Government’s Ministerial Advisory Board;
· Several
Pilot Projects involving negotiations between NTMCs and development interests,
which have produced Memoranda of Understanding and ILUAs with support from the
Congress;
· On-going
multi-stakeholder working parties actively reviewing a range of issues,
including Aboriginal heritage management, National Parks and land access; and
· Continuing
engagement from native title claimants, the State Government (including both
Liberal and Labor majority governments), the South Australian Farmers Federation
(SAFF) and the South Australian Chamber of Mines and Energy (SACOME), South
Australian Fishing Industry Council (SAFIC) and Seafood Council of Australia,
and South Australian Local Government Association (SALGA) on issues of policy
and process.
These outcomes are significant
and have produced high levels of Aboriginal, industry, community and Government
confidence in a process that targets a transformative approach to the politics
of native title. Rather than doing deals or even the more generous notion of
‘doing business’, the South Australian experience has really prioritised doing
self-determination. The process less about
making a deal than shifting the relationship between Aboriginal and
non-Aboriginal people and effectively rebuilding the State with recognition of
native title and Aboriginal rights built-in.
What is possible?
In many ways, non-indigenous
Australians have assumed that the question ‘What is possible?’ can be answered
appropriately in terms that they or at least ‘their’ representatives
define. Most native title processes have left this assumption unquestioned.
Indeed, in privileging whitefella law as the authoritative source of the
answers to this question by defining it as a technical legal question in the
first place, the native title system has reinvented a new form of terra
nullius in which the ancient jurisdictions of customary law are reduced to
ghosts of a lost past and held accountable and subsidiary to an authoritative
whitefella law. This has contributed to a political climate in which official
refusal to acknowledge self-determination as a fundamental right of indigenous
Australians is possible.[6]
It also makes it possible to institutionalise practices and processes that
reinforce and reproduce a ‘monstrous injustice’ as the foundation of Australian
society. The idea that it is appropriate for whitefella law, rather than The
Dreaming, to be the source of authority in native title processes, or that
whitefella institutions, rather than indigenous institutions should be decisive
in shaping the future place of indigenous peoples in Australian social,
cultural and political life, is rarely challenged. Such ideas are both deeply
entrenched and ‘deeply colonising’ (Rose 1999) assumptions that limit the
vision of those who leave it unquestioned and proscribe the vision of those who
dare to question them.
The recent South Australian
experience of developing processes that might facilitate a just and sustainable
resolution of native title issues at the scale of the whole state has explored
very different sorts of processes in order to open up very different sorts of
social, political and administrative possibilities. Agius et al (2001)
identified a range of issues including administrative, legislative and
constitutional change as possibilities for the South Australian negotiations.
It is clear that the scope of the negotiations in South Australia have not, and
will not be unilaterally established by non-indigenous institutions of
government and industry. The process requires both institution building, or
perhaps more accurately what Cornell and Katz (2002) refer to as ‘nation
building’, within Aboriginal domains, and relationship building between
Aboriginal and non-Aboriginal domains. Rather than reducing native title
holders to what was graphically described as “fighting over the scraps of what was once a wholistic indigenous
landscape” (Bauman 2001: 202), the South Australian process has
sought to create processes in which the integrity of cultural landscapes can
(and ultimately must) be rewoven into the contemporary social fabric.
Rather than taking what well-meaning government or industry groups have
offered, ALRM’s approach has gone back to the questions of what is at stake,
and taken the Aboriginal stake seriously. It has operated with accountability
to the ancient jurisdictions as well as conformity to the legal demands of the
Act. But, perhaps most significantly, it has consistently argued that the law
should not be mistaken for a straightjacket that disadvantages Aboriginal
people negotiating about their rights and identities, but as a starting point
for deliberate and conscious negotiation of new relationships which can then be
codified as appropriate.
Doing Self-determination
The challenge of
self-determination is not relevant only in indigenous settings. Participatory
processes that ensure that inter-cultural negotiations facilitate direct
participation by the parties involved are fundamental to questions of justice
and fairness. An inclusive social fabric cannot be woven from threads that are
excluded from the pattern maker’s vision. Whether it is displaced dairy
farmers, restructured sugar growers, dispossessed indigenous people,
undocumented asylum seekers, or some other marginalised ‘other’ of the
Australian mainstream, processes which offer emotional and procedural
resolution as well as addressing substantive issues of concern are fundamental
to securing sustainable social relations and a sustainable and just place in
the world. The broader lesson of the South Australian native title negotiation
process is that even in politically hostile circumstances, abdicating the
fundamental principles of good process is bad practice. While the ultimate goal
of a signed, sealed and delivered comprehensive settlement agreement is some
way off, the fact that native title holders have succeeded in achieving the
levels of recognition and relationship-building that they have has changed the
cultural landscape of the state and with it, the possibilities for innovative
and inclusive solutions to the historic challenges native title has presented
to all Australians.
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