Representative Bodies
Current Difficulties
6.1 Some native title claimants have experienced difficulties as a consequence
of there being multiple Indigenous parties to various claims. Gurubana,
for example, are a clan of the Gungandji; the Gurubana claim (QC94/8)
has involved the Gungandji as a party, and the matter has been complicated
by the need for agreement between the parties. [1]
6.2 The difficulties confronting mediation where multiple Indigenous
parties are involved are compounded in circumstances where there are multiple
claimants to the same area of land. The Committee has been advised that
it would be preferable for the resolution of these difficulties to be
pursued with the Tribunal, rather than by the relevant representative
body:
I think that should be someone independent of the land councils.
It should be done in a way which is through the tribunal, in the acceptance
of the claim in the tribunal in terms of vetting that it is a prima
facie case. I think that is the way to do it. It seems to me that with
the representative bodies, particularly with a small group such as my
clients where the three of them are not any good at wheeling and dealing
in politics, there is a danger that people like that will simply get
swamped in the kind of politics of things with the representative bodies.
I would be concerned about the representative bodies being the ones
that make that determination. I think there are many cases where they
can help by mediating, but I do not think they should have a capacity
to make a decision on who is the proper claimant, as it were. [2]
6.3 It is alleged to be undesirable for the present situation to persist
where representative bodies have a function pursuant to s.202(4)(6) of
assisting the resolution of disagreements amongst claimants, yet can also
become parties to mediations:
As you will note, there are a number of issues that can highlight
the extent of the conflict of interest that has occurred in relation
to our claim. You have people on the representative body - that is FAIRA
- who also have applied to be parties to the claim. They have members
on their own board who are also applying to be parties to this claim.
I therefore fail to see how they can possibly be at all objective in
any way at mediating this claim. [3]
Should a representative body wish to become a party to a mediation or
represent a claimant pursuant to s.202(4)(c), it remains capable also
of assisting in the resolution of disagreements amongst claimants about
the making of claims. At present, in supporting one claimant against another,
a representative body can:
- play a role in assisting the preparation of one claim but not another:
s.202(4)(a);
- decide to fund one claim but not another: s.202(4)(a);
- represent the funded party: s.202(4)(c); and
- become a party to the mediation in which it is also representing one
claimant: s.68(2).
[Table of Contents]
The Regulatory Framework
6.4 Under s.202(1) of the Native Title Act, Aboriginal and Torres Strait
Islander bodies can be designated as representative organisations to assist
native title claimants in making applications and also to provide assistance
in native title negotiations and proceedings. Section 202(2) provides
that the Commonwealth Minister may determine more than one representative
body for any area.
6.5 Section 202(4) outlines the functions of representative bodies as
follows:
- researching and preparation of claims;
- resolution of disagreements among claimants; and
- representing claimants in negotiations.
And under s.203(1) of the Act such organisations may also be eligible
for legal or financial assistance from the Commonwealth Minister or ATSIC.
6.6 A review of representative bodies was completed for the ATSIC Board
of Commissioners on 30 August 1995. The first Outline document (p.28)
noted that the review expressed its concern that the current regulatory
framework for representative bodies was inadequate and stated in its final
recommendation:
[T]he desirability of establishing NTRBs [representative bodies]
within a statutory framework should be considered soon. Such a framework
would prove cost-effective and would provide institutional stability,
transparency and accountability that will facilitate the efficient operations
of the NTA.
The Outline document (p.28) responded to this recommendation:
The Government proposes to amend the NTA to establish an enhanced
statutory framework for representative bodies to improve their accountability
and performance. The proposed amendments recognise the importance of
effective representative bodies to the smooth operation of the NTA,
particularly the future act processes, by providing an efficient, coordinated
and expert service to native title holders and claimants in their dealings
with the NNTT and the Federal Court, government and industry.
6.7 The Government's intention to improve the accountability and performance
of representative bodies by an enhanced statutory framework under the
Act has attracted comment from the Gurang Land Council, itself a representative
body:
Both federal and state governments should make laws recognising
the roles, responsibilities and functions of representative bodies.
[4]
6.8 The second Outline document and Exposure Draft (parts 6A and 6B)
present the proposed amendments relating to representative bodies. The
Outline document (p.8) advises that the proposals are envisaged:
- as a key link in overcoming overlapping and under-prepared native
title claims; and
- they are also intended to improve the quality of service provided
to Indigenous people by representative bodies and their accountability
to their Indigenous clients.
6.9 In regard to the first objective, the third chapter of this report
made reference to the seven conditions that the Native Title Registrar
must consider before registering an application under the amendment proposals;
the seventh condition is that the claim be certified by a representative
body. The second Outline document (p.11) advises:
A representative body will also be obliged to act in a way that
promotes an orderly, efficient and cost-effective process for the making
of native title applications. It must make all reasonable efforts to
combine applications over the same area into a single application.
To further streamline processes, adjoining representative bodies may
enter into written arrangements for the handling of matters which overlap
representative body boundaries. In order to deal with potential conflict
of interest situations, where a representative body is dealing with
more than one native title application or other matter over the same
area, it must only do so with the consent of the relevant native title
parties, and may 'brief out' the provision of assistance to one
or all parties. A representative body will be required to assist
in the resolution of disputes among persons who it is assisting
or may assist. This will help achieve a more orderly claims process,
including the amalgamation of claims.
These proposals are strongly endorsed: they should deliver benefits for
native title claimants and the resource developers with whom they interact.
6.10 The Committee has heard evidence in regard to the second objective
of the amendment proposals concerning representative bodies: accountability
to Indigenous people. For example the Iina Torres Strait Islanders Corporation
stated that the Torres Strait Regional Authority (TSRA) did not operate
as a proper representative of their interests:
The TSRA is a representative body of the Torres Strait Islanders
in name only. Mainland Torres Strait Islanders are not represented by
TSRA and, in too many instances, are ignored by that body. For example,
many mainland Islanders are land-holders in the Torres Strait. They
have family in the Torres Strait and they are all, without exception,
committed to their homeland. These facts are frequently disregarded
by a so-called representative body which often insults mainland Torres
Strait Islanders by purporting to speak on behalf of all Torres Strait
Islanders. Seventy-five per cent of Torres Strait Islanders live on
mainland Australia. In most cases, they have nothing to do with the
TSRA, but this is by no means to say that they have nothing to do with
the Torres Strait. [5]
The Corporation complained that the Torres Strait community living on
the mainland were in danger of losing their rights to native title because
of a number of questionable decisions made by the TSRA. [6]
And a solicitor for the Gubbi Gubbi Land Council stated:
In relation to the Torres Strait situation, 63 land and sea claims
have been put to the Native Title Tribunal. That covers the central
and eastern islands, which is 11 major island groupings. It covers the
traditional owners up there. They were quite concerned that action was
only being taken in relation to one island and that no information whatsoever
was being given to any other island as to what was going on. It is quite
clear from my travels up there that each island considers itself sovereign.
In relation to their commercial and fishing interests, they have to
sort those problems out before any form of regional agreement can be
obtained. There seems to be a push up there for the TSRA, certainly
the executive up there, to simply impose decisions on the traditional
owners. There is a great concern that it simply will not work. [7]
6.11 Similarly, evidence has been provided that native title holders
have become signatories to claims without understanding native title or
the consequences of lodging a claim. Mr Ben Ward, Chairman of Waringarri
Aboriginal Corporation advised:
People do not understand what native title is. Especially the
elders - they are saying that people are saying to them: here is your
right to say; you have got the power to say it is; you have got native
title over this; you have got the power to say this. They are not listening
to what Aboriginal people want. [8]
And Mr Jock Mosquito, Vice Chair of Balangarri Resource Centre was asked
whether he had experience of Aboriginal people signing an application
without being sure about it. He replied:
Further, Mrs Delma Barton of the Kalkadoon Tribal Council confirmed:
We do not raise objections to rep bodies. We support status bodies,
but we want one that is there at the mandate of the people. We emphasise
that we will only support a representative status body established constitutionally
with legal validity in a statutory legislative process similar to that
of the Central Land Council system, whereas consultation in the negotiation
process cannot be accepted without informed consent of the traditional
owners and custodians.
Furthermore, we insist upon administrative justification. We
also place a strong emphasis on the protection of cultural heritage
rights. The rights of intellectual copyright must be adhered to at all
times. There must be equal representation of all tribal groups, and
recognition and acknowledgement of elders, traditional owners and custodians
with respect to cultural rights. Up to the current time, this has not
been happening because the rights of elders have been violated. [10]
6.12 The Exposure Draft proposals address this kind of difficulty. In
recognising a representative body pursuant to s.203AC(1) (Exposure Draft
p.39) the Minister must be satisfied that:
(a) the body will satisfactorily represent the Aboriginal peoples
or Torres Strait Islanders living in the area; and
(b) the body will satisfactorily take account of the interests
of persons who hold or may hold native title in the area; and
(c) if the body is already a representative body - the body satisfactorily
performs its existing functions; and
(d) the body would be able to perform satisfactorily the functions
of a representative body under Division 3 and to comply with the obligations
of a representative body under Divisions 4 and 5.
The Exposure Draft Explanatory Memorandum (p.58) notes that these criteria
are a more stringent test for recognition than under s.202(4) of the present
Act.
6.13 Importantly, the Exposure Draft (s.203AG, p.46) provides that the
Minister may withdraw the recognition of a body as a representative body
if that body:
(a) is not satisfactorily representing the Aboriginal peoples
or the Torres Strait Islanders in the area; or
(b) is not satisfactorily taking account of the interests of
persons who hold or may hold native title in the area; or
(c) is not satisfactorily performing its functions under Division
3 or not complying with its obligations under Divisions 4 and 5.
6.14 Further, flexibility is to remain in the new representative body
regime with regard to the range of assistance available to native title
claimants:
Representative bodies will not have a monopoly role. They can
only perform their facilitation and assistance functions if requested
to do so by the persons requiring the assistance, and indigenous persons
will be able to seek other assistance in relation to native title matters
should they so wish. [11]
This relates to the proposed s.203BB(2):
A representative body must not perform its facilitation and assistance
functions in relation to a particular matter unless it is requested
to do so.
[Table of Contents]
Resource Allocation
6.15 At 31 August 1995 there were twenty-one representative bodies based
in all States and Territories except Tasmania and the Australian Capital
Territory. Currently some twenty-five have been determined by the Minister.
In his first half-yearly report, the Aboriginal and Torres Strait Islander
Social Justice Commissioner, Mr Michael Dodson, identified inadequate
funding as a major problem for representative bodies which was hampering
their capacity to discharge their functions effectively. [12] Marked variations in the funds spent by
some representative bodies on native title claims and native title administration
in relation to the number of claims lodged have emerged. In the Northern
Territory, for instance, with no significant disparity between the number
of native title claims dealt with by the Northern Land Council (NLC) and
the Central Land Council (CLC) in the period 1993-94, the NLC spent $615,000
on native title claims and $300,000 on native title administration, while
the CLC's expenditure on claims was $67,000 and on administration $180,000.
[13]
6.16 This kind of discrepancy is accompanied by a disturbing inability
on the part of some representative bodies to provide advice about the
amount of funding received from ATSIC for native title matters. At a public
hearing in August 1996 the Western Australian Aboriginal Legal Service
was unable to advise the figure for its native title funding through ATSIC.
[14]
6.17 The ATSIC Chairperson has confirmed [15] that, while ATSIC funding was cut by $470
million over four years in the 1996/97 Budget, there has been no reduction
in funding for the native title program. The question whether enough funding
is being provided can only be addressed by querying the use to which current
funding is being put. The ATSIC review advised that, in regard to negotiations
prior to any determination of native title, a number of representative
bodies are actively facilitating such negotiations with State Governments
and resource developers:
These negotiations, highly beneficial to both government and
to potential native title holders, are occurring without any native
title claim being submitted to the NNTT...A number of NTRBs are playing
a crucial role in facilitating similar negotiations, both by identifying
and supporting native title claimants, and through representing their
interests in sometimes complex and lengthy negotiations prior to any
determination of native title. [16]
6.18 One clear difficulty confronting representative bodies is the making
of judgements about the allocation of resources in such negotiations.
The proposed Division 3 of Part 11 of the Act (Exposure Draft, pp.48 to
54) stipulates the functions of representative bodies. The first is to
research and prepare native title applications, and to facilitate research
into, preparation of and making of native title applications. The second
is to assist native title bodies corporate and native title holders in
a range of matters under s.203BB(1)(b). Where there has been no application
submitted for a claim, or where native title may not be an issue in an
agreement, representative bodies will need to be cautious about allocating
scarce resources to negotiations. It would be more appropriate to allocate
limited resources to the preparation of claims for native title or compensation.
This is confirmed by the fact that s.203BB(1)(b)(iii) would provide representative
bodies with the function of assisting native title holders in negotiations
and proceedings relating to the doing of acts affecting native title.
6.19 The proposed amendments concerning land use agreements are consistent
with this view. Item 114F at page 34 of the Exposure Draft adds at the
end of s.202 [17]:
Certification of applications for registration of indigenous
land use agreements
(8) A representative body must not certify under paragraph (4)(e)
an application for registration of an indigenous land use agreement
unless it is of the opinion that:
(a) all reasonable efforts have been made to ensure that all
persons who hold or may hold native title in relation to land or waters
in the area covered by the agreement have been identified; and
(b) the agreement is made with the authority of all of the persons
so identified.
However, the body need not require that the application name
the persons referred to in paragraph (a) or specify how many they are.
Note: Section 251B states what it means for an agreement to be
made with the authority of others.
Statement to be included in certifications of applications
for registration of indigenous land use agreements
(9) A certification of an application for registration of an
indigenous land use agreement by a representative body must:
(a) include a statement to the effect that the representative
body is of the opinion that the requirements of paragraphs (8)(a)
and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion.
That is, certification of an ILUA by a representative body is certification
concerning native title.
6.20 The need for representative bodies to concentrate on native title
by way of determinations, compensation or future acts would be confirmed
by the adoption of the proposed s.183(4A). That subsection provides that
the Attorney-General cannot authorise the provision of assistance to a
person claiming to hold native title. Such assistance would be limited
to that available through representative bodies pursuant to s.203CB, CC
and CD or, upon review, pursuant to s.203G.
Further Claimant Support
6.21 The Exposure Draft Explanatory Memorandum provides (p.64) that native
title claimants can seek assistance other than through representative
bodies. For this to be effective, resources must be available for that
purpose.
6.22 The Committee was given the advice of a solicitor who stated:
I think from the two parties here today that it is clear that
the power of the representative bodies increased and that there has
got to be the loophole, or the freedom, to apply to Attorney-General's
for funding. [18]
FAIRA, which is the representative body criticised in this instance,
is in general support of this view:
FAIRA believe that the proposal to preclude claimants from initiating
claims in the NNTT, without representative body approval is racially
discriminatory. Article 5 of the Convention on the Elimination of all
Forms of Racial Discrimination (CERD) guarantees Indigenous Peoples
the right to equal treatment before tribunals and to equality before
the law in the enjoyment of their right to own property.
Father Frank Brennan also commented broadly on this issue:
One is, in terms of representative bodies, I have sympathy with
what a lot of the key Aboriginal organisations have said: that they
ought to be one-stop shops. I have sympathy with industry who say, 'We
would like to be able to come to a one-stop shop.' But I think it has
to be a one-stop shop with a difference. It has to be a one-stop shop
with a side door or something like that... [19]
6.23 It is clear that for the new regime of representative body certification
of native title applications [20]
to be effective, claimants should be able to approach their representative
bodies with confidence. The proposed accountability measures [21]
should contribute over time to the development of sound relations between
representative bodies and claimants.
6.24 Notably, a claimant unable to secure assistance through the relevant
representative body may apply to the Commonwealth Minister for a review
of the decision pursuant to s.203G(1). Where the Minister is satisfied
that assistance should be provided, the Minister would direct ATSIC to
do so pursuant to s.203G(6)(b).
6.25 While it is appropriate for ATSIC to be the authority providing
assistance in such circumstances, it is less clear that ATSIC should be
able to conduct the review of the representative body's original decision
pursuant to s.203(2)(a) [22]. Applicants denied assistance by their
representative bodies may not be confident of the objectivity of an ATSIC
review. For this reason reference to ATSIC at s.203G(2), (3), (4) and
(5) should be omitted.
Recommendation 11
| That the proposed s.203G(2) be amended as follows:
omit '(a) ATSIC; or (b) another' and substitute 'a natural'.
That the proposed s.203G(3) be amended as follows: omit 'ATSIC
or the other'.
That the proposed s.203G(4) be amended as follows: omit 'ATSIC
or the other'.
That the proposed s.203G(5) be amended as follows: line one - omit
'ATSIC or the other'; line five omit 'if the review is not to be
conducted by ATSIC'.
|
Senator Eric Abetz
Chair
[Table of Contents]
Footnotes
[1] Evidence, p.1607.
[2] Evidence, p.1609.
[3] Evidence, p.1663.
[4] Evidence, p.1730.
[5] Evidence, p.1661.
[6] Evidence, p.1660.
[7] Evidence, p.1664.
[8] Evidence, p.2093.
[9] Evidence, p.2104.
[10] Evidence, p.2520.
[11] Exposure Draft Explanatory Memorandum,
p.64.
[12] Native Title Report January-June 1994,
p.27.
[13] Evidence, pp. 993-994, 1004-1007, 1030-1033,
1184-1185 and p.1212.
[14] Evidence, p.2431, 2432.
[15] Letter to Committee Secretary dated 13
September 1996.
[16] Review of Native Title Representative
Bodies, p.11.
[17] This would be replaced by s.203 BE(5)
(Item 114ZD) after a 12 month transition period.
[18] Evidence, p.1667.
[19] Evidence, p.2025.
[20] s.190A(10c).
[21] s.203 AC (1).
[22] Or, after the transitional period, s.203
BB
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