Contesting Native Title

John Southalan

Ritter Native_Title_36_1David Ritter; Allen & Unwin, 2009, 250pp,
$45.00

Contesting Native Title was the second of two books by David Ritter in 2009 about native title. The first book, The Native Title Market, was a short, incisive affair examining the politics of negotiations between Indigenous groups and companies. Contesting Native Title provides a far more detailed engagement with the whole native title system in Australia: its history, structure, the ‘actors’, and their performance. The book gives a political and social explanation of how native title developed and operates, rather than detailing its legal content and structure.

Ritter briefly backgrounds the events that led to the establishment of Australia’s native title system in 1993. But his focus is on what has happened since then, and he usefully categorises three phases of native title’s operation in Australia. The first phase, 1994 to 1998, he characterises as flux and uncertainty: the Native Title Act (‘NTA’) had commenced but its wording left many areas still to be resolved. The second phase, 1998 to 2002, he sees as definition, with court decisions providing increasing clarity of the rights and power in the system. Since 2002, we have been in the third stage, agreement-making and consensus, where greater clarification has seen more resolution of native title claims through mediation and agreement.

 

Ritter’s central argument is that the native title system could have better addressed Indigenous interests, but the decisions of courts and tribunals, and actions of companies and governments, have ignored and/or reduced that potential. Ritter explains that, by 2002, the scope for native title had been limited along with its potential to influence government and industry developments; and he sees this evolution as having been overlooked by many involved in native title. Ritter outlines how possibilities were impeded from the beginning because of the way in which the system was established:

The NTA casts the states and territories [ie. Governments] not as polities engaged in dealing with Indigenous societies, exercising broad political agency on a comprehensive range of matters, but as litigants contesting the existence of a property right (p 95).

The majority of the book focuses on six different groups or organisations involved in native title: Indigenous leadership/policy bodies, land councils, state governments, miners and farmers, the National Native Title Tribunal, and the Federal Court. Each of these is given a separate chapter in which Ritter explains their basic involvement in native title and then examines the political and other forces that they are subject to, and the influences that they exert, in the native title system. Ritter is often critical of these various entities (including the land councils, within which he worked for nearly a decade, so he knows the area well) but he also examines some of the dynamics and various competing interests that often exist within each.

Ritter argues that the current native title ‘balance’ is acceptable to business because Indigenous rights have been reduced, and that agreement-making is now entertained because it is on industry’s terms:

There could be no clearer indication that the terms of native title had become good enough for primary industry in general and big mining in particular than the fact that massive influence was not brought to bear on the Howard government to radically revisit the NTA when it had control of the Senate between 2004 and 2007 (p 175).

That is one possibility. An alternative possibility is that many in government, mining and primary industry have changed the way they consider and engage with Indigenous parties. Evidence supporting such an alternative includes: (1) agreements going beyond native title’s minimum requirements (Ritter mentions the Yorta Yorta agreement by the Victorian Government; another example is the Argyle Diamond Mine Agreement); and (2) the ‘veto powers’ in the Northern Territory land rights laws, which enable Indigenous people to reject mining proposals, were not reduced between 2004 and 2007 (the land rights laws were amended several times during these years, but the veto provision was not reduced). The ‘truth’ or at least ‘a (more likely) truth’ is that both influences are at play: what native title potentially protected for Indigenous interests in 1994 has been reduced; but also the motivations and attitudes of industry and government have progressed from the 1990s.

Ritter outlines a number of problems and deficiencies in how native title, and organisations which work within that field, have developed and currently operate. Ritter’s observations help identify and explain some of the injustices that still remain. He provides an important retort to the managerialism and public relations rhetoric that has found its way into most public and non-profit organisations. The book details some of the bizarre reasoning in the ‘output reporting’ and ‘performance indicators’ published by land councils, the National Native Title Tribunal and the Federal Court. While Ritter’s criticism of this public relations and reporting highlights various deficiencies, much of the reporting is obligatory under statutory and funding requirements that are part of ‘new public management’ changes to government administration. Ritter’s critique is, perhaps, more appropriately directed at new public management rather than at organisations which may have limited discretion in the format of their public reporting.

Ritter makes a number of criticisms of the National Native Title Tribunal, some of which seem unjustified. Undoubtedly, the Tribunal, like all entities involved in native title, has areas where it could improve. However, Ritter’s analysis overlooks some matters and therefore provides an incomplete picture. There are several aspects to this. Ritter describes various parties’ complaints of the Tribunal; with state governments seeing it as unnecessary to resolving claims, land councils considering it as overfunded, and industry bodies critical of its effectiveness (pp 138–9). Ritter notes a parliamentary inquiry into the Tribunal’s work as being ‘blandly complimentary’ (p 143). That is perhaps too brief an engagement with the Joint Parliamentary Committee’s inquiry into the Tribunal’s effectiveness. This inquiry ran for over a year and had public hearings around the country, receiving submissions from governments, Indigenous groups, companies, land councils, industry bodies, and academics. [Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Effectiveness of the National Native Title Tribunal: in fulfilment of the Committee’s duties pursuant to subparagraph 206(d) (i) of the Native Title Act 1993 (2003).]  The Committee’s 2003 report corroborates Ritter’s views in some areas but contrasts in other respects with the Committee’s findings presenting a different picture: ‘[I]n the 10 years since its establishment it [the Tribunal] has pursued its functions in a manner that has been fair, just and objective’ (Committee report, para [3.95]).

Ritter explains that the Tribunal, in its arbitration function, never ruled against the grant of a mining lease. [The situation has since changed with a Tribunal decision in May 2009: Holocene Pty Ltd [2009] NNTTA 49.]  The ‘arbitration’ function arises where negotiations between native title groups and developers and/or governments do not reach agreement: the Tribunal can be asked to rule whether the proposed development should proceed. Ritter argues that the Tribunal’s track record means that developers ‘negotiate’ knowing that if they have to go to the Tribunal they will get what they want in any event. Disappointingly, the book makes no reference to a comprehensive paper by the Tribunal’s Deputy President in 2007 [Chris Sumner, ‘Getting the most out of the future act process’. Paper presented to the 2007 Native Title Conference, Cairns, 7 June 2007],  which examines this argument in detail and many of the relevant cases decided by the Tribunal. Had Ritter engaged with the Tribunal’s 2007 paper, readers would better understand how the Tribunal is approaching cases, and the effect of this on negotiations. But, as the 2007 paper isn’t addressed, the reader is left uncertain as to what to make of Ritter’s claims here.

The Tribunal analysis aside, however, in Contesting Native Title Ritter has provided a comprehensive examination of native title. The book ranges widely and is comprehensively footnoted, so not only provides its own incisive analysis but will serve as a useful reference for others’ work and research.

JOHN SOUTHALAN is In-House Counsel with Yamatji Marlpa Aboriginal Corporation, honorary lecturer at the University of Dundee, and has been a contributing author to the quarterly publication Native Title Service since 2001.

[Disclosure note: the reviewer worked with the author in a land council in Australia’s north-west from 2000–2001; and is a part-time contributing author to a publication edited by the current President of the Tribunal. Neither of these connections has influenced the reviewer’s views.]

(2011) 36(1) AltLJ 74
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