Native Title Report 2001: Chapter Two: Resourcing Equality

Native Title Report 2001

Chapter Two: Resourcing Equality

Introduction

Distribution
of Funding within the Native Title System

Budget Allocation

Representative
bodies

The Federal
Court

The National
Native Title Tribunal

Failure to
fund the representative bodies consistently with their statutory responsibilities

Report to the
Government of Western Australia of Review of the Native Title

Claim Process in Western Australia

Report of the
Parliamentary Joint Committee on Native Title

The Parker Report

Love Rashid
Report

Funding fails
to recognise critical factors

The
cost of the amendments to the NTA.

Increasing future
act notifications

Increased demands
of the registration test

Increased accountability
requirements

Re-recognition
of representative bodies

The
interrelationship of the component parts of the native title process.

Representative
bodies facilitate the interaction of two different systems of law.

Benchmarks

Introduction

The recognition and
protection of native title and the participation of Indigenous people
in decisions affecting their land are critical priorities within a human
rights framework. These principles arise out of the international law
concepts of equality, effective participation and the protection of minority
cultures contained in various human rights treaties to which Australia
is a signatory, including the International Convention on the Elimination
of All Forms of Racial Discrimination (the 'ICERD') and the International
Covenants on Economic, Social and Cultural Rights (the 'ICESCR') and on
Civil and Political Rights (the 'ICCPR'). These principles are discussed
more fully in chapters one and three.

The level of protection
extended to native title and the degree to which Indigenous people participate
in the native title process is, to a large extent, determined by the interaction
of those administrative and governmental institutions that make up the
native title system. These include: the Aboriginal and Torres Strait Islander
Commission ('ATSIC'); native title representative bodies ('NTRB's or 'representative
bodies'); the National Native Title Tribunal ('NNTT'); the Federal Court;
State and Commonwealth government departments; local councils as well
as private industry.

The allocation of
funds by the Commonwealth government to institutions participating in
the native title system has a direct impact on the level of protection
extended to native title. From a human rights perspective, it is essential
that the organizations whose function is to ensure the recognition and
protection of native title and the participation of native title parties
in economic development of their land are properly funded.

The allocation of
funds in the Federal budgetary process has not apportioned sufficient
funds to the representative bodies responsible for carrying out these
functions. The inadequate funding of representative bodies relative to
their statutory functions has had the cumulative effect of undermining
their capacity to adequately promote and protect Indigenous interests
in the native title process.

In addition, the
distribution of funding between the institutions within the native title
system is inequitable. In the 2001-2002 Federal budget, institutions whose
primary function is not the substantive protection of native title, but
rather the management of applications and agreements under the Native
Title Act 1993 (Cth) ('NTA'), have been funded significantly more
than representative bodies. The result of this inequitable distribution
is that the priorities of those institutions with relatively greater funding
now dominate the native title system.

One aim of this chapter
is to show how the inadequate funding of NTRBs and the inequitable distribution
of funds between organisations in the native title system impacts upon
the protection of native title and the participation of Indigenous people
in the native title process. A further aim is to develop benchmarks based
on human rights principles to guide the allocation of funds between the
institutions that constitute the native title system. These benchmarks
will also be relevant to fiscal decision-making on Indigenous issues generally.

Distribution
of Funding within the Native Title System

Budget Allocation

The following tables
show the distribution of funding in the native title system:

Federal Government
Funding to ATSIC for Native Title Representative Bodies, 1996 - 2002

Table 1: Funding
for Native Title Representative Bodies

	1996-97 [1]	1997-98	1998-99	1999-2000 [2]	2000-01	2001-02
Government appropriations	.	43 326 [3]	43 477 [4]	.	42 513	43 600 [5]
ATSIC top-up	.	951	5 000	.	10 925	.
TOTAL	40 306	44 277	48 477	48 366	53 438	.

[all figures in
$'000s]

The following should
be noted in relation to Table 1:

Government appropriations
for NTRB funding, which passes through ATSIC, have remained roughly
constant at $43 000 000 since 1997-98 until the present (2001-2002)
budget (see tables below). ATSIC has also provided additional 'top up'
funding from its Global Allocation fund, at the expense of other priorities;
The above figures
represent ATSIC funding to Representative Bodies (from direct government
appropriation and ATSIC top-up). This is less than total ATSIC native
title funding, which includes amounts spent by ATSIC itself on advocacy,
information etc. For example, ATSIC native title funding for 1996-97
was $43 161 000; for 1997-98: $ 46 737 000; and for 1998-99: $ 51 185
000;
The Torres Strait
Regional Authority is funded separately. Torres Strait Regional Authority
funding for native title matters in 1999-2000 was $1 682 000) and is
$1 521 000 thereafter.

2001 - 2005: Increased
Native Title Funding

Table 2 - Proposed
increases to Native Title Funding for all Institutions

	2001-02	2002-03	2003-04	2004-05	TOTAL
Attorney-General's Department	5 549	5 100	3 274	1 965	15 888
ATSIC [6]	2 900	4 700	6 100	3 700	17 400
National Native Title Tribunal	5 977	10 535	10 311	8 894	35 717
Federal Court	5 315	4 572	4 053	2 974	16 914
TOTAL	19 741	24 907	23 738	17 533	85 919

[all figures
in $'000s]

The following should
be noted in relation to Table 2:

The above table
shows that the bulk of the $86 million increase in total native title
funding has been directed away from the NTRBs to other agencies involved
in native title matters, namely the Attorney-General, the NNTT and the
Federal Court. Furthermore, the funds allocated to ATSIC have been quarantined
away from the NTRBs (at least in regard to funding native title claims).
While the increase
in native title funding has been described over four years, the funding
is to be reviewed prior to 2003-04 Budget.
It has been difficult
to obtain exact figures regarding the funding increases as different
figures have been published in each of the Minister for Aboriginal and
Torres Strait Islander Affairs Portfolio Budget Statements, the Attorney-General
Annual Reports and the National Native Title Tribunal Annual Reports.

The following tables
break down the increases in funding for each agency.

Table 3 - Increased
Native Title Funding for ATSIC

	2001-02	2002-03	2003-04	2004-05	TOTAL
Capacity building	2 400	3 200	3 400	2 000	10 000
Litigation	500	1 500	2 700	1 700	7 400
TOTAL	2 900	4 700	6 100	3 700	17 400

[all figures in
$'000s]

The following
should be noted in relation to Table 3:

These funds are
part of the $86 million increase in funding to all institutions in the
native title system, to be provided over four years;
Most of the extra
funding to ATSIC is specifically for a national capacity building program
for representative bodies. The rest is intended to fund a number of
strategic test cases under the Priority Claims Litigation Program. All
of this funding will be held and managed by ATSIC, not by the NTRBs;
The capacity
building program is to be a national program that will target corporate
governance, management development, native title technical training
and information technology.

Table 4 - Attorney
General: Funding for non-claimant native title applications

1998-2000	2000- 2001	2002- 2003	2003-
approx. 7.300 p.a	12 267	approx. 12 267	Decreasing

[all figures in
$'000s]

The following
should be noted in relation to table 4:

These figures
were provided by the Attorney-General's Department, but are approximate
only.
The Attorney-General
provides funding to respondents to native title matters and provides
financial assistance to the state and territory governments

Table 5 - Total
Federal Court spending on Native Title [7]:

2000- 2001	2001-02	2002- 03 [8]	2003-04	2004-05
10 204	12 031	11 178	10 558	9 474

[all figures in
$'000s]

Table 6 - Funding for National Native Title Tribunal

	2000- 2001	2001- 02	2002-03	2003-04	2004-05
Government	25 883	28 493	32 291	33 354	32 229
Total [9]	26 108	28 743	33 566	33 654	32 549

[all figures in
$'000s]

The following
should be noted in relation to Table 6:

Again, figures
vary depending on the Report cited. I have taken the figures from the
Attorney-General's Annual Reports.

These figures display
an imbalance in the distribution of funding within the native title system.
When the relative funding of these institutions is correlated with the
nature and extent of each institution's responsibilities with regard to
native title, the funding bias towards institutions whose responsibilities
are not primarily the protection and recognition of native title
becomes even more apparent.

Representative
bodies

The representative
bodies are one side of the native title equation. They have been described
as the 'engine room' of native title because they deal with all institutions
and processes relating to native title in any particular area and are
obliged to represent and assist the Aboriginal and Torres Strait Islander
people in their areas in all of the following ways [10]:

in making native
title applications
in responding
to future act notices
in negotiating
agreements relating to native title
in certifying
applications to register Indigenous Land Use Agreements
in negotiating
rights of access
in any other
matters relating to native title or to the NTA's operation

At the same time,
of those institutions in the native title system dependent on government
funding, only representative bodies have the substantive protection of
native title interests as their primary function. While a representative
body may determine the priority it gives to performing its functions,
'it must give priority to the protection of the interests of native title
holders.' [11]

The protection of
native title and the participation of Indigenous people in the native
title process depend upon the effective functioning of representative
bodies. Where sufficient funding is not provided to representative bodies
to effectively carry out their functions, or where the funding is insufficient
to meet the pressures on native title processes, including those pressures
created by other institutions with greater funding and whose goals are
not exclusively the protection of native title, the protection of native
title interests and the participation of native title holders in the native
title process will not be fully achieved.

The Federal Court

In contrast to the
representative bodies, the role of the Federal Court is not explicitly
directed to the protection of native title. In the Agency Budget Statements
[12] the Federal Court's primary objectives are defined
as 'apply and uphold the rule of law, to deliver remedies and enforce
rights and in so doing, contribute to the social and economic development
and well-being of all Australians'. This objective is ostensibly measured
through the attainment of a series of disposition targets for the various
categories of cases. The Federal Court's goals and disposition targets
in relation to native title cases have been described in following way:

The Federal
Court reported that it aims to ensure 'that the native title cases will
be managed, heard and determined in a timely and appropriate manner'.
The Federal Court told the [Australian Law Reform] Commission that following
consultations with participants at user group meetings it has set a
goal of three years to dispose of all the native title cases currently
before the Court. This is a goal. It is not intended to be prescriptive.
Not all participants agree with it. There are concerns that such a goal
could limit opportunities for effective mediation in the NNTT.

In fact the three
year disposition target for native title cases may not encourages its
stated objective of 'applying and upholding the rule of law, delivering
remedies and enforcing rights and in so doing, contributing to the social
and economic development and well-being of all Australians'. [13]
In fact, the three year disposition target compounds some of the problems
associated with the relative resource restrictions experienced by representative
bodies, and to that extent at least, the Federal Court's stated aims disadvantage
native title parties and are contrary to objectives of the representative
bodies.

While Justice Beaumont
has commented that the three year disposition target for native title
matters was aspirational rather than mandatory, [16] anecdotal
evidence that the Federal Court is generally unwilling to adjourn native
title cases suggests that these quantitative performance indicators in
fact significantly adversely impact upon the management of native title
cases for representative bodies.

In addition, the
level of funding provided to the Federal Court for processing native title
claims is disproportionately high when compared to the funding provided
to the representative bodies for all of their functions. An additional
$5.315 million is being directed to the Federal Court for the 2001-2002
budgetary period, yet representative bodies have not received proportional
increases, with an increase of only $2.9 million being directed to ATSIC
for the purpose of NTRB capacity building programs only.

This disproportionate
allocation of funds will enable the Court to continue processing native
title matters at the current rate, if not faster. [17]
Under the original NTA, a native title claim only entered the Federal
Court if it could not be settled by the NNTT [18] or
there was an appeal from a NNTT decision, for example on a future act
matter. [19] This meant that when the Court first received
a native title matter, the parties and issues were prepared for hearing.
Under the amended NTA, a native title claim must be filed with the Court
as the initial [20] step before anything else occurs:
before it is registered, before it obtains any procedural rights, and
before the NNTT has attempted a mediated settlement. Under this new procedure,
when the Court first receives a matter, the native title claim may have
been filed for purposes other than a hearing. It will further entrench
the effect that the Federal Court's disposition targets are directing
the native title system, while those institutions whose object is to protect
native title, the representative bodies, are forced to operate in response
to Federal Court objectives rather than the priorities that they might
otherwise set.

These problems are
further compounded by the fact that the amendments to the NTA require
that native title claimants commence Federal Court proceedings, not only
to obtain a determination on an application for native title, but also
in order to secure procedural protections in relation to future acts.
[21] The result is that the timeframes imposed by the
Federal Court's approach to managing its caseload have a direct impact
on the way in which representative bodies must prioritise the functions
they are required to perform.

The nature of this
impact on the protection of native title was explained by Darryl Pearce,
Chief Executive Officer of the Noongar Land Council before the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund during their Inquiry into Indigenous Land Use Agreements (the
'PJC Inquiry')[22] :

The other thing
is that the extra money that has come in has encouraged the federal
court to start to increase their case loads and bring their cases on
earlier. So when rep bodies go in and say, 'We don't have the resources
to be able to do what we are required to do in the period of time. Can
we get an adjournment or can we now mediate interstate?' the courts
say, 'No, you will go to court at the same time.' A federal court is
very comfortable because it actually has tens of millions of dollars
extra in resources. The rep bodies do not have the same money, even
though they are required to be there.

Take my example:
a $1.3 million per annum rep body that is supposed to support the rights
and interests of 30,000 Noongar people - it is probably the largest
cultural block in Australia - and which has six native title claims,
against the resources of a billion dollar state and the Federal Court,
which has tens of millions of dollars to actually run these claims.
That balances up the inequity that goes with those processes. So it
is a bit unnerving, coming from a land council reasonably well resourced
to be able to carry out things under the land rights act, to actually
get into a situation where people are absolutely desperate at the moment.
[23]

It is clear that
representative bodies are not resourced to meet the three year disposition
target set by the Federal Court for native title matters as well as carry
out their functions in relation to agreement-making and other functions.
As at 9 October 2001 there were 618 native title determination applications
in the Federal Court system [24], and the majority of
these are represented or assisted by NTRBs. It is also clear that native
title claims are being pushed into the expense of litigation even where
the opportunities for mediation have not been exhausted. For instance,
in New South Wales at 9 October 2001 the Federal Court had allocated 95%
of native title determination applications for hearing even though 50%
of them were still in mediation. [25]

The threat to the
protection of native title interests as a result of the under-resourcing
of representative bodies and their consequent inability to meet the targets
of the Federal Court was an issue discussed by representatives of both
the Federal Court and the NNTT before the Senate Estimates Committee on
28 May 2001.

Senator Bolkus
- Does that lead us to the problems that the community land council
had with the Wilinggin claim, which I think was dropped by the Federal
Court? You [the NNTT] are obviously feeling the need for extra resources,
and you are getting them, but we have always anticipated that land councils
would also have an enormous need for extra resources to process these
claims. They requested a third adjournment, and so requested because
of the lack of funding, lack of resources, but it was knocked back.
Have you contemplated what that means, and whether you could talk to
the Federal Court about somehow coordinating their activities as well?

Mr Doepel [NNTT
Registrar] - The concept of interdependence of the parts of the native
title system has been a matter that has been discussed by the key agencies
for some time. In fact, our president in the prelude to the annual report
last year actually puts this concept out in black and white. We have
a range of liaison mechanisms with the court, including the president
periodically taking part in the native title coordination committee
of the judges where these overall pressures on the system - on everybody
in the system - are discussed. I certainly with my colleagues, Mr Soden
and other officials, and Mr Chevis and others are dealing with the program
administrative officers. At the end of the day, I think that the court
is probably the better place to speak about this. We are looking at
overall coordination in a strategic sense and the exercise of individual
judges and, in our case, members' discretion to manage their lists as
they consider appropriate and looking at the merits of the case. We
are aware of these problems, and it is a matter of general discussion
amongst the institutions as to what the implications are for refusing
to vacate dates or, in our case, insisting the mediations continue according
to the program.

Senator Bolkus
- You can see the problem. If there is an influx of cases in one council
area and they have got to run those cases -

Mr Doepel - I think
that is a fair point. We have not disguised our comments in the past,
that you would meet three or four matters in formal litigation before
the court where mediation has had to cease for some reason, and that
would effectively take a council out of a whole range of other native
title activities. I think that is surely a fair point. [26]

The comments by Mr
Doepel indicate that the NNTT considers that the priorities of the Federal
Court are directing the native title process away from mediation. Representatives
of the Federal Court were asked similar questions about the disparity
of funding and the difficulty of representative bodies to meet the court's
targets:

Senator Bolkus
- I must refer you to the case involving the Kimberley Land Council.
I think that right at the start of this process there was an appreciation
that the new legislation, new notices, provisions and so on would immediately
lead to extra resource demands on the court, on the tribunal and also
on land councils. We have had the Wilinggin claim [27]
arising from the Kimberley knocked back by the Federal Court, a request
for an adjournment being knocked back and I think it might have been
a third request. I think there is an appreciation that, because of the
increased workload, land councils may not be in a position to resource
adequately all applications that they have to run. Is that something
that you are talking to the Native Title Tribunal about in terms, for
instance, of trying to have a policy or guidelines for staggering native
title cases before the court?

Mr Soden - Yes,
we do and we take our action as well. The funding which has been provided
to us and to the tribunal is part of a broader allocation of funding,
some of which has gone to ATSIC, which is, as I understand it, for further
resources for the representative bodies, therefore the land councils.
Those amounts were calculated having regard to the tribunal's and the
court's calculations of what matters were likely to come on and where
in the future. So I believe that ATSIC now has information that will
help it make those informed funding decisions which will help the land
councils. We are very alive to the difficulties of the land councils
and their funding situations. We are also alive to some of the ways
in which decisions are made concerning land council funding and which
applicant or group of applicants might receive funding support. There
has not yet been an occasion where the court has proceeded to force
on a hearing where applicants have not been funded. However what we
have found is that a gentle approach of not removing the hearing date
has produced the result that ultimately funding has been found for the
applicants and the trials have been able to proceed in a properly prepared
fashion. We have yet to get to the question of whether the court would
force on a matter where an applicant is not funded - importantly, that
issue has not arisen. [28]

While the 'gentle
approach' described by Mr Soden may indeed result in cases being ready
for trial as and when required by the Federal Court disposition targets,
this approach fails to recognize the costs of forcing the NTRBs to direct
their limited funding into litigating claims. The effect of the Federal
Court enforcing its disposition targets in this way is that the native
title process is directed towards a very expensive and time consuming
process and away from other priorities. It is also unsatisfactory for
the Federal Court to rely on the approach of 'not removing the hearing
date has produced the result that funding has been found for the applicants'.
Such an approach relies on ATSIC or Commonwealth 'one-off' funding being
granted for particular proceedings where NTRBs have insufficient funds
to conduct the hearing. For the system to depend on such a procedure undermines
planning and prioritising and also exposes NTRB's to potential liability
if a future proceeding doesn't obtain 'one-off' funding.

Mr Soden again commented
upon the distribution of native title funds to the Federal Court at the
Federal Court - Native Title Representative Body Forum held on 10 October
2001 in Adelaide. [29] Mr Soden, described the evaluation
process, which led to the allocation of funds in the 2001-2002 budget
and indicated that when estimates of resource needs based on actual case/workloads
for additional funding for native title were put forward and considered
by several government departments (including the Department of Finance,
Prime Minister and Cabinet and Treasury) it was assumed that all organisations
in the native title system would get additional resources from the new
funding provided. [30] He agreed however that this did
not eventuate in relation to representative bodies, and that additional
funding was not evenly distributed in this process. [31]

The potential consequences
of the native title process being driven into litigation were described
by the Noongar Land Council to the PJC Inquiry:

To run a native
title claim is somewhere around $2 million to $3 million, simply because
you have to go through land titles. There is far more that you have
to do: you have to search literally every land title that has ever been
put into existence, and identify how it was issued and whether it was
valid or invalid through that whole process..

The main thing
is that there is a concertinaing of the court cases. If it continues
the way it is going, there will be an absolute political nightmare.
If you were to take some 100-odd native title claims and try to concertina
them into the Federal Court judges available and the appeals, including
the appeals up and on their way to the High Court, good luck, guys.
We are going to be in court for the next 18 odd years just on one claim
alone. So if you take a native title claim and it is successful through
the court process, which could potentially take up to three years, then
there is the appeal, then there is the reappeal to the High Court. Miriuwung-Gajerrong
came down in 1993; the potential is that the High Court may refer some
of it back to the Federal Court to redo. Potentially, we may not actually
see anything until the end of 2010, because if it goes back to the Federal
Court and is re-fed back through the system it will continue to do it
all over again. The resources to do all of that is the other issue.
There is not a calculation of that. [32]

The cost of litigation
is also affected by the fact that native title cases are conducted, in
this stage of the native title process, as test cases. The PJC Report
states:

[R]epresentative
bodies have litigated native title applications in the Federal Court
and the High Court in what could be described as a test case period
which has required significant resources. The Kimberley Land Council
for example has sold assets and retrenched a fifth of its staff in order
to be able to represent claimants in court cases. [33]

The Australian Law
Reform Commission made the following Recommendation [34]
in relation to the Federal Court's management of native title:

The Federal Court
should continue to facilitate meetings between representatives from
the Aboriginal representative bodies, Federal government, State and
Territory governments, Federal Court and National Native Title Tribunal
to discuss the expected time frame for resolution of native title claims
and ways to manage the cases so as to meet the agreed timetable.

I endorse this
recommendation and also recommend that such meetings be used to formulate
regional plans for the management of native title determination applications
which take into account the strategic plans of the NTRBs in that region.

The National Native
Title Tribunal

The functions and
objectives of the NNTT are also distinct from those of the representative
bodies in that they do not seek to maximise the level of protection extended
to native title or maximise the participation of Indigenous people in
the native title process. They are defined by s108 and s109 of the NTA
and include functions in relation to native title applications, inquiries,
and native title determinations, mediation, research and assistance.

The Tribunal's 2000-2001
Annual Report identifies the recognition and protection of native title
as its only outcome. However, in view of the performance indicators used
to measure its achievement, the outcome may be better described as providing
a procedure for recognition to occur, with the Tribunal acting as a facilitator
in this process, rather than the goal of achieving substantive recognition
itself.

The achievement of
the Tribunal's stated outcome (the recognition and protection of native
title) is described according to four output groups; registrations, agreement-making,
arbitration and assistance, notification and reporting. [35]
The output groups are measured according to quantitative, qualitative
and resource usage performance measures.

The performance measures
used for the first of these output groups, the registration function,
are:

quantitative
- the number of applications processed for registration;
qualitative -
the percentage of registration test decisions made within two months
of receipt of the application; and
resource usage
- resource usage per registration.

These performance
measures for 'registration' do not refer to whether native title was recognized
or protected through the application of the statutory registration test.
As shown by the table reproduced below, [36] they merely
show the number and the rate at which applications for registration were
decided.

Measure Target Result
Main influences affecting result

Quantity 255 153 Conditions in the Northern Territory

Quality 70% decided within 2 months of receipt Exceeded - 89.7% processed
within 2 months at an average of 1.5 months Tribunal processes now well
established

Resource usage Unit cost per registration test - $12,205 Unit cost was
higher - $16,558 Set-up costs, particularly in the Northern Territory

Measure	Target	Result	Main influences affecting result
Quantity	255	153	Conditions in the Northern Territory
Quality	70% decided within 2 months of receipt	Exceeded - 89.7% processed within 2 months at an average of 1.5	Tribunal processes now well established
Resource Usage	Unit cost per registration test - $12,205	Unit cost was higher $16,558	Set-up costs, particularly in the Northern Territory

Similarly, the performance
measures for 'agreement-making' (the number of agreements registered,
client satisfaction and resource usage) do not themselves disclose whether
the activity resulted in the recognition or protection of native title.
These are reproduced in the following table: [37]

Measure	Target	Result	Main influences affecting result
Quantity	38	20	Government policies Parties' ability to respond
Quality	Client satisfaction	Monitored, not measured	ILUAs are still a very new form of agreement making for most parties
Resource Usage	Unit cost of ILUA agreement-making $91, 902	Unit cost was higher $101,336	43 ILUAs were progressed, but not finalised during the period

The performance indicators
used to determine whether native title has been recognised and protected
as a result of the activities undertaken by the NNTT are not developed
within a human rights framework where the substantive protection of native
title is a primary objective. Rather they are developed in order to improve
the mechanisms by which native title processes can be facilitated.

The qualitative performance measure for 'agreement-making' is 'client
satisfaction'. Yet 'client satisfaction' is based on the satisfaction
of 'peak bodies from mining and local government; State and Commonwealth
agencies; native title representative bodies; individual native title
claimants; businesses engaged in mining; development and environmental
consultancies; individual local governments; large commercial developers;
pastoralists; environmental non-profit groups; various elected officials
at all levels of government; and lawyers and consultants working in native
title.' [38] As a performance measure, this aggregated
'client satisfaction' cannot be said to measure the protection of native
title. The performance measure suggests that the Tribunal is less concerned
with native title parties' satisfaction in having their native title recognized,
than in the satisfaction of all stakeholders with the process.

The quantitative
performance indicators also fail to measure protection of native title.
They merely state the number of agreements made, not the number of agreements
that either protected or failed to protect native title.

Failure
to fund the representative bodies consistently with their statutory responsibilities

The key to the just
and efficient working of the native title process allocating funds so
as to reflect the importance of protecting native title interests and
involving native title parties in decisions over the development of their.
This means funding representative bodies so that they can perform their
statutory functions to a high level.

The fact that representative
bodies are not adequately funded to carry out their statutory functions
has been observed in a number of native title reports and inquiries in
the past twelve months. These include:

Report to the Government of
Western Australia of Review of the Native Title Claim Process in Western
Australia

The Report to
the Government of Western Australia of Review of the Native Title Claim
Process in Western Australia ('Wand Review') [39]
observed that the ability of the native title applicant to participate
effectively in negotiation and mediation depended on the resources available
to the native title applicants, and in particular to their relevant representative
bodies. The Review commented:

Resource shortages
loom as the primary impediment to a timely resolution of native title
applications in Western Australia[41]

NTRBs face costly
and unique resource demands in providing assistance to the negotiation
and mediation of native title applications. The processes involved are
resource intensive (such as the preparation of Connection Reports, determining
the objectives of the native title applicants, advising them and receiving
their instructions and providing for the attendance of native title
applicants at meetings). [42]

The Review is concerned
that representative bodies are not adequately resourced to carry out
their functions in relation to the resolution of native title applications
in anything like the time frames targeted by the Federal Court. Such
a situation can only constrain the process of dealing with native title
applications, whether by agreement or otherwise

NTRBs in
Western Australia are unlikely to be in a position to fund the
levels of activity necessary to progress the negotiation and mediation
of the number of applications that the other parts of the native title
system are capable of processing. It is therefore likely that the current
funding of NTRBs will become a significant constraint on the resolution
of native title applications in Western Australia within a reasonable
timeframe. [43]

The major concerns
of the Review were the capacity of representative bodies to represent
the interests of native title parties in determinations and negotiations
and the effect of the inequitable distribution of funds between institutions
in the native title system. The Review stated:

The chapter also
identifies likely funding shortages in NTRBs as a weak link in the native
title system. There also appears to be a funding imbalance between
NTRBs and the NNTT and Federal Court who have just received increased
levels of Commonwealth operational funding whilst the NTRBs have not
received finding to deal with current let alone projected workloads
(Parts 8.4 and 8.5).

The Review recommended:
[44]

1.1.8 Action
from the Commonwealth to redress this imbalance is recommended. If this
is unsuccessful, it will be necessary for the Government [Western Australia]
to consider supplementing NTRB budgets as part of a strategic approach.

1.1.19 To ensure
a strategic approach, a Government [Western Australia] audit of all
native title applications and a summit to determine the capacities and
intentions of all elements of the native title system is recommended.
The provision of adequate funding by the Commonwealth and the role of
the Federal Court will be crucial to the success of this initiative.

I endorse those
recommendations and call for their implementation.

Inquiry by the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund into Indigenous Land Use Agreements [45]

The Inquiry into
Indigenous Land Use Agreements by the Parliamentary Joint Committee on
Native Title (PJC Inquiry), extending from 17 April 2000 to 6 August 2001,
details the resource difficulties which prevent representative bodies
from participating fully in ILUAs and other agreements in relation to
native title land. In summary, the Committee found:

There is overwhelming
evidence that representative bodies are not receiving adequate funding
to enable them to assist the negotiation of ILUAs within the timeframes
proponents require or prefer. [46]

The Report of the
PJC Inquiry exposed a high level of frustration concerning the native
title process, not only by the representative bodies but also by those
dealing with representative bodies in negotiating agreements. These include
industry, local government and state governments which are impeded in
their efforts to promote or engage in economic development as a result
of the inefficient operation of native title processes. Much of this frustration
was attributable to the under-resourcing of NTRBs.

Even more telling
were the testimonies depicting the frustration of working in or being
represented by an organisation which does not have the resources to ensure
that the native title process works to the benefit of Indigenous people.
The following evidence before the PJC Inquiry is indicative of this despair:

Once again people
are required to wait. People are required to put off their claims. People
are required not to proceed with the investigation because they just
cannot afford it.

There is a complete
lack of reality in terms of the theoretical views of the legislation
and the Native Title Act, and a lack of appreciation of its applications.
Representative bodies have been grossly underfunded and I am referring
to completely independent figures that have been presented. There is
a level of cynicism in the way in which the budget is presented in that
it has no connection to reality in what happens with representative
bodies. There has been no consideration of establishing prescribed bodies
corporate [47]

At the end of the
day, when there is a determination or an agreement, it is not the representative
bodies who are going to be held accountable or responsible. There will
be a community of native title holders, and whatever legal entity is
established to facilitate, look after and protect their interests will
have the say at the end of the day. [48]

The CEO of Noongar
Land Council reflected on the loss of protection to those claims that
the funds couldn't support:

In terms of the
new budgetary money that is coming in [in the 2001 - 2002 budget], ATSIC
is being forced to make some arbitrary decisions. The arbitrary decision
we have made on this basis is that certain claims are going to have
to drop out of the system, simply because there is no money available.
We just cannot afford them. What will happen is that someone is going
to make a decision to say that claim A has far more relevance to far
more people than claim B, even though they are both entitled to the
recognition of native title rights. That is a decision which is being
forced on the groups. I am not aware whether or not there is an implication
in terms of natural justice throughout that whole process. [49]

The Kimberly Land
Council representatives gave evidence that, as a result of under funding,
they were forced to focus on progressing claims through the Courts at
the expense of negotiating agreements related to developments on native
title land. Even then they were forced sell some of their assets in order
to fund litigation. They also discussed staff redundancies directed to
those staff not integral to the litigation strategy adopted. They expressed
concern at the way in which resource difficulties limited the benefit
that Indigenous people were able to get from native title:

We cannot concentrate
a proper and fair effort in representing people. We are left in the
position of having to ask those resource companies to provide the funds
in order for us to fulfil our statutory obligations of ensuring that
the right claimants etcetera are appropriate. So it is certainly
something that needs to be looked at not just from the ATSIC level as
to funding but also from the government's position as to what they want
us to do, what they want Aboriginal people to do. Do they want us to
continue litigation or do they want to settle these matters? The result
is that we have a budget to operate and we burn it up with consultants,
lawyers, anthropologists, and so on in conducting litigation. [50]

Representative bodies
in Gurang Land Council, Queensland, reinforced the overwhelming and oft-repeated
refrain over resources:

I do not mind saying
that we have been underresourced for the last five years. Our budget
to deal with all these native title claims is approximately $1.8 million.
It has been that for the last three or four years, even though our workload
has gone up 100 per cent. We do not have the resources; we do not have
the physical manpower. We rely on external consultants to a greater
degree, but that in itself, with prioritisation now, is just impossible.
[51]

These are just a
few testimonies to the difficulties that those working on the ground face
in seeking to make native title work for Aboriginal people. The Inquiry
provided a valuable forum for the telling of these stories and made two
valuable recommendations to increase the funding to representative bodies
and prescribed bodies corporate. The Committee's recommendations 4 and
8 state: [52]

4. That more
financial resources should be made available to native title representative
bodies for the negotiation of ILUAs.

8. That prescribed
bodies corporate receive adequate funding to perform their statutory
functions and that they receive appropriate training to meet their statutory
duties. This training to include director's duties, accounting procedures
and land management.

I endorse these
recommendations and call for their immediate implementation.

Love-Rashid Report

The 1999 Love-Rashid
Report [53] was commissioned by ATSIC in 1999 to review
the performance and resourcing of NTRBs. It noted that prior to the 1998
amendments to the NTA, representative bodies were insufficiently resourced
to perform even their more limited pre-amendment role as a filter through
which only merit-based claims would be accepted.[54]
However, since the amendments to the NTA the statutory functions of representative
bodies have increased. So too have the number of native title claims and
agreements within the system. The review found that representative bodies
were not sufficiently resourced to achieve the increased functions required
of them as a result of the amendments:

In the Consultancy's
view, the accountability measures, the compliance requirements, the
objective governance requirements and the grant requirements are together
designed to operate to ensure that each NTRB be an efficient, well ordered
and well run expert organisation. That cannot be achieved with the present
level of support available to them. [55]

The Love-Rashid Report
also cited as a major problem the number of future act notifications requiring
immediate response from already stretched:

Given the deluge
of future act notifications received by some NTRBs, circumstances may
well arise where there have been insufficient resources available to
examine a future act proposal to be able to say with any certainty what
the effect on native title might be, or what the strength of any claim
to native title (relevant to that notice) might be. If the NTRB cannot
break the cycle of immediacy, it will lose its ability to prioritise
between its functions and ultimately lose its capacity to satisfactorily
protect native title. The desire to protect native title will lead to
oppositional management practices in many circumstances. [56]

While the Love-Rashid
Report is supportive of the representative bodies' pursuit of more resources,
the Report has been used to support an argument by the government that
representative bodies are poorly managed rather than poorly resourced.
The Attorney-General's submission to the PJC Inquiry stated that the Parker
Report and the Love-Rashid report:

have also
identified poor management structures and the lack of available managerial
expertise as significant limitations on effective operation of NTRBs
in the performance of their functions. Both reports recommended increased
organisational and administrative expertise within NTRBs as necessary
factors for improving their performance. [57]

It is clear however,
from reading the Love-Rashid Report as a whole, that the critical factor
identified as preventing representative bodies from carrying out their
statutory objectives was financial resources.

It is the Consultancy's
view that NTRBs are made up of dedicated staff. If NTRBs are not adequately
funded they will not merely 'under perform'. They will spiral down into
a cycle of immediacy:

deferring strategic
decisions;

externalising
costs;

forgoing opportunities
for negotiation and settlement;

only dealing
with that which demands attention at any given moment; and

take on roles
which deliver achievements as best they can. [58]

The report recognises
that without proper funding, the possibility of representative bodies
adopting a strategic proactive approach to managing their work, rather
than a responsive, oppositional one, is very limited. The first recommendation
of the Report is in relation to funding of representative bodies and states:

That NTRBs be
funded so that they have the capacity to fulfil their core functions,
prioritise between competing service demands of their constituents and
maintain appropriate standards of corporate governance.

I endorse this
recommendation and call for its implementation.

Funding
fails to recognise critical factors

On the basis of the
reports and inquiry surveyed above, it can be seen that the present allocation
of funds to Native Title Representative Bodies fails to take account of
the following factors:

The cost of the
amendments to the NTA;
The relationship
of the component parts of the native title process; and
That representative
bodies facilitate the interaction of two different systems of law.

The
cost of the amendments to the NTA.

The amendments introduced
a number of new and resource intensive processes into the native title
regime including:

The substantial
increase in future act notifications under Commonwealth and State regimes;
The NTAA's increased
emphasis on conflict resolution between claimants;
The demands of
the re-registration process;
The increased
demand for ILUAs and other agreements effecting native title; and
The increased
accountability requirements of the NTAA; and
The re-recognition
process.

The Love-Rashid Report
commented on the resource implications of these amendments as follows:

The legal and practical
environment within which NTRBs operate has been fundamentally changed
by the NTAA and case law developments referred to above. The resources
provided to NTRBs must be reassessed so as to take account of [these
amendments]

An overarching
consideration is that, whereas in the past the functions of NTRBs were
to some extent discretionary, under the NTAA they can be mandatory.
[59]

Despite the 1998
NTA amendments, there has been no proportionate increase in the funding
allocated to representative bodies since the 1998-1999 budget. As confirmed
in the PJC Report, 'the increase in funding of $2.9 million in the 2001-2001
budget is the first increase in native title funding to ATSIC since the
1995-96 financial year.' [61] Yet this modest increase
in funding is not available to NTRBs for performing their statutory functions
but is to be administered through ATSIC for the purpose of implementing
a capacity building programme.

I will comment on
the resource implications of just some of the amendment provisions outlined
above.

Increasing future
act notifications

The amendments to
the NTA provided for state and territory governments to introduce statutory
alternatives to the future act provisions of the NTA. While trying to
establish such regimes, many state and territory governments so delayed
the commencement of the right to negotiate provisions in their jurisdictions,
that they are now faced with substantial backlogs of future act applications.
These states and territories have now begun processing their 'backlogs',
all of which are required to be dealt with according to the right to negotiate
process (or alternative state regimes). The administrative practices adopted
by some state governments has greatly complicated the processing of future
act backlogs as discussed in chapter XXX herein. [63]

Some of those giving
evidence before the PJC Inquiry on behalf of representative bodies commented
that the irregular and haphazard issue of future act notices by state
and territory government departments and the failure to involve representative
bodies in the management of this process greatly increased the cost of
responding to such notices. This was complicated by the cost of notifying
remote and geographically dispersed communities of the proposed future
acts. [64] The way in which this practice affects the
level of participation of Indigenous people in decisions affecting their
land is discussed in chapter XXX of this report.[65] Of
concern in this chapter are the resource implications of this and similar
practices for representative bodies.

The Registrar of
the NNTT, Mr Doepel, recognized the difficulties created for representative
bodies by the haphazard issue of future act notices in the Northern Territory
at the Senate Estimate Hearings on 28 May 2001. At this forum Mr Doepel
suggested that the clustering of notifications according to regions would
improve the efficiency of the system and decrease costs for representative
bodies:

Senator Bolkus
- I suppose this question goes both to here and to Western Australia,
which I will get to in a second. From your experience, do you have any
suggestions that you are able to discuss with the Northern Territory
government? Is there a process to raise suggestions with them as to
how to issue notices and which areas and so on?

Mr Doepel - We
are in constant discussion with Territory officials, but ultimately
it is their prerogative under their government's directions to have
the sequencing that they will adopt. While we do convey some views about
the overall management of the notice issue, the pattern has been as
Mr Chevis has described. It is not clustered and it does lead to, I
think, quite a bit of work on people's part to respond to that pattern
of issues. I might add, though. That the rate of issue in the Northern
Territory of roughly 16 a fortnight is appreciably far less that the
rate of issue that we had several years ago in Western Australia where
we had up to 200 at a time being issued every fortnight. So there are
some interesting comparisons of scale.

Mr Bolkus - In
terms of clustering to do it better, how would you cluster?

Mr Doepel - I hesitate
to speak on behalf of Territory officials, but if you were looking at
the overall map, as Mr Chevis has just described, we have got 800 backed
up tenement applications. You could possibly divide the Territory up
into a grid and you would have this group up here and that group next
to it, and then the groups adjoining. What happened, particularly in
the first issues, was that you had some at the top, some at the bottom
and some in the middle. Some of these licenses I think are over very
small areas - they are what is called in the game 'polygons' simply
the tenement are that the explorer or miner wishes to deal with - and
they appear in many instances as small geometrical patches on the map.
In the case of one of the land councils, they have decided, 'Well, we
will anticipate future issues and we will broaden up the claim area
so you do not have to claim again when another polygon is put out on
notice within the vicinity.' [66]

The other major concern
regarding the administrative practices adopted in the issuing of future
act notifications is the ambit use of the expedited procedure under Section
32 of the Act for all exploration or prospecting leases. [67]
This process, combined with the NNTT's stated position that it will not
hear objections to the application of the expedited procedure unless representative
bodies provide comprehensive information when objecting to expedition,
adds significantly to the costs incurred by representative bodies in responding
to future act notices:

[I]t means that
if native title holders are to have the right to negotiate they have
to lodge an objection and be involved in a preliminary hearing, and
the time and resources which that takes, just to get the right to negotiate.
If their objection is successful, then their actual right to negotiate
process flows. So the procedures that the tribunal is empowered to bring
in, to organize the conduct of the matters before it, are new procedures
they have introduced without consultation with any parties, native title
holders or otherwise, with respect to how these objection procedures
should work. For example they require the locating of sites on the documentation
that is filed with the actual objection. That is a separate question
from the actual hearing of the matter when you have to establish, for
example, there is a site there that may be affected. This is actually
the production of the evidence when the objection is lodged, not during
the course of the hearing.

Given that it is
an expedited procedure, if you recall the matters that I referred to
earlier about how there is often not a tradition of research - although
there is some with respect to sites - it is simply impossible with the
existing resources to be able to do that in the incredibly short time
frames involved. Again it is very resource intensive. [68]

The cost of the increase
in the number of future act processes under the amendments and the state
practices adopted to administer these processes means, on their present
funding, representative bodies are not able to respond to future act notices
so as to ensure maximum participation of Indigenous parties in the native
title process.

Increased demands
of the registration test

The 1998 amendments
substantially increased the requirements for registration of native title
claims. However, there has been no recognition in budget allocations that
the increased demands of the registration test [69]
would be particularly resource intensive for representative bodies in
the two or three years after the amendments in September 1998.

In relation to the
registration test, representative bodies are now required, among other
things, to organise meetings to determine authorisation, resolve disputes
between Indigenous parties to ensure that there are no overlapping claims,
retain and fund anthropologists to show, on a prima facie basis, a connection
to the claim area, and gather affidavit evidence about the nature of the
claim and the extent of the claim area. The Parliamentary Joint Committee
commented upon the resource requirements of the registration test as follows:

[R]epresentative
bodies have committed a significant proportion of their resources to
the re-registration of native title determination applications and mediation
of intra-Indigenous disputes. Registration is a threshold issue and
ILUAs have accordingly taken a secondary priority for representative
bodies. [70]

The failure to allocate
additional funding to support the registration of native title claims
in the three years following the amendments has meant that some native
title parties have simply missed out. This has been particularly noticeable
in New South Wales after the amendments were enacted, where a strategic
decision was made by the representative body, the NSW Land Council, to
withdraw many applications for determination and registration and devote
scant resources to prioritizing those claims that could be immediately
progressed in the Court.

Increased accountability
requirements

Part 11, division
5 of the amended NTA substantially increases the accountability requirements
of the representative bodies. Yet there has been no increase in representative
body funding to enable them to properly comply with the increased requirements.
Mr Vincent, representing the Western Australian Aboriginal Native Title
Working Group, put the issue succinctly in his evidence before the PJC
Inquiry:

Under those provisions,
representative bodies have a plethora of responsibilities to a very
high standard. They have to prepare strategic plans and present them
to the minister for approval. They have to prepare annual reports to
the standard appropriate for tabling in parliament. That includes sophisticated
accounting requirements. There has to be compliance with the Commonwealth
Authorities and Companies Act - which is known by the acronym CAC Act
- and that includes aspects of finance and personal dealings on the
part of committee members, directors and staff which have to be to a
very high standard. I am advised that those standards are to the level
that substantive government quangos, such as the ABC, have to comply
with. They must meet the same level.

Two aspects emerge
from those high standards. The first is a question of public confidence
and the other is a question of fairness. On the public confidence aspect,
if, as has been the case here, the Commonwealth parliament sees fit
to devolve certain responsibilities of a statutory nature upon representative
bodies, the public has a right to ensure that those bodies can carry
out those duties to the high standards expected of them. Following on
from that, we suggest that those bodies must be funded to acquit that
public confidence properly and reasonably.

Peter has addressed
you on the question of funding and the fact that there has been no real
substantive increase in funding since, I think he said, 1996..

There is also another
aspect and that is the one of fairness. These representative bodies,
comprise as you would know, community people, Aboriginal people, who
sit on their committees and are chairpersons or hold office. These people
are now subject to onerous provisions relating to such things as conflict
of interest in relation to other aspects of their duties, prudential
requirements and so forth. They are ordinary members of the community
put into a particularly vulnerable position by a decision of the Commonwealth
parliament. They do not resile from their position, but there is still
the question of fairness that arises that they have to be put
in a position where they can adequately acquit their responsibilities
and where they can get proper advice, proper systems in place, so that
in the usual course of their dealings they are not going to be placed
unfairly in a vulnerable position and then unfairly cop criticism from
those many people unfortunately in our community who are very quick
to seize any opportunity to criticise Aboriginal organisations and,
indeed, Aboriginal individuals. [71]

Mr Vincent expressed
a general concern among representative bodies that not only was the protection
of native title compromised by the lack of resources but also that the
failure to provide sufficient funding to comply with the increased accountability
requirements for representative bodies was unfair to office bearers of
the representative bodies, who could be personally liable where they were
unable to carry out their functions.

Re-recognition
of representative bodies

The re-recognition
process initiated by the amendments diverted scarce resources away from
representative bodies' core functions such as pursuing native title claims,
registering claims and agreement making. The PJC Report on ILUAs recognised
that 'this process was time consuming and resource intensive'. [72]
The re-recognition process also had a profound impact on the morale and
performance of NTRB employees. The PJC Report on ILUAs recognised that
it 'created uncertainty for representative bodies and their staff.' [73]
Gurang Land Council described the effect of the process on their organisation
as follows:

We have gone through
re-recognition. It has taken this land council 12 months to be re-recognized
which is absolutely ludicrous. There were questions and processes that
we went through which we were absolutely mystified by - the way the
government and ATSIC were with this re-recognition process. They were
forewarned by all the NTRBs throughout Australia that, had they gone
down this road, it would stall native title and deliberately put offside
a great many people - and this is the case in point...

We were totally
uncertain of our future for almost 12 months. It was very hard, although
full credit must go to our staff, who stayed loyal and stayed with the
land council - most of them. We have tried to do the job to the best
of our ability, to keep things progressing on behalf of the traditional
owners. We understood the dilemma that councils, miners and developers
were going to be placed in because of the uncertainty of certification.
[74]

Even though the re-recognition
process commenced in October 1998, there is still one representative body,
Noongar Land Council, whose status as a representative body has not as
yet been determined.

All these additional
functions now required of representative bodies by the amended NTA require
substantially greater resources than are currently allocated to representative
bodies. The failure to fund the 1998 amendments to the NTA undermines
the protection of native title.

The interrelationship
of the component parts of the native title process.

Agreement making
and determinations are the two pivotal parts of the native title process.
These processes are complementary. The determination process enables the
traditional owners in a particular region to be legally recognised as
the native title holders of the land and agreement-making enables the
participation of those title holders in the economic development of their
land.

In many cases representative
bodies do not have the funds to conduct both processes simultaneously
and must choose between these otherwise interrelated processes. Where
agreements are pursued without progressing the claims process, the funds
are directed away from giving native title holders title over their land.
Where litigation or consent determinations are pursued leaving no capacity
to negotiate agreements, native title parties are denied the opportunity
to obtain immediate benefits from their land.

At the Kimberley
Land Council a conscious decision was taken to use its limited resources
to pursue claims over and above the negotiation of agreements. The implications
of this decision are outlined in evidence before the PJC Inquiry:

Mr Gunning - The
other area where the effect of the redundancies has been felt is in
our capacity to deal with matters like the town based future act matters
in Broome. Some of the matters that the shire may have raised with the
committee this morning would fall into this category. Because legal
and other resources have been forced into the litigation of claims,
we have not been able to devote to the town based future act matters
- quite significant local developments; we are talking about things
like the airport and the Broome power station - the resources that are
necessary to ensure that the claimants' interests are properly represented.

Chair - In relation
to the power station, it was even a greater tragedy. Isn't it now the
case that the developer has withdrawn all negotiations and has gone
somewhere else altogether.

Mr Gunning- They
are looking for another site. [75]

The PJC Report on
ILUAs noted that many representative bodies were unable to engage fully
in the agreement making process due to insufficient resources.

Virtually all representative
bodies indicated that they did not have sufficient resources to assist
the negotiation of ILUAs within the timeframes desired or required by
proponents. For example, Central Queensland Land Council said that its
resources would only allow it to hold annual meetings of native title
groups for purposes of authorizing agreements within its region. Where
proponents wished to pursue agreements more quickly, the Land Council
was seeking to recover costs of doing so from the proponent. The Western
Australian Aboriginal Native Title Working Group, which is a federation
of Western Australian representative bodies and ATSIC representatives,
noted that its members were also seeking to recover negotiation costs
from its proponents. [76]

The PJC Report comments
upon the frustration felt by industry, local government and state governments
which are impeded in their efforts to promote or engage in economic development
as a result of the inefficient operation of native title processes. The
Minerals Council of Australia, [77] Rio Tinto and the
Australian Pipeline Industry Association all noted that the failure to
fund representative bodies adequately resulted in proponents being required
to contribute to the costs of negotiations which involve native title.

In a number of
instances, we have actually provided resourcing to the other parties
so that there is equity in the negotiation - in addition to resourcing
provided from the government source. It is not something we like to
do but, again, it has to do with time lines and time frames. By providing
the additional resources, we get things done in that critical path I
referred to before. [78]

The trend of representative
bodies relying on the proponents of a project to provide funding to enable
the native title parties to negotiate an agreement with them, was seen
by some witnesses before the PJC Inquiry as a source of conflict, which
gave proponents the upper hand in negotiations. The Kimberly Land Council
representatives stated that:

We are left in
the position of having to ask those resource companies to provide the
funds in order for us to fulfil our statutory obligations of ensuring
that the right claimants etcetera are appropriate. That is just not
right in that, on the one hand, we are dealing with a company on a commercial
basis to talk about settling an agreement and, on the other hand, our
hands are tied behind our backs as to the negotiations because we cannot
negotiate fairly in order to settle matters. [79]

Dr Strelein, Director
of the Native Title Research Unit at the Australian Institute of Aboriginal
and Torres Strait Islander Studies, but appearing in her own capacity,
pointed out that this practice can put pressure on native title parties
to come to an agreement, particularly where representative bodies are
unable to negotiate without the companies funds.

It is a conflict
of interest really. I know that the rep bodies are not bound by that,
but at the same time it gives the proponents a call on indigenous people's
time and on the rep body's time with regard to coming to an agreement:
'We put money into this already. It is not just internally sunk funds;
it is externally sunk funds that have to be accounted for.' I think
it is a concern. Again, I do not think that, if they were fully funded,
there would be no calls. I think there would still be calls: 'If you
want to come to us, then you have to give us an up-front payment.' That
is the way commercial developments work: if somebody comes to you, you
have got the bargaining power. But, in this situation, that is not the
case. This is not a situation where indigenous people are saying, 'We
just won't negotiate,' because they are in a strong position; they are
actually saying, 'We can't negotiate,' because they are in a weak position,
which is not the same. [80]

A further difficulty
with this practice is that smaller companies, who cannot afford to pay
all the costs of negotiation, are excluded from the agreement-making process
because representative bodies have no money to deal with them. This trend
indicates that under-resourcing representative bodies not only affects
the level of protection extended to native title, but also impedes economic
development on native title land.

Local government
representatives also observed that the resources of representative bodies
are so tied up in litigation, the representative body re-recognition process
and and re-registration of native title claims that they do not have the
capacity to negotiate agreements (including future act agreements) and
that this impedes local and regional development. [81]

In fact, the PJC
Inquiry on ILUAs tapped into a high degree of frustration by developers
and local councils over what was perceived as bureaucratic or wilful impediments
to negotiating agreements. A worrying response to these impediments was
the reliance by local government on compulsorily acquisition powers where
negotiations were unproductive.

Councillor Ross,
President of the Australian Local Government Association, was questioned
about the use of compulsory acquisition by local councils.

CHAIR - It seemed
unfortunate to me that a number of these councillors had got to a point
of frustration such that they felt that the best way to go was compulsory
acquisition, which is really a position of last resort and quite an
unfortunate one brought about by a sense of frustration at the delay
and complexity of what started out to be for them quite a simple process.

Councillor Ross
- I think that we have made that point. We think that it is a poor decision
to make and people have been improperly advised. [82]

Mr Wensing, consultant
for the Australian Local Government Associations, gave an example of where
the compulsory acquisition approach to development was taken and the implications
of this practice:

An agreement is
the Cairns City Council acquisition of land on the foreshore to facilitate
private development. In that particular case they started the process
by serving a compulsory acquisition notice on the registered claimants.
Of course, then they went and knocked on the door and said they wanted
to negotiate in good faith. Well, they have just destroyed that, haven't
they? I am pleased to see that in the long run they withdrew the compulsory
acquisition notice and decided to head down the agreements route. [83]

The failure to fund
representative bodies sufficiently to carry out their agreement-making
functions has the result that native title parties are removed from the
management of their land. In addition, resourcing has direct implications
on the level of protection extended to native title interests relative
to the interests of the non-Indigenous party.

The representative
appearing on behalf of the Federal Attorney-General recognised that the
negotiation of agreements is not an alternative to litigation and that
the processes should run simultaneously:

In quite a number
of the submissions phrases have been used - or maybe it was in the Hansard
- saying that it is negotiate or litigate. In fact those are not the
alternatives. ILUAs are mostly about negotiating whether future acts
can be done, and that needs to be distinguished from the litigation
which is the hearing of a native title application in the Federal Court.
If you are negotiating to do a future act and the native title parties
will not agree, you do not go to court, you go to the Native Title Act,
and find out whether you can or whether you can do it another way. So
I think there has been a bit of a misunderstanding that negotiating
an ILUA is not a substitute for going to court. [84]

However, there is
no apparent appreciation by the government that representative bodies
must make the difficult and artificial distinction between litigation
and agreement-making because they are chronically under-resourced and
therefore unable to engage in both processes simultaneously. The re-integration
of the component parts of the native title process can only occur if representative
bodies are funded to deal with all of their functions including the representation
of native title parties in litigation cases.

Representative
bodies facilitate the interaction of two different systems of law and
culture.

The level of funding
extended to representative bodies does not recognize the cost of facilitating
the recognition by the non-Indigenous legal system of the traditions and
customs that belong to an Indigenous legal system. Consistent with its
origins, native title is a communal title. An example, raised by many
representative bodies in the PJC Inquiry, was the expense of assuring
the non-Indigenous legal system that all the individual members of the
group had authorized the claimants to an application for determination
or that an agreement had the consent of all the members of the group.

Noongar Land Council
explained the resource difficulties of negotiating an agreement or pursuing
a claim of this kind:

If somebody could
work out how I am to inform - and get the consent of - 30,000 people
to enter into those agreements, I would very much like the information
and, in fact, the resources to do it. [85]

Central Land Council
had a similar story to tell:

The point I make
which is perhaps the point at the heart of this submission, relates
to the difficulties we encounter in the authorization or certification
of agreements One point which I have not addressed in many of
the other submissions - certainly not in any detail - is the nature
of the groups that people are seeking to bind. In our submission we
said that it was unlikely that these ILUAs would try to bind any fewer
than 250 people. When you look at recent decisions you see that the
logistics in doing that are of considerable magnitude. That estimate,
certainly from our experience, is particularly conservative. It may
be that we are talking about many more people than that. [86]

In view of the costs
of certification, agreement making is a limited option:

Mr White - I have
a budget which I can provide, which is based on 150 members of
a clan group who are not in town at the time that you want to authorize
an agreement. The essence of our user pay system is very simple. We
estimate, using that budget, that we can probably do one certification
per year and an absolute maximum of five certifications, and that is
not including costs of negotiation. So, essentially, we are saying that
we would advise parties of the costs of certification and invite them
to wait for an annual certification meeting, to which we invite all
relevant people and we pay for the costs.

CHAIR - That might
be a number of certifications?

Mr White - Yes.
During the year we would just ask everyone, 'Are you willing to wait
and to cooperate with other people who are also coming up with ILUAs?
Are you willing to contribute a bit towards the costs of the meeting?
If not, just wait. If you are in a hurry and you wish to have an ILUA
certified rapidly, here are the costs associated with doing that.' The
costs are purely the costs of authorization, and for us to satisfy statutory
criteria. [87]

Senator Mason -
This process does not lend itself to a quick outcomeIn other words
the process that is in place is too expensive for what, in many cases,
shire councils need. That is the problem.

Mr White - We are
saying that, in that instance, we can do it if we can lump together
a whole pile and do it at a single meeting. That is within CQLC's existing
budget. We can do it. [88]

In addition to the
costs of authorizing and certifying a claim or agreement there is also
the cost of ensuring that any benefits that might come with holding a
communal native title are shared with the wider group. It was noted throughout
the Inquiry that there has been no proper recognition, in representative
body allocations, of the cost of setting up Prescribed Bodies Corporate,
a function that also falls to the representative body.

The other major cost
associated with translating traditional laws and customs into the non-Indigenous
legal system, for which there is insufficient account in the NTRB budget,
is the cost of proving the connection of the claimants to the original
inhabitants and their laws and traditions. In the agreements process these
aspects of the claim are established through providing to the State a
connection report compiled by anthropologists and other experts. In the
litigation process similar evidence is filed either by way of expert statements
or affidavit evidence. These processes are very costly and time consuming
and dealt with in greater depth in Chapter three of this report. [89]

The failure of government
to recognize the above factors in their fiscal decision-making over native
title, in many instances has contributed to a mounting tension between
representative bodies and the people they serve. It has been nearly ten
years since the Mabo decision [90] and
the benefits, in terms of land titles or economic development have been
limited. This is partly because of the legislation and the winding back
of common law rights. But it is also due to the way in which the Act has
been administered and resourced. One piece of evidence before the PJC
Inquiry expresses how the process is perceived through the eyes of an
Aboriginal elder, Miss Grant of the Wiradjuri Elders:

These people [the
funding bodies] make decisions in a great area, there is not a lot of
money and there are a lot of regulations and structures you have to
go under.

The communities
out there are torn apart because of people infringing on their countries.
The finance is not going that way. We do not have our own economic independence;
we cannot build our own business. We want career paths for our young
people. But there are these factions and they are enhanced, we believe,
by the system, also by native title or the land use agreements. Most
of us do not know much about the land use agreements. Who are they benefiting?
Where is the money? How do we access it?... There is an industry structure
of Aboriginal hierarchy. One wage in some of those industry organizations
equals the whole community allotment, so again there are these power
playing faction groups. It is tearing our communities apart. [91]

Benchmarks

Many of the reports
and reviews that have been surveyed in this chapter have observed and
commented upon the inefficient and inequitable way in which resources
are allocated to the native title system. Some too have made recommendations
on how this allocation can be improved. My contribution to this process
of review and improvement has its origins in human rights principles and
their capacity to guide the budget process towards an equitable outcome.

Human rights principles
distinguish between two types of government measures or programs aimed
at racial equality: first, those taken by government to achieve racial
equality for those who are presently disadvantaged because of systemic
and historical racial discrimination, often referred to as special measures;
and secondly, those taken to ensure that the cultural identity of minority
groups, such as Indigenous people, are recognised and maintained.

The government's
obligations in relation to the former can be found in Article 1(4) of
ICERD. Under this clause, special measures must be taken for the sole
purpose of securing the advancement of a particular group; such advancement
must be necessary; they must not lead to the maintenance of separate rights
for different racial groups; and they must not be continued once the objective
of the measure has been achieved. Examples of such special measures are
the community service programs around housing, health and education aimed
at ensuring Indigenous people enjoy the same opportunities as those enjoyed
in the non-Indigenous community. The right to the protection and maintenance
of one's culture, can be found in Article 27 of the ICCPR.

The Acting Aboriginal
and Torres Strait Islander Social Justice Commissioner, in her submission
to the CERD Committee in March1999, made the point that native title belongs
to the latter of these categories. [92] It is not a
special measure or service program as defined by article 1(4) of ICERD.
It is the recognition of a right that is inherent to Indigenous people.
It is the recognition of our laws, culture and land, as the First Peoples
of this country. Native title does lead to the maintenance of separate
rights for Indigenous people. Native title is not a temporary measure
which can be removed once its objective of overcoming the effect of historical
patterns of racism has been achieved.

It is clear that
the current budgetary process makes no distinction between the funding
of these two types of government programs. Native title is funded as a
community service program is funded and exhibits the following characteristics:

It is dependent
on annual grants,
It is granted
at the discretion of the funding agency,
It ties funds,
at varying levels of generality, to a program,
It is evaluated
according to guidelines and priorities established by the funding agency,
The quality of
the application and the lobbying for funding influences the outcome
of the funding process. [93]

There are many reasons
why this funding model is inappropriate to Indigenous programs. The arguments
are even more compelling when applied to the protection of an inherent
right such as native title. The following principles should be reflected
in the funding of native title:

The full
and effective participation of Indigenous people in decisions that affect
them. Because native title originates in an Indigenous system
of law and culture there should be effective participation by Indigenous
people in determining not only the amount that is allocated to NTRBs
but also the criteria by which the funds are distributed throughout
the native title system. This notion of effective participation in budget
processes is supported in the Report on Indigenous Funding by the Commonwealth
Grants Commission (the Commonwealth Grants Commission Report) which
found:

There are important
principles and key areas for action that should guide efforts to
promote a better alignment of funding with needs. These include:

(i) the full
and effective participation of Indigenous people in decision affecting
funding distribution and service delivery [94]
Native title
as an expression of inherent Indigenous rights.
As an inherent right, native title must be viewed as a permanent feature
of the Australian property system. If it is appropriated, extinguished
or impaired through the executive or legislative powers of the State,
compensation must be paid. Accordingly it is inappropriate that the
funding of native title and those responsible for protecting it be determined
through annual grants. Rather the funding of native title should be
guaranteed either by linking it to relevant activities in the private
sector, similar to the Aboriginal land rights legislation in NSW and
Northern Territory, or by building in a long term capital base from
which income can be generated, similar to the funding of the activities
of the Indigenous Land Corporation.

The Commonwealth Grants Commission recommended a long term approach
to funding in order to better meet Indigenous needs and 'ensur[e] a
long term perspective to the design and implementation of programs and
services, thus providing a secure context for setting goals. [95]

The argument for
adopting a long term approach to funding is even more compelling when
applied to protecting the inherent rights of Indigenous people.
Protection
of Indigenous culture. Native title is a concept which, consistently
with human rights principles, enables the maintenance and protection
of Indigenous culture through the legal system. The right of Indigenous
people to have their culture protected and maintained should be an overriding
objective of any funding process for native title. It should be a key
priority in the overall funding of the native title process and the
organizations participating in it. Accordingly the funding of representative
bodies to perform their statutory functions to a high professional standard
must also be a key priority of the funding process.

1.
No division between government and ATSIC top-up given in Annual Report.

2.
ibid.

3.
Includes $1 834 000 rolled over from 1996-97.

4.
Includes $1 362 886 rolled over from 1997-98.

5.
This figure does not include the increase referred to in the next table,
which does not go directly to the NTRBs. No total figure can be given
till end of financial year.

6.
for division of funds, see table above.

7.
According to evidence given to Senate Legal and Constitutional Legislation
Committee, Attorney-General's Portfolio: National Native Title Tribunal,
28 May 2001

8.
Figures for 2002-2005 are forward estimates.

9.
Total funding includes Government appropriations plus sales of goods and
services, interest payments and resources received free of charge.

10.
The functions of representative bodies are defined under Division 3 of
Part 11 of the NTA.

11.
Section 203B(4), Native Title Act 1993 (Cth), ('NTA').

12.
Federal Court of Australia, Agency Budget Statements, Evidence,
Legal and Constitutional References Committee, Australian Senate, 28 May
2001.

13.
ibid. p92.

14.
ibid, Table 2.2.1. Also see Federal Court of Australia, 1999-2000
Annual Report, pp40-41

15.
Australian Law Reform Commission, ALRC 89: Managing Justice: a review
of the federal civil justice system, (ALRC Report) 2000, para 7.57
(emphasis added). This information stated in the ALRC report was based
upon the Federal Court's submission to the Australian Law Reform Commissioner.

16.
at the Native Title User Group Meeting in Sydney on 23 February 2001

17.
The Federal Court's submission for additional funding was based on a projected
number of cases being disposed of within 3 years.

18.
Original NTA, s74 (amended 1998).

19.
eg. under the Administrative Decisions (Judicial Decision) Act 1977
(Commonwealth).

20.
NTA, s61(5).

21.
Only registered native title claims are entitled to the procedural protections
and only claims lodged in the Federal Court may be registered. See sections
184 and 190A(1) NTA. Where native title claims in the Federal Court are
withdrawn they must also be de-registered: section 190A(4).

22.
Parliamentary Joint Committee on Native Title and the Aboriginal and Torres
Strait Islander Land Fund, Nineteenth Report of the Joint Committee
on Native Title and the Aboriginal and Torres Strait Islander Land Fund,
Second Interim Report for the s.206(d) Inquiry Indigenous Land Use Agreements,
Parliament of the Commonwealth of Australia, September 2001 ('PJC Report').

23.
Mr Pearce, Hansard, 2 July 2001, p384-385.

24.
These figures were provided by Justice French to the Native Title User
Group meeting in Adelaide on 9 October 2001.

25.
This figure was provided by Chris Searle, NSW Crown Solicitor's Office,
to the Native Title User Group meeting on 9 October 2001.

26.
Legal and Constitutional Legislation Committee, Senate Estimates, Hansard,
28 May 2001, pp34-35

27.
W6015/99 Tribunal number: WC99/11 Application name: Wanjina/Wunggurr-Willinggin

28.
Legal and Constitutional Legislation Committee, ibid., pp56-57.

29.
The purpose of the forum was to give representative bodies an opportunity
to raise matters of concern about Federal Court management of native title
matters and to allow representatives of the Federal Court registry directly
involved in native title case management an opportunity to respond.

30.
Federal Court Registrar, Warwick Soden described the process at the forum
between the Federal Court and NTRBs on 10 October 2001 and confirmed the
assumption held by the Federal Court that the estimates would form the
basis for increased funding to all those organisations affected. He also
confirmed that this assumption had not been realised.

31.
ibid.

32.
Mr Pearce, Official Committee Hansard, 2 July 2001, p384-385.

33.
The PJC Report, op cit, p92.

34.
The ALRC Report, Recommendation 74.

35.
National Native Title Tribunal, Annual Report 2000 - 2001, p39.

36.
ibid, p48.

37.
ibid, p63.

38.
ibid, pp64-65.

39.
Wand, P., and Athanasiou, C., Review of the Native Title Claim Process
in Western Australia, Report to the Government of Western Australia,
Western Australia, September 2001 (the Wand Review).

40.
ibid, p124.

41.
ibid, p121.

42.
ibid, p125.

43.
ibid.

44.
ibid, p8.

45.
The PJC Report, op.cit.

46.
ibid, p99.

47.
Mr Yu, speaking on behalf of the Western Australia Aboriginal Native Title
Working Group, Hansard, 2 July 2001, p366.

48.
ibid, p368.

49.
Mr Pearce, Hansard, 2 July 2001, p384.

50.
Mr Gunning, Hansard, 2 July 2001, p392.

51.
Mr Bonnici, Hansard, 20 March 2001, p149.

52.
The PJC Report, op cit,Recommendations.

53.
Senatore Brennan Rashid, Review of Native Title Representative Bodies,
March 1999.

54.
Ibid, p21.

55.
ibid, p26.

56.
ibid, p32.

57.
Attorney-General's Department, Submission to the Inquiry Into Indigenous
Land Use Agreements by the Parliamentary Joint Committee on Native Title
and the Aboriginal and Torres Strait Islander Land Fund, Number 38,
p33.

58.
op.cit, p3.

59.
ibid, p38.

60.
as shown in Table 2, pageXX herein.

61.
Love-Rashid Report, op cit, p94.

62.
In most cases the 'alternative regimes' were rejected by the Commonwealth
Senate.

63.
pXXX herein.

64.
pXXX herein.

65.
pXXX herein.

66.
Legal and Constitutional Legislation Committee, Senate Estimates, Hansard,
28 May 2001, pp33-34

67.
also discussed in chapter One of this report

68.
Mr O'Donnell, speaking on behalf of the Western Australia Aboriginal Native
Title Working Group, Hansard, 2 July 2001, p369.

69.
set out in sections 190A, 190B, and 190C of the Act.

70.
PJV Report, Op cit, p92.

71.
Mr Vincent, Hansard, 2 July 2001, p368.

72.
PJC Report, op cit, p91.

73.
Ibid.

74.
Mr Bonnici, Hansard, 20 March 2001, p149.

75.
Mr Gunning, Hansard, 2 July 2001, p399.

76.
Op cit, p84

77.
Mr Cribb, Hansard, 2 April 2001, p233.

78.
Mr Harvey, Representative of Rio Tinto, Hansard, 2 April 2001,
p249.

79.
Mr Gunning, Hansard, 2 July 2001, p392.

80.
Ms Strelein, Hansard, 1 June 2001, p264.

81.
Mr Wensing, Hansard, 9 November 2000, p26.

82.
Councillor Ross.Hansard, 2 April 2001, p253.

83.
Mr Wensing,Hansard, 9 November 2000, p14

84.
Ms Horner, Hansard, 2 April 2001, p256

85.
Mr Pearce, Hansard, 2 July 2001, p384-385.

86.
Mr Moharich,Hansard, 21 March 2001, p196.

87.
Ibid, p198.

88.
ibid, p201.

89.
See pXXX

90.
Mabo v Queensland (No.2) (1992) 175 CLR 1.

91.
Miss Grant, Hansard, 8 June 2001 p307.

92.
Acting Aboriginal and Torres Strait Islander Social Justice Commissioner,
Response to request for information in relation to Decision (1)53 concerning
Australia, 3 March 1999, annexed to Native Title Report 1999,p109,
http://www.humanrights.gov.au/social_justice/native_title/index.html#su…

93.
This model is discussed in Resourcing Indigenous Development and Self-Determination,
a scoping paper prepared by the Australia Institute for ATSIC National
Policy Office, Strategic Development Team, www.atsic.gov.au/issues/resourcing_self_determination/Indigenous_Develo…,
23 November 2001

94.
Commonwealth Grants Commission, Report on Indigenous Funding 2001,
Commonwealth of Australia, 2001, paragraph 21, pxviii

95.
ibid,paragraph 21, pxix

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Native Title Report 2001: Chapter Two: Resourcing Equality