Native Title Report 2011: Chapter 4: Options for addressing lateral violence in native title

Native Title Report 2011

Chapter 4: Options for addressing lateral violence in native title

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• 4.1 Introduction
• 4.2 Naming lateral violence
• 4.3 Legislative and policy review and reform
  • (a) The National Human Rights Framework
  • (b) Constitutional Reform
  • (c) Native Title Reform
• 4.4 Culturally relevant frameworks
  • (a) Development with culture and identity
  • (b) Cultural safety and security
  • (c) Cultural competence
  • (d) Culturally appropriate decision-making and conflict management
  • (e) Creating strong and sustainable governance
• 4.5 Conclusion

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4.1 Introduction

This Chapter considers options for addressing lateral violence in
environments that concern our lands, territories and resources. Although this is
the beginning of the conversation, the Chapter aims to give Aboriginal and
Torres Strait Islander peoples and communities some ideas about how to address
lateral violence through the establishment of strong structural foundations and
principles. It also seeks to assist governments to help us confront this problem
by reinforcing these structures through legislation and policy.

At the outset of this Chapter, I want to reiterate that the Native Title Act
itself does not create lateral violence. Lateral violence occurs across all of
the issues we face on a daily basis, whether it is health, education and/or
housing; and it also exists in our political dealings and in our daily
interactions with each other. The Social Justice Report 2011 provides a
more detailed discussion on the broader experience of lateral violence and the
mechanisms that our communities have developed to address it.

However, I believe that native title is an important place to start this
conversation. Of all the areas that aim to address our disadvantage, the native
title system goes to the heart of providing redress for the impact of our
dispossession from our lands, territories and resources, and the destruction of
our cultures and our identities.

In my view, the way all stakeholders engage within the native title
system can encourage behaviours that result in lateral violence. As such, it is
critical that the Native Title Act and the operation of the native title system
are reinforced by human rights principles and ‘strengths based’
frameworks that aim to realise the full potential for our Aboriginal and Torres
Strait Islander peoples and our communities.

If we are able to reform the native title system in ways that help us to
address lateral violence, we are well on the way to transforming these issues
into positive outcomes.

While I argue that Aboriginal and Torres Strait Islander peoples need to take
direct responsibility for confronting lateral violence when it threatens to
consume our communities, this does not absolve governments or other stakeholders
of their responsibility to ensure that the potential for lateral violence is
minimised.

It is my view that we all have a role to play to ensure that we have
an environment that empowers rather than disempowers Aboriginal and Torres
Strait Islander peoples.

I believe that governments and stakeholders, particularly the mining
industry, who work with our communities in the native title environment cannot
address lateral violence for us; but they can minimise their contribution to
creating environments for lateral violence to flourish, and can facilitate and
empower communities to address and overcome the challenges that promote lateral
violence. The role of governments and others working with us is to foster the
principles of the Declaration; and in particular, our choice, participation and
control of our communities.

Aboriginal and Torres Strait Islander peoples need to be empowered to become
the agents of our own change. The Department of Finance’s Strategic
Review of Indigenous Expenditure informatively argued:

[E]vidence points to the benefits flowing from a genuine partnership with
Indigenous communities, adopting a ‘strengths based’ approach, and
building on the inherent leadership and wisdom within communities to create a
new spirit for change and the embracing of essential reforms to personal
behaviour.^[1]

Aboriginal and Torres Strait Islander peoples and communities need to lead
this process and insist that structures developed to advance our situation are
built on solid foundations that cannot be weakened or destroyed by lateral
violence.

In applying a human rights-based approach, there are a number of options for
addressing lateral violence in relation to our lands, territories and resources.
I note that these approaches can also be applied more broadly across other areas
of social policy as demonstrated in the Social Justice Report 2011.
These include:

• naming lateral violence

• legislative and policy review and reform

• culturally relevant frameworks.

I discuss each of these options
for addressing lateral violence in this Chapter.

This Chapter also considers options for governments to provide support to
Aboriginal and Torres Strait Islander peoples to address lateral violence played
out in native title processes. These suggestions are applicable to other
stakeholders working with Aboriginal and Torres Strait Islander peoples in the
native title environment, particularly the mining sector.

Specifically, it demonstrates how the Declaration can be applied as a human
rights framework to guide the creation and maintenance of a culturally safe and
secure environment where Aboriginal and Torres Strait Islander communities can
reach their full potential.

Some communities and their native title representative organisations are
starting to put in place structures that help to protect them from the effects
of lateral violence in the native title environment. This Chapter will case
study this positive work that is occurring in Aboriginal and Torres Strait
Islander communities to address lateral violence.

4.2 Naming
lateral violence

While lateral violence is a new concept to many people, the behaviours that
constitute lateral violence have been devastating our families, communities and
organisations for many years.

Naming it is the first step towards exerting control over lateral violence.
It is also a way of exercising agency and responsibility for our communities.
Naming lateral violence becomes an action of prevention. In the native title
environment, confronting lateral violence is the only way to ensure that it has
minimal impact on our peoples.

Addressing lateral violence means confronting those in our communities and
those who work with our peoples who perpetrate lateral violence. I discuss later
in this Chapter the concepts of cultural safety and cultural security that can
support our communities to confront lateral violence; and the role our
communities, governments and external stakeholders can play in creating such an
environment.

While this will be a challenge, particularly in our communities that have
suffered extensive devastation as a result of colonisation, facing up to tough
issues is not new for Aboriginal and Torres Strait Islander communities. There
are many instances of communities confronting problems like family violence or
alcohol abuse with great courage. The benefits may take time to become apparent.
However, over time this new way of doing things will become a community standard
and value.

In taking this step, our people must be supported by governments and external
native title stakeholders to ensure the system does not facilitate lateral
violence. External stakeholders should engage in good faith and not use the
native title system to fracture and divide communities in order to progress
their development priorities.

(i) Raising awareness of lateral violence

Naming lateral violence is essentially a process of education. It is about
giving our communities:

• the language to name lateral violence behaviour

• the space to discuss its impact

• the tools to start developing solutions.

It is ironic that while
native title involves processes of mediation and negotiation, lateral violence
is still a significant barrier to achieving native title outcomes. Stakeholders
participating in native title processes must be conscious that the native title
system provides the perfect platform for lateral violence to surface because it
brings people to the table – possibly for the first time – who are
living on a daily basis with the impacts of colonisation. The native title
process requires that native title claimants justify their involvement in the
process and this can result in the exclusion of some people to participate.

The native title system must foresee when lateral violence is likely to occur
and be equipped to identify it and address it. This means that engaging in
native title processes requires solid preparation and robust frameworks to
accommodate the potential for disagreement and conflict, and to enable people to
work through this conflict. I discuss further below what these frameworks might
look like.

It must be acknowledged that this process will need to address the historical
as well as the contemporary issues that arise as a result of pursuing our native
title rights to our lands, territories and resources. This will require the
space and time to deal with these issues and the development of appropriate
tools to facilitate solutions in the native title process and to manage future
issues that may lead to lateral violence.

4.3 Legislative and policy review and reform

Legislative reform and policy review will assist Aboriginal and Torres Strait
Islander communities to address lateral violence by creating structures that
promote healthy relationships within our communities and with external
stakeholders. These structures should include a strengths based approach that is
informed by human rights standards and applied to both governments and
communities.

The Attorney General’s Department has progressed a number of native
title reforms to move towards a more flexible approach that encourages
negotiated outcomes and discourages litigation and adversarial approaches.
However, it is my view that we cannot simply reform the native title system in
isolation to the broader legislative and policy framework and hope that this
will fix the native title system. In order for the native title system to be as
effective as possible, the legislative and policy framework within which it
exists must also support its operation.

This means that native title reform must incorporate our human rights
obligations as set out in the Declaration and the Australian Constitution. The
native title system sits within the framework of the Declaration and
Constitution and alongside a wide range of other policy and legislative
platforms that need to operate simultaneously to ensure the best possible
outcomes for our peoples.

On 27 January 2011, Australia appeared before the Human Rights Council
Universal Periodic Review (UPR).^[2] The Human Rights Council recommended that Australia revise its Constitution,
legislation, public policies and programs to enable the full implementation of
the United Nations Declaration on the Rights of Indigenous
Peoples.^[3]

We currently have three opportunities to progress legislative and policy
reform that would respond to this recommendation and significantly improve the
operation of the native title system. These are to:

• ensure that the unique and inherent rights of Aboriginal and Torres Strait
  Islander peoples are protected under the National Human Rights Framework

• reform the Australian Constitution to recognise Aboriginal and Torres Strait
  Islander peoples and prohibit discrimination on the basis of race

• maintain efforts aimed to create a just and equitable native title
  system.

The National Human Rights Framework provides the overarching
structure, while constitutional reform provides a foundation for the effective
operation of the native title system. Reforming the native title system will
increase its potential to deliver positive outcomes and ensure that it operates
to advance the aspirations of Aboriginal and Torres Strait Islander peoples
across Australia.

Legislative and policy frameworks that promote an environment where
Aboriginal and Torres Strait Islander peoples empower themselves are essential
to our active participation in the life of the Australian nation. They provide
the structural supports necessary for Aboriginal and Torres Strait Islander
peoples to realise the full potential of our inherent rights as the first
peoples of Australia. These structural supports also contribute to creating a
safe and secure environment that does not stimulate conflict or foster
behaviours that result in lateral violence.

(a) The National Human Rights Framework

In Chapter 3, I argue that the Declaration is a key tool to advance the human
rights of Aboriginal and Torres Strait Islander peoples and to address lateral
violence.

The Australian Government is currently putting in place the structures
necessary to build a strong human rights culture. In April 2010, the Federal
Attorney-General launched Australia’s Human Rights Framework. This
Framework forms part of the National Human Rights Action Plan and affirms
the Government’s commitment to promoting awareness and understanding of
human rights in Australia.^[4]

The development of Australia’s Human Rights Framework also
provides the Australian Government with the perfect opportunity to work with
Aboriginal and Torres Strait Islander peoples to review and where necessary,
reform all relevant legislation and policies to ensure their compliance with
human rights standards and the Declaration.

(b) Constitutional Reform

Aboriginal and Torres Strait Islander peoples are not recognised in the
Australian Constitution as our nation’s first peoples. As such the
Constitution offers no recognition or protection of our rights to our lands,
territories or resources.

While the National Apology to the Stolen
Generations^[5] provided a formal
apology to Aboriginal and Torres Strait Islander peoples for detrimental laws
and policies that resulted in the forced removal of children from their
families, communities and country; reforming the Constitution will formalise
this acknowledgement and provide a key cornerstone to address the historical
‘truth’ of our nation. In itself, this acknowledgement is so
powerful as to curb lateral violence in our communities because it reinforces
our cultural identities both as Aboriginal and Torres Strait Islander peoples
and as Australians.

I congratulate the Australian Government and all other political parties who
have embarked on this journey of constitutional reform to recognise Aboriginal
and Torres Strait Islander peoples as the first peoples of our nation. I believe
that these reforms to the Australian Constitution will go some way to stem the
ongoing impacts of colonisation and lateral violence by:

• affirming our place as the first peoples of Australia and recognising the
  untruth of terra nullius in our founding document

• addressing a history of exclusion of Aboriginal and Torres Strait Islander
  peoples

• improving the sense of self-worth and social and emotional well-being of
  Aboriginal and Torres Strait Islander peoples as individuals, as communities and
  as part of the national
  identity^[6]

• changing the context in which debates about the challenges faced by
  Aboriginal and Torres Strait Islander communities take place

• improving relationships between Aboriginal and Torres Strait Islander
  peoples and non-Indigenous Australians.

This process also provides
us with an opportunity to address the provisions of the Constitution that permit
discrimination on the basis of race. The right to live free from discrimination
is a fundamental human right that most Australians take for granted.

The Constitution currently offers no protection of our right to be free from
discrimination on the basis of our race. Aboriginal and Torres Strait Islander
peoples are particularly vulnerable to this lack of protection. For example, the Racial Discrimination Act 1975 (Cth) (RDA) has been compromised on three
occasions: each time it has involved Aboriginal and Torres Strait Islander
issues, and on one occasion it has involved the Native Title
Act.^[7]

In order to address this inadequacy, constitutional reform is necessary to
improve the protection of Aboriginal and Torres Strait Islander peoples’
rights against discrimination.

Aboriginal and Torres Strait Islander peoples must be able to rely on the
Constitution to ensure that legislation cannot be passed and policies cannot be
implemented that are detrimental to our human rights including our right to be
free from discrimination. Further, as Australian citizens, we must be able to
rely on the Constitution to ensure that legislative and policy reform does not
diminish our rights.

(c) Native Title Reform

The Native Title Act provides the legislative framework for the operation of
the native title system.

The Mabo^[8] decision and the
subsequent Native Title Act corrected the untruth of terra nullius. Former Prime Minister of Australia, Paul Keating, recently reflected on his
role in the development of the Native Title Act and the original intent of the
native title legislation:

[T]he Native Title Act went a substantial way in settling the fundamental
grievance of indigenous Australia; the brutal dispossession of their lands and
the smashing of their ways of life at the hands of an alien imperial power ... I
saw the opportunity of the native title route as a modality in dealing with and
settling unresolved questions of indigenous land justice in this country ... One
of its main objects is to ‘provide for the recognition and protection of
native title’; that is, those rights and interests finding their origin in
indigenous law and custom; not finding those rights and interests arising solely
or peculiarly from the Act
itself.^[9]

Unfortunately, the Native Title Act has since been transformed to a
significantly diminished recognition of native title and no longer reflects this
original intent.

Following the Mabo decision that a form of native title
exists under the common law, the Australian Government committed to three key
policy responses:

• To pass the Native Title Act to offer the protection of statute law
  to native title and set out processes for future dealings in native title
  land.

• To introduce legislation to establish a National Aboriginal and Torres
  Strait Islander Land Fund and an Indigenous Land Corporation to acquire and
  manage land for dispossessed Aboriginal and Torres Strait Islander peoples.

• To establish a package of social justice measures for Aboriginal and Torres
  Strait Islander peoples, in acknowledgement of continuing disadvantage and
  dispossession.^[10]

While
the first two responses have been delivered to varying degrees, the social
justice measures are yet to be developed.

With regard to the first two policy responses, I have longstanding concerns
that amendments made to the Act since its commencement have significantly
limited the benefits that could be achieved by native title holders, and that
the objectives of the Indigenous Land Corporation have not been met and require
review. I also believe that both of these policy responses have contributed to
lateral violence in communities, with native title claimants constantly required
to negotiate their rights within frameworks that are designed to prioritise the
interests of governments and industry.

Many Aboriginal and Torres Strait Islander peoples also feel that the native
title system has not delivered the intended outcomes for our lands, territories
and resources. In particular, many people have the view that native title
delivers limited meaningful recognition of the rights, interests, obligations
and responsibilities they hold in their country under the traditions and customs
of their own society.^[11]

As governments begin to understand that our relationship to our lands and
resources is interconnected to our overall physical, spiritual and cultural
well-being, the need to return to the original intent of the Native Title Act
should become more apparent. Native title stakeholders have consistently raised
the requirement to create a just and equitable native title system. I have also
advocated the need for a holistic review of the operation of the native title
system to ensure that it complies with international human rights
standards.^[12]

In the following section I discuss how the system can be reformed to
strengthen the effective participation of Aboriginal and Torres Strait Islander
peoples. I also argue that reinforcing the native title system with social
justice measures will ensure that Aboriginal and Torres Strait Islander policy
is developed in a holistic way to close the gap and contribute to overcoming
disadvantage across all social indicators.

(i) Reforming the native title system

The recognition of native title can empower traditional
owners.^[13] Former Federal Court
Justice Murray Wilcox has commented that:

A court decision to recognise native title always unleashes a tide of joy. I
believe this has nothing to do with any additional uses of the land ... rather,
the fact that a government institution has formally recognised the claimant
group’s prior ownership of the subject land and the fact of its
dispossession. That recognition is what Aboriginal people are
seeking.^[14]

However, as I discuss in Chapter 2, establishing our claims to native title
involves extensive requirements for proving our identity and connection to
country. In the shadow of the dispossession referred to by Justice Wilcox, it is
often these questions of ‘who we are’ that can exacerbate lateral
violence in our communities.

Many people and organisations have commented on the extensive requirements
for us to prove our native title. For example, as I note in Chapter 2, the
Committee on the Elimination of Racial Discrimination expressed regret that as a
result of ‘the persisting high standards of proof required for recognition
of the relationship between indigenous peoples and their traditional lands, ...
many are unable to obtain recognition of their relationship to land (art.
5)’.^[15]

The native title reforms that I and previous Social Justice Commissioners
have recommended go some way to addressing these issues.

I note that the Australian Government has identified native title reform as a
priority and has taken some steps to address a range of issues particularly
focused on economic development.^[16] To date, however, substantial reform that addresses the broad inadequacies of
the system that concern our culture and identity eludes us. These reform
initiatives include:

• improving the recognition of traditional ownership

• the current burden of proving native title

• the operation of the law regarding extinguishment

• options for advancing negotiated settlements (including the potential for
  alternative, comprehensive settlements).

As these options for reform
have been detailed extensively in the previous Native Title Reports, it is
unnecessary to repeat these details in this
Report.^[17] Some of these reform
options are also canvassed in Senator Siewert’s Native Title Amendment
(Reform) Bill 2011, which I discuss in Chapter 1 and Appendix 2.

I am of the view that these native title reforms would have a positive effect
on addressing lateral violence in our communities. The reforms that may be of
particular benefit include reversing the onus of proof, providing more flexible
approaches to connection evidence and exploring options for negotiating
alternative settlements.

In Chapter 1, I call for a review of the Native Title Act to bring it in line
with international human rights standards. This should incorporate our
collective goal to achieve a ‘fair, independent, impartial, open and
transparent process’ that acknowledges our traditional laws and customs to
our lands, territories and
resources,^[18] and eases the burden
that comes with the requirements to prove our identity and connection to
country.

(ii) Reinforcing the Native Title System – the
Social Justice Package

The Social Justice Package was the third element of the Australian
Government’s response to the Mabo decision.

The Social Justice Package was promised by Prime Minister Keating in his
second reading speech on the Native Title Bill. In 1994, the then Minister for
Aboriginal and Torres Strait Islander Affairs, Robert Tickner, told the
12^th Session of the United Nations Working Group on Indigenous
Populations:

The social justice package presents Australia with what is likely to be the
last chance this decade to put a policy framework in place to effectively
address the human rights of Aboriginal and Torres Strait Islander people as a
necessary commitment to the reconciliation process leading to the centenary of
Federation in 2001.^[19]

The Australian Government sought the views of Aboriginal and Torres Strait
Islander peoples on what the Social Justice Package might look like. In
particular, the Government expressed a ‘desire for constructive and
realistic proposals to increase the participation of indigenous peoples in
Australia’s economic life, to safeguard and develop indigenous cultures,
to help develop a positive community consensus and to contribute to lasting
reconciliation’.^[20]

Text Box 4.1: The Social Justice Package[21]

The Aboriginal and Torres Strait Islander Commission reported to the Australian Government in 1995 that a social justice package should include: major institutional and structural change, including constitutional reform and recognition, regional self-government and regional agreements, and the negotiation of a Treaty [or national agreement] or comparable document overcoming inequities and inefficiencies in service delivery, including the achievement of genuine access and equity in Commonwealth mainstream programs and revised Commonwealth-State funding arrangements protection of rights through such means as recognition of customary laws, protection of intellectual and cultural property, and recognition of Indigenous rights practical measures to enhance opportunities for economic development and to achieve other desirable objectives such as improved public awareness of Indigenous cultures and Indigenous issues. These proposals fall into five major themes: the rights of Aboriginal and Torres Strait Islander peoples as citizens recognition of their special status and rights as Indigenous Australians and the achievement of greater self-determination for Aboriginal and Torres Strait Islander peoples ensuring that Indigenous Australians are able to exercise their rights and share equitably in the provision of Government programs and services the protection of the cultural integrity and heritage of Indigenous Australians measures to increase Aboriginal and Torres Strait Islander participation in Australia’s economic life.

Despite ongoing calls from the Aboriginal and Torres Strait Islander
community, the Social Justice Package is still to be delivered.

The Social Justice Package is essential to completing the promise of the Mabo decision as it provides the structural supports necessary for the
effective operation of the Native Title Act and the Land Fund. However, the
Social Justice Package is also essential to addressing the effects of
colonisation that have resulted in the permanent dispossession of lands and the
denial of access to, and protection and maintenance of culture and heritage as a
result of removal policies.^[22]

As I discuss in Chapter 3, within Aboriginal and Torres Strait Islander
communities we have been divided into the ‘have’s and the have
not’s’. This is not only relevant to the resources that come from
our lands and territories but also relates to our cultures and our
knowledge’s, with some of us perceived to be ‘more Aboriginal’
than others based on the amount of cultural information we have about ourselves
and our families. This disparity within our communities is a source of conflict
that results in lateral violence.

I believe that a Social Justice Package that protects our human rights is
essential to the full exercise and enjoyment of our rights to our lands,
territories and resources. A Social Justice Package must aim to strengthen all
areas of policy affecting Aboriginal and Torres Strait Islander peoples,
including the Closing the Gap policy platform and the Council of Australian
Government’s targets. It must also ensure that the work of service
delivery agencies is appropriately co-ordinated and does not create additional
pressure on Aboriginal and Torres Strait Islander communities. And it must
enable Aboriginal and Torres Strait Islander communities to build capacity and
effectively access and manage the benefits and opportunities available to them.

Holistic efforts such as these empower communities. I view empowerment as the
key to addressing lateral violence.

The Government’s focus on creating a strong human rights culture in
Australia through the National Human Rights Framework provides a great
opportunity for the Australian Government to deliver on the promise of the
Social Justice Package.

4.4 Culturally relevant frameworks

Ensuring that the native title system is just, transparent and accountable at
all levels (from government through to the community) is essential to reducing
the potential for lateral violence.

In order for native title to be successful, it must also be culturally
relevant. If it is not, the native title system will continue to operate in ways
that exclude and divide Aboriginal and Torres Strait Islander peoples and
communities. We will continue to be disempowered and struggle amongst ourselves
to define our own destinies. This is counter-productive on all fronts.

It has been demonstrated on numerous occasions that a one-size-fits-all
policy approach does not deliver desired outcomes and inhibits the accommodation
of differences that exist within Aboriginal and Torres Strait Islander
communities.

Whether commencing a native title claim process, negotiating an ILUA or
establishing a PBC, we need appropriate frameworks for participation,
decision-making and conflict management in order to prevent behaviours that
result in lateral violence. These preventative measures need to be negotiated
with our communities as early in the process as possible:

... at the outset of any native title agreement-making process, there is a
need for the negotiation of an agreed decision-making and dispute management
framework amongst the Indigenous parties as a prerequisite to the successful
implementation and sustainability of
agreements.^[23]

These measures assist those involved to set up guidelines for engagement,
identify historical and contemporary issues and possible points of contention,
and establish protocols for managing conflict that can lead to lateral violence
behaviours.

A number of NTRBs/NTSPs noted in their responses to me that they enact a Code
of Conduct to encourage respect to all persons and provide clear guidelines for
behaviour at native title meetings. The Code of Conduct used by the Yamatji
Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC) is at Text Box 4.2.

Further, McAvoy and Cooms verify that corporate entities that reflect
‘the interests of the native title group and its claims to nationhood can
facilitate lasting change’:

Such a corporation can manage its own cultural heritage matters, manage
trusts into which compensation payments are made, hold shares, and be the party
which represents the Traditional Owner interests in regional intra-Indigenous
and external agreements. Additionally, it can hold land, engage in commercial
contracts, participate in training schemes and, where required, be the
registered native title body corporate under the NTA...

Whatever the future holds for the individual native title applications in the
region, the future of these Indigenous nations is inexorably bound to the
ability of each nation to manage its own
affairs.^[24]

Text Box 4.2: Code of conduct for native title claim groups working with Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (YMBBMAC)

This Code of Conduct recognises that: Claim Group members and YMBBMAC staff have a right to safety, dignity and respect at all times. This is true even though the native title process may involve strong emotions and difficult decisions. YMBBMAC lawyers have professional obligations which they must carry out. These obligations arise as a result of legislation, Professional Conduct Rules and various Codes of Conduct. The best outcomes are achieved when people: work together respectfully, show a unified front when negotiating with other parties, and accept the Claim Group’s informed decisions, once they have been lawfully made under the group’s decision making process. The Claim Group and each of its members agree to the following obligations when interacting with YMBBMAC staff (including lawyers, anthropologists, heritage officers and administrative staff): No threats to YMBBMAC staff or Claim Group members Threats, violence, racial slurs, abusive language and intimidating behaviour are not acceptable and will not be tolerated by YMBBMAC staff. Claim Group members will not threaten or intimidate other Claim Group members or YMBBMAC staff for any reason, such as to influence decisions, heritage surveys or meeting outcomes. Claim Group or YMBBMAC staff can exclude members, vary or end meetings Claim Groups or YMBBMAC staff may exclude members from meetings, decide to end a meeting, or vary the way meetings are held (eg, holding ‘split’ meetings or secret ballots): if a member of the Claim Group is using threats, violence, abusive language, intimidation or other unacceptable behaviour; or if a member of the Claim Group is behaving in an unreasonable way that is stopping a meeting’s progress. YMBBMAC staff may decide to end a meeting if they feel that lawyers advising the Claim Group or Working Group are being prevented from carrying out their professional responsibilities. Being on time (Punctuality) Claim Group members will make all reasonable efforts to arrive on time at community meetings, Working Group meetings and other appointments. Meetings will start within 15 minutes of the planned starting time, provided that any required quorum has been reached, even if some members of the group have not arrived. Minimum number of people at a meeting (Quorum) Some claim groups, in considering what their agreed decision making process will be, may decide that a minimum number of Claim Group members must be present at a meeting before the business of a meeting can happen (this number is known as a “quorum”). Other claim groups may decide that a quorum is not needed or is culturally inappropriate. If a Quorum is required for Working Group meetings, the Claim Group will determine this at a Claim Group meeting (community meeting). Any quorum should make sure there are enough people present to speak with authority for all parts of country, and the Claim Group as a whole. Acting on someone else’s behalf (Proxies) Some claim groups may allow a member to select another person (a “proxy”) to attend meetings, cast votes or make decisions if the member is not there. Other claim groups may decide that proxies are not needed or are culturally inappropriate. A proxy can only act in the place of the member they represent. If a proxy is chosen, but the member attends the meeting anyway, only one of them can vote. A member can only appoint a proxy in writing, so that YMBBMAC staff are sure that the proxy has the authority to participate in making decisions. Members’ Conflict of Interest If a member of a Working Group or Claim Group has a conflict of interest, the member will tell the meeting about it (declare it). (An example of a conflict of interest is if a member works for a mining company, and the meeting is discussing an issue to do with that mining company.) The meeting will then decide if that member should: be excluded by being asked to leave the room, be allowed to stay as an observer only, be allowed to participate in the discussion but not vote, or be allowed to participate in the discussion and vote. Confidentiality of information Information that is not already in the public domain (including discussions, presentations and documents used in meetings, heritage surveys and connection work) is to be treated as confidential between Claim Group members and YMBBMAC staff, unless disclosure is permitted by law (including the Privacy Act 1988 (Cth) as amended from time to time). Claim Group members must not breach that confidentiality, such as by sharing that confidential information with others (for example, talking about it to a mining company that they work for).

Below, I discuss five key elements necessary for creating frameworks that are
strengths based and can assist us to address the damaging effects of lateral
violence:

• development with culture and identity

• cultural safety and security

• cultural competence

• culturally appropriate conflict management/dispute resolution

• creating strong and sustainable governance.

(a) Development with culture and identity

Development with culture and identity requires that we accommodate the
diversity of experience and need within Aboriginal and Torres Strait Islander
communities. It also requires that all legislation, policies and programs
reflect the local needs and aspirations of affected communities:

Holistic concepts of development have to consider the reality and struggle
that indigenous peoples experience in order to live in a market-driven society.
Development policies, institutions and systems established by States must allow
for diversity and plurality and the coexistence of indigenous governance,
economic, social, education, cultural, spiritual and knowledge systems and
natural resources with systems adopted by the State. This is part of indigenous
peoples’ right to
self-determination.^[25]

The inclusion of culture and identity into development frameworks is
essential to addressing lateral violence. It affirms the need to ensure that all
processes designed to promote our development are framed and reinforced by
cultural integrity and cultural self-determination; and seeks to build on
collective rights, security and greater control and self-governance of our
lands, territories and resources.

The Native Title Act was established to reaffirm and accommodate the cultural
relationships Aboriginal and Torres Strait Islander peoples have with their
lands, territories and resources. However, a critical point of conflict for
traditional owners is the need to balance the cultural, social, economic and
environmental elements of development that arise from the native title system.
This conflict is facilitated by governments and industry that focus heavily on
economic outcomes and ignore the other elements essential for our well-being
including our social, cultural, political and spiritual systems.

The United Nations Permanent Forum on Indigenous Issues recently conducted a
study on Indigenous people’s development with culture and identity. The
Report on the study highlighted that:

The dominant models of development have compromised indigenous peoples in
every aspect of their daily lives, including through the imposition of large
infrastructure projects on their lands without their consent. This has generated
poverty and severe inequality, massive environmental devastation and human
rights violations. The serious rupture to the fabric of social life in
indigenous communities as manifested in family breakdowns, alcoholism, and
suicide among young people has been fuelled further by this model. In addition,
it ignores indigenous peoples’ own governance, economic, social,
education, cultural, spiritual and knowledge systems and the natural resources
that have sustained them through the
generations.^[26]

The Permanent
Forum argued that development models based purely on economic advancement fail
‘to promote the cultural, political, social, ecological and economic
integrity of indigenous peoples and their
communities’.^[27]



As I
highlight in Chapter 3, a key mechanism provided by the native title system is
the ability to negotiate ILUAs or native title settlement agreements. Agreement
making gives native title holders a seat at the table and opens opportunities to
negotiate a range of development outcomes that meet our local needs and
aspirations. These mechanisms must be flexible enough to incorporate our social,
cultural, spiritual, environmental and economic development requirements.

The Right People for Country project has developed a set of core
principles that are required for Indigenous agreement making in Victoria. Text
Box 4.3 sets out and provides a brief explanation of these core principles.

Text Box 4.3: Report of the Right People for Country Project Committee: Indigenous agreement making[28]

The Right People for Country Project identifies the following core principles that are required for Indigenous agreement making in Victoria: Indigenous-led participatory approach The process for agreement making in the Right People for Country Project is ‘Indigenous-led’, which is consistent with the principles of self-determination and empowering community decision-making that are set out in the Declaration.[29] This approach enables Traditional Owners to make their own decisions about group composition and extent of country. Education and engagement The Right People for Country Project identifies the need to build understanding and trust around the policies and processes of both Indigenous communities and governments. This includes relevant and timely education programs and communication strategies, including: information on legal issues policy context project parameters agreement making processes, such as roles and responsibilities of groups and potential outcomes. Involvement of Indigenous people in the management and delivery of native title services increase Indigenous engagement with the service. This involvement embeds Indigenous knowledge, expertise and perspectives within the service and reduces the perception of the service as an imposed process.[30] Local advocates can promote Indigenous agreement making processes and disseminate information. Resources to support traditional owner participation and preparation Support is required for Traditional Owners to participate in agreement making. Indigenous agreement making is part of the broader process of settlement negotiations and may not be the only process a group is involved in. Currently, different resources are available according to what process the Traditional Owners are involved in. Alignment of processes and coordination of stakeholders will create more efficient use of resources. Preparation is essential to build relationships and understanding of issues. Facilitator agreed to by the parties In Indigenous agreement making, Traditional Owner groups must agree to the facilitators and may select a facilitator known to and respected by the parties. Traditional owners should also be supported to explore perceived bias or conflict of interest. Traditional Owners design process Traditional Owner groups express frustration that non-Indigenous information and systems are imposed. Participation of Traditional Owners in the design of agreement making processes must be settled prior to consideration of issues in a dispute. While existing decision making structures are important and should be incorporated into all stages of agreement making, Traditional Owner groups should be supported to develop agreement making processes that embed respect for cultural authority and practice. This acknowledgment of Indigenous knowledge systems may include traditional law and customs such as kinship protocols, respect for Elders, Traditional Owners and use of ceremony. It may involve meeting on alternating parties’ country or visiting country the day before a meeting to undertake ceremony together. Matching of process and support options Mediation is only one process option in agreement making; parties may require capacity building in negotiation skills, conflict management and community facilitation. The Right People for Country Project aims to use a range of process and support options that are consistent with Indigenous-led participatory approach and tailored to group needs. Use of research The Right People for Country Project, in partnership with relevant stakeholders, will develop guidelines for the use of research in Indigenous agreement making. This will focus on research as a tool to support but not to determine agreement making and promotes Traditional Owners’ understanding and access to research. Confidentiality and transparency Confidentiality in mediation with Traditional Owner groups is complex, therefore confidentiality protocols should be negotiated between Traditional Owner groups upfront. The Right People for Country project will explore a range of mechanisms to provide legal protection to Traditional Owner groups in agreement making, such as contractual agreements, confidentiality undertakings and statutory legal protections. Building relationships Restoring and building relationships is critical to implementation of outcomes. The meaning and importance of people’s primary connection to country and affiliated/multiple clans needs to be considered in relationship building. It is beneficial to negotiate agreements that determine how groups will conduct their relationship with each other in the future. Free, prior and informed consent The Declaration requires states to obtain free, prior and informed consent before adopting and implementing legislative measures that affect Indigenous people. Implementing free, prior and informed consent will require reassessment of timeframes to ensure sufficient time for Indigenous consultation and decision making. Comprehensive information about decision making processes and substantiative issues must be provided to the parties.

My predecessor, Tom Calma highlighted the Argyle Participation Agreement
(Argyle Agreement) in his Native Title Report 2006. This agreement making
process was underpinned by similar principles to those outlined above.

I believe the Argyle Agreement confirms that when culturally relevant
frameworks that respect culture and identity are developed in conjunction with
native title claimants, positive outcomes that discourage conflict and encourage
mutual understanding of each other’s priorities can be achieved.

This case study is particularly relevant because the families involved were
struggling with lateral violence within their communities as a result of
historical negotiations with the mining
company.^[31] However, they came
together and worked through these issues to achieve what is regarded as a
positive agreement. While I have not gone back to review the progress of the
Argyle Agreement, it continues to be promoted as a best practice model.

Text Box 4.4: The Argyle Participation Agreement[32] – Part 1

The Argyle Diamond Mine Participation Agreement (the Argyle Agreement) is a registered Indigenous Land Use Agreement (ILUA) between Traditional Owners of the East Kimberley region of Western Australia, the Kimberley Land Council and Argyle Diamond Mine (Argyle Diamonds).[33] The ILUA area covers 797.5 square kilometres and is located within the Shire of Wyndham-East Kimberley and the Wunan Regional Council, 100 kilometres south west of Kununurra. The communities affected by the mining include those at Warmun, Doon Doon, Glen Hill, Bow River and Crocodile Hole. The Argyle Diamond Mine covers two significant story places for the traditional owners of this region, Barramundi Gap and Devil Devil Springs. The traditional owners have a responsibility to protect and maintain these sites of significance and ceremony. It is the responsibility of the Mirriuwung and Gidja people, particularly the women, to protect their ancestor the Barramundi, who will in turn take care of them. The Ngarranggarni (sometimes referred to as the Dreaming) is a living belief system that establishes continuity between past, present and future. It continues to inform the day to day activity of the Mirriuwung and Gidja peoples and their relationships to country.[34] The preparations for negotiation included a process for recognition and co-operation between two systems of law, Western law and Indigenous law. The mediation and negotiation processes guided by the Native Title Act and Indigenous Land Use Agreement regulations met the requirements of Western law, while the conduct of particular ceremonies at the mine site met the responsibilities of Indigenous traditional law. The parties to the negotiations recognised that there were implicit power imbalances between the mining interests and the traditional owner interests. Argyle Diamonds endeavoured to redress the imbalance by: ensuring that communication was tailored to the needs of the traditional owners taking traditional owners on tours of the mine, including the underground mine developing different visual strategies to assist with explanations of the impact of the mining activity on their country using translators throughout to ensure that everyone could follow and participate in the negotiations preparing all key documents in a format that included plain English interpretations. The traditional owners also recognised that representatives of Argyle Diamonds required interpretations of the traditional processes of agreement making and traditional law of the region. In a reciprocal process, the traditional owners: provided the mining company representatives with information about their laws and customs performed ceremonies to ensure that the mining operation could be conducted free from danger and interruption by the local Dreaming beings and spirits of the ‘old people’.[35] The legacy of the Argyle Agreement is that it has provided the traditional owners with a range of social, economic and development opportunities. These opportunities are managed and decided by the traditional owners on their own terms. When they (traditional owners) were engaging with the mine they did so on their own terms. By performing ceremonies and reinforcing their relationships to the land and the Dreaming in the land, they were actually using very critical ways of engaging with the mining company that reinforced their difference, that ensured that they were not lost in a blended amorphous relationship. They really wanted the mining company to know that we are different from you, we have a very different way of being in the world, but we can be in this world with you. What I think is so exciting about Argyle is that those Aboriginal people who were engaging at that level, within their own cultural framework were never compromised in their relationship with the mine.[36]

(b) Cultural safety and security

A key element of the Argyle Agreement was the care taken to ensure that
cultural safety and security were provided throughout the negotiation
process.

The concepts of cultural safety and security can provide the impetus for the
cultural renewal and cultural resilience that is needed to challenge lateral
violence. This is a key step in implementing the human rights framework to
address lateral violence.

Cultural safety encapsulates the relationships that we need to foster in our communities, as well as the need for cultural renewal and revitalisation. Cultural safety is diminished through a lack of respect and recognition of the positive aspects of Aboriginal and Torres Strait Islander culture and its centrality in creating a sense of meaning and purpose for Aboriginal and Torres Strait Islander peoples. For all Indigenous peoples, culture is essential for spiritual, emotional and social growth and maintenance and provides the ‘spear and shield’; it provides our resistance and resilience.[37] Cultural security, on the other hand, speaks more to the obligations of those working with Aboriginal and Torres Strait Islander communities to ensure that there are policies and practices in place to guarantee that all interactions adequately meet cultural needs. Cultural safety and security requires the creation of: environments of cultural resilience from within Aboriginal and Torres Strait Islander communities cultural competency by those who engage with Aboriginal and Torres Strait Islander communities.

(i) Cultural safety

The concept of cultural safety is drawn from the work of Maori nurses in New
Zealand and can be defined as:

[A]n environment that is safe for people: where there is no assault,
challenge or denial of their identity, of who they are and what they need. It is
about shared respect, shared meaning, shared knowledge and experience of
learning, living and working together with dignity and truly
listening.^[38]

For Aboriginal and Torres Strait Islander peoples, a culturally safe
environment is one where we feel safe and secure in our identity, culture and
community.

Cultural safety can be conceived as re-claiming cultural norms and creating
environments where our communities are able to become achievers and
contributors.^[39] Revitalising our
culture and renewing cultural norms within our communities brings resilience and
can prevent lateral violence.

The idea of cultural safety envisages a place or a process that enables a
community to debate, grapple with and ultimately resolve the contemporary causes
of lateral violence without fear or
coercion.^[40]

The native title process and particularly mediation and negotiation processes
provide us with opportunities to have open and frank discussions about issues
concerning us. While these discussions may not seem relevant to external
stakeholders, these issues must be addressed in order to progress negotiations
positively and effectively. However, appropriate frameworks must be established
and culturally safe environments must be provided to ensure that participants
can have these necessary discussions in an environment that does not foster
lateral violence.

(ii) Cultural security

Cultural security is subtly different from cultural safety in that it imposes
a stronger obligation on those that work with Aboriginal and Torres Strait
Islander peoples to move beyond ‘cultural awareness’ to actively
ensure that our cultural needs are met. This means our cultural needs are
addressed in policies and practices, and that all Aboriginal and Torres Strait
Islander peoples have access to services that address our cultural needs. This
needs to happen in all policy and service areas, not just in areas where there
are particularly culturally competent workers.

A culturally secure environment cannot exist where external forces define and
control cultural identities. The role for government and other stakeholders in
creating cultural safety is to ensure that our voices are heard and respected in
relation to our community challenges, aspirations and
identities.^[41] In this way,
cultural security is about government and stakeholders working with us to create
an environment for our community to exert ownership of ourselves. Through this
ownership we are empowered.

The experience of Queensland South Native Title Services (QSNTS) to manage
their native title case load with a significant number of overlapping claims
demonstrates the need for culturally secure frameworks that establish a protocol
for progress at all stages of the native title process.

Without these frameworks in place, NTRBs and NTSPs that have a legal
responsibility to represent native title holders as well as to manage the
conflicting interests of ‘aspiring claimants’ may unintentionally
incite lateral violence both within the communities they are working with and
also within their organisations.

Text Box 4.5 sets out the Legal Services Strategic Plan (LSSP) adopted by
QSNTS in 2005–2008 to provide a fair, transparent and culturally relevant
framework for resolving native title in the region. This included developing
clear objectives, principles and policies for managing native title claims, and
using land summits as a forum for mediating and negotiating overlapping native
title claim areas. Time was set aside to ensure that native title claim groups
within the QSNTS region were aware of the LSSP, the way it works and its
implementation across the region.

Text Box 4.5: Legal Services Strategic Plan – Queensland South Native Title Services (2005–2008)

By mid 2004, 29 of the 30 native title claims in the Queensland South region were wholly or partially subject to overlap with at least one other claim.[42] QSNTS, the NTSP for the region, implemented a Legal Services Strategic Plan (LSSP) to guide the resources and activities of the organisation. This provided a framework to enable traditional owners to see their native title processes to conclusion and a process to reduce the number of overlapping native title claims in the region. The LSSP approach created administrative sub-regions, introduced progressive stages for the preparation of claims and associated agreements, and allocated funds on the basis of the strength and merit of the native title claim. Objectives of the LSSP The primary objectives of QSNTS in adopting the LSSP were to: work with the traditional owners of southern Queensland to achieve the best results possible within the existing legislative framework and the available resources ensure that the available resources were allocated between claim groups in a fair and equitable manner ensure that QSNTS service delivery was transparent ensure that the traditional owners of southern Queensland were aware of the policies upon which decisions regarding the management of native title will be made by QSNTS ensure that the traditional owners of southern Queensland had access to information and understood their obligations and responsibilities arising from their participation in the native title process work with the traditional owners of southern Queensland to ensure any social infrastructure flowing from the native title process was complementary to the traditional owners’ broader aspirations.[43] Principles of the LSSP The underlying principles informing the preparation and adoption of this policy were that: litigation was the option of last choice the law was settled and failing amendment to the Native Title Act will not change greatly regarding connection the native title process was unlikely to deliver substantial areas of land or water to the traditional owners of southern Queensland the native title process may deliver mechanisms through which recognition and substantial empowerment could be achieved QSNTS was a service provider and not a funding provider.[44] LSSP policy framework The LSSP set out the way in which QSNTS performed and delivered its services in relation to: native title determination application case management future acts ILUAs.[45] The management of native title claims consisted of three stages: Stage One required satisfying Queensland Government requirements to ensure the ‘right people’ have been satisfactorily identified for the ‘right country’. Stage Two involved the preparation of comprehensive connection materials and negotiations with governments and other respondents to achieve negotiated outcomes. Stage Three involved litigated proceedings which are limited to claims that were able to satisfy the requirements of the FaHCSIA for special funding.[46] Land summits The cornerstone of the implementation of the LSSP was land summits within the sub-regions where the claimants met with the aim of either resolving overlaps at the summit or agreeing on a process that would lead to a resolution of the overlap.[47] While land summits were resource intensive, they were viewed as a critical step in the process to resolve overlaps between native title claims in the Queensland South region.[48] I refer to the extensive discussion by McAvoy and Cooms to explain the logistics, experiences and review of two land summits undertaken by QSNTS in 2005 and 2006;[49] however, the following points set out some ‘tips’ that helped to make land summit processes in the QSNTS region successful for the native title applicant and their claims. Pre-land summit: comprehensive planning and preparation of logistics as well as ways to manage substantive anthropological and legal issues holding the meetings over weekends with plenty of time for negotiations choosing suitable venues good food in large supply clear consistent travel allowance payment policies high level research and understanding of each claims current status and potential way forward. Land summit: highly skilled and well briefed Indigenous facilitators for each group (pay them well so you can utilise them again) skilled provision of information about the LSSP health services for the duration of the land summit Indigenous security services that are not intrusive digital mapping facilities and high quality maps involvement of the Federal Court and the Tribunal in process development and in the provision of information and advice high quality legal and anthropological advice clear consistent and transparent rules of engagement memorabilia. Post-land summit: timely follow-up on recommendations and instructions ongoing positive relationships between QSNTS and relevant government departments and between QSNTS and the applicants early establishment of native title corporations which have carefully thought-out decision-making processes a range of capacity building assistance including in the areas of governance, finance and land acquisition and management.[50]

(c) Cultural competence

Whether we like it or not, the way our communities operate will always be
shaped and informed by external influences. These influences can either support
and empower our communities or undermine and disempower them.

While this Chapter promotes our self-determination and our ability to control
our own destinies, we cannot do this without the support of governments and
other stakeholders who rely on us to engage effectively with them.

I argue that governments and industry cannot ‘fix’ lateral
violence through intervention; this is likely to only exacerbate the issue.
Aboriginal and Torres Strait Islander relationships must be addressed by us from
within our communities. However, this does not absolve external stakeholders of
responsibilities to:

• remove the road blocks that inhibit Aboriginal and Torres Strait Islander
  peoples from taking control

• refrain from actions and processes that divide us

• create environments where our cultural difference is respected and
  nurtured

• remove the structural impediments to healthy relationships in our
  communities.

To meet these responsibilities governments and
industry must be sufficiently culturally competent. Cultural competency extends
beyond individual awareness to incorporate systems-level change. Much of the
research in this regard has been conducted in the health sector, but should
apply more broadly across all sectors and in particular, agencies involved in
advancing the rights of Aboriginal and Torres Strait Islander peoples.

The National Health and Medical Research Council defines cultural competence as: Cultural competence is a set of congruent behaviours, attitudes and policies that come together in a system, agency or among professionals and enable that system, agency or those professions to work effectively in cross-cultural situations. Cultural competence is much more than awareness of cultural differences, as it focuses on the capacity of the health system to improve health and wellbeing by integrating culture into the delivery of health services. To become more culturally competent, a system needs to: value diversity have the capacity for cultural self-assessment be conscious of the dynamics that occur when cultures interact institutionalise cultural knowledge adapt service delivery so that it reflects an understanding of the diversity between and within cultures.[51]

The Victorian Aboriginal Child Care Agency has developed an Aboriginal
Cultural Competency Framework that guides the mainstream child and family
services towards cultural competency and includes a cultural competence
continuum that can be used to assess cultural competence. The framework for the
cultural competence continuum is set out below at Diagram 4.1.

Cultural competency must be built over time through a deliberate process that
seeks to build the capacity of the entire organisation and this must be done in
partnership with Aboriginal and Torres Strait Islander communities.

The concept of the continuum outlined in the diagram below can be applied
universally, to all who are working with Aboriginal and Torres Strait Islander
communities.

Diagram 4.1: Cultural competence continuum[52]

In developing the cultural competency of an agency or organisation it is
essential to remember that cultural competency:

• needs to be developed over time

• requires a whole-of-agency approach and needs to be driven by strong
  leadership within the agency

• relies on respectful partnerships with Aboriginal and Torres Strait Islander
  organisations

• requires personal and organisational reflection

• is an ongoing journey and partnership with Aboriginal and Torres Strait
  Islander
  communities.^[53]

I
encourage all agencies and external stakeholders to use this framework to
self-assess approaches to developing legislation, policies and programs that
affect the lives of Aboriginal and Torres Strait Islander peoples.

(d) Culturally appropriate decision-making and
conflict management

Conflict must be seen as natural, particularly given the multidirectional and
contextual relationships between individuals and communities. However, in
Aboriginal and Torres Strait Islander communities the potential for conflict
that leads to lateral violence is heightened as a result of the
‘inter-relationships and interconnections between people’, and often
does not account for the range of differentiations within the group.

An understanding of culture must recognise the diversity within Aboriginal
and Torres Strait Islander communities. As it currently stands, much of the
political and media landscape that directly affects the lives of Aboriginal and
Torres Strait Islander communities fails to reflect this diversity. Any
difference in opinion, even with contentious and personal views like politics or
ideology, is portrayed as
dysfunction.^[54] Meanwhile,
difference in opinion is accepted as the norm for mainstream Australia. Michael
Mansell reflects on this false homogeny:

We are no different from any other people anywhere in the world. We have
different lifestyles and different communities. We have different political
attitudes and we have different aspirations. Even though there are many common
threads which run throughout the Aboriginal [and Torres Strait Islander]
communities in Australia, we tend to encourage the differences because they are
healthy. The worst aspect of political life that can be imposed on Aboriginal
people [and Torres Strait Islanders] is that we must all speak with one voice
and say exactly the same
thing.^[55]

(i) Understanding conflict?

I believe that many of the conflicts that arise within Aboriginal and Torres
Strait Islander communities may never be resolved. This is a consequence of the
deep hurt, trauma and ongoing effects associated with our experience of
colonisation, dispossession, dispersal and oppression. It is likely that this
will also be the case in addressing our relationships with governments into the
future.

In successful processes that do not create lateral violence, conflict is
transformed to something that both parties can live with. Conflict never truly
goes away because individuals and communities have to live with the impact of
the original conflict. Nonetheless, it is possible and important to put in place
healthier ways of dealing with conflict to prevent it further impacting on our
communities into the future.

As such, frameworks designed to address conflict must be developed on the
basis of ‘conflict or dispute management’ rather than the
expectation of ‘conflict or dispute resolution’. In engaging these
processes, however, we can come to an agreed resolution that provides a pathway
forward.

Further, in developing appropriate frameworks to manage conflict, we must be
conscious that inter or intra-Indigenous disputes are not between Aboriginal and
or Torres Strait Islander peoples in isolation to the world around them. While
conflict is natural within communities, outside influences including those from
the Native Title Act contribute to
it.^[56]

When we are afforded the ability to disagree, we can develop responses to
disputes that arise within our communities and more broadly within the
Indigenous sector. Recognition and respect for diversity within Aboriginal and
Torres Strait Islander communities is an essential platform for developing
processes to effectively manage conflict and reduce the potential for lateral
violence.

(ii) Frameworks for decision-making and managing
conflict

A key component of effective participation in decision-making is the ability
to resolve disputes when they arise.

The ability of Indigenous communities to deal with conflict in ways that
reflect their local practice and reinforce local community authority not only
help make communities safer and more enjoyable places to live, they also go some
way to addressing the sources of dysfunctional and systemic
conflict.^[57]

External stakeholders have obligations to ensure that Aboriginal and Torres
Strait Islander peoples actively participate in decisions and processes that
affect their rights.^[58]

Governments and industry need to understand that when engaging with us,
conflict and disagreement within our communities is not something that can
simply be ignored in the hope it will go away. It won’t. These conflicts
are often ingrained and external engagement becomes another avenue to play out
these feuds. This is often seen in native title negotiations.

Similarly, community disputes should not be used by external parties as an
excuse for saying ‘it’s all too hard’. The presence of
community disputes does not absolve external parties of their obligations to
ensure we actively participate in decision-making that affects us.

‘Ultimately the aim is to negotiate the principles of a dispute
management framework which is integrated with the decision-making one and which
also contains contingency plans in the event that a dispute cannot be
managed’.^[59] However,
external consultation and engagement processes need to be adequately established
so that our internal decision-making and if necessary, conflict management
processes, can operate effectively without pressure from governments and other
parties.

For example, processes for resolving difficult issues must include reasonable
timeframes that are set by Aboriginal and Torres Strait Islander peoples rather
than by third parties. Identifying who has decision-making authority within the
community and ensuring all community members participate in decision-making also
assists to address conflict and reduce the potential for future conflict.

There are many options and mechanisms designed to deal with conflict
including mediation, arbitration and conciliation. In the native title
environment, mediation seems to be the main mechanism for negotiation and
conflict management. However, mediation may not always be the most appropriate
option. Throughout native title negotiations, a variety of mechanisms and
capacity building strategies may be needed to address different types of
conflict or to facilitate discussions at various points of the negotiation
process.

As identified by Behrendt and Kelly:

There is a recurring need for intra-cultural dispute resolution in the native
title system. Before any substantive negotiations can take place between native
title claimants and non-Indigenous parties under the Native Title Act 1993 (Cth) (NTA), ‘it is necessary for Indigenous parties to
negotiate a framework for Indigenous decision-making and conflict management
processes in relation to particular local contexts and
proposals’.^[60]

Considerable work has been done in developing appropriate frameworks for
managing conflict and resolving disputes, particularly in relation to native
title. This includes:

• The Solid work you mob are doing
  Project^[61]conducted by the
  Federal Court of Australia in partnership with the Australian Institute of
  Aboriginal and Torres Strait Islander Studies (AIATSIS).

• The Indigenous Facilitation and Mediation
  Project^[62] (IFaMP) conducted by
  AIATSIS.

The outcomes of these two projects reflect an alternative
dispute resolution (ADR) model. ADR processes are based on ‘traditional
dispute resolution mechanisms and the values of many Aboriginal
communities’.^[63] They are
‘designed to reflect the values of the Aboriginal
community’.^[64] The ADR model
also assists with developing ‘practicable alternatives that will create
better outcomes than current mediation
models’.^[65]

Recognising the role of culture in conflict management processes is essential
to success and is a central element of the ADR approach. The Report of the Solid work you mob are doing Project concludes that:

Cultural understandings, priorities and responsibilities to land and kin
differ markedly between and amongst Indigenous communities across Australia ...

Cultural meanings are embedded in the social, economic and political dynamics
of a community ... every dispute is different, and every process is a site of
collaboration and negotiation.^[66]

The need to accommodate this difference in the development of frameworks for
negotiation and conflict management is highlighted in the work of the Solid
work you mob are doing Project outlined in Text Box 4.6.

Text Box 4.6: Solid work you mob are doing Project[67]

The Project Report identifies a number of critical factors for effective practice in managing conflict in Aboriginal and Torres Strait Islander communities. These factors include: The role of culture This recognises: that both historical and contemporary cultural issues are inseparable from other issues affecting the lives of Aboriginal and Torres Strait Islander peoples that in negotiating with parties, managing conflicts in ways that are congruent with cultural values, priorities and governance structures – including kinship protocols, respect for Elders and traditional, use of ceremony and approaches to gender the need to assist the community to develop processes that are owned by the community the need to evolve processes and services in response to local needs and issues the need to adapt and modify approaches according to the context in which they are employed. The importance of preparation design the preparation phase thoroughly and allow sufficient time and resources map relationships to identify whose dispute it is and appropriate support people – the dispute may be ‘owned’ by individuals, or small or large groups, depending on the nature of the families and communities involved build willingness to participate by fostering goodwill, instilling confidence and trust, and explaining the process in clear language support local people to take responsibility for fixing their own problems by initiating dispute management processes themselves prepare thoroughly and ensure timeframes are appropriate Effective Practice – process design build on work carried out during preparation to design effective process engage with, and respond to preferred ways of doing things and confirm the appropriateness and acceptability of the approach use team, co-mediation or panel approaches to: better account for the broad range of interests and needs in multi-party disputes offer a choice of mediators including Indigenous practitioners that allow for matching gender, cultural background, and other relevant factors such as localness establish local and regional infrastructure to facilitate access to services and to enable quick responses to requests for assistance to avoid disputes escalating to the point of intractability consider who should be invited to attend after extensive discussions with parties – bringing everyone together in ‘big meetings’ without adequate preparation will be ineffective ensure that all parties agree with the venue create physically safe places where feelings can be expressed, and strong emotions can be vented create culturally safe places which use language and communication styles that are understood, involve appropriate support including interpreters and are located in casual environments promote and model effective non-violent ways of managing conflict respect the importance and complexity of relationships and design processes that build positive relationships.

The IFaMP was particularly focused on identifying, promoting and supporting
best practice approaches to Aboriginal and Torres Strait Islander
decision-making and conflict management particularly in relation to the
operation of the Native Title Act.

Native title stakeholders and the Australian Government have identified the
need to transform the adversarial nature of the native title system and have
significantly focused on improving agreement making processes and developing
non-adversarial approaches such as mediation, facilitation and
negotiation.^[68]

The principles promoted by IFaMP and that are outlined in Text Box 4.7 assist
in creating culturally appropriate frameworks for decision-making, conflict
management and agreement making.

Text Box 4.7: IFaMP – Ten best practice principles in decision-making, agreement making and dispute management processes[69]

IFaMP has developed a best practice framework that is relevant to processes for Aboriginal and Torres Strait Islander decision-making and conflict management. This framework is underpinned by a set of principles to support these processes: Conflict is natural and can have positive outcomes when managed appropriately. Indigenous people have the right to: free, prior and informed consent to processes and agreement outcomes say no to any processes or agreements manage and own their decisions and disputes. Indigenous decision making and dispute management processes are complex and should not be rushed. Processes should do no harm. How agreements are negotiated will have a major bearing on their sustainability; decisions must be owned by Indigenous parties to be sustainable. ‘Quick fix’ solutions are to be avoided at the expense of long term resolution. No one size fits all – processes should: reflect, support and be tailored to local needs and ideas of how authority should be organised and decisions should be made embody Indigenous values and Indigenous law recognise that some Indigenous disputes may not be amenable to resolution and that their dynamics should be managed and accounted for in solutions build on and support local capacity. Early intervention and prompt responses can de-escalate conflict. Agreement making processes and negotiations require arm’s length facilitation. Indigenous decision-making, agreement making and dispute management processes should be integrated with other processes and services in Indigenous communities in whole-of-government and whole-of-community approaches. This framework also provides best practice guidelines for Indigenous decision-making, agreement making and dispute management processes. The guidelines focus on: resourcing processes adequately strategic planning, preparation, design and time frames team cohesion consent to process meeting the needs of those outside the process capacity to participate dialogue, relationship building and interactive techniques community education mapping underlying issues and disputes an integrated approach negotiating local decision-making and dispute management frameworks effective group representation, roles and responsibilities conflict of interest implementation complaints processes employment of process experts and codes of conduct.

These culturally based principles and guidelines can be translated into
engagement protocols or codes of conduct that can guide internal community
decision-making and conflict management processes, and assist Aboriginal and
Torres Strait Islander people to participate in external processes that affect
their communities.

The above case studies reflect the human rights principles that I outline in
Chapter 3 and provide a good starting point to equip our communities to find
local solutions to local problems. Applied within strong governance frameworks,
these structures can assist Aboriginal and Torres Strait Islander communities to
combat and neutralise behaviours that result in lateral violence.

(e) Creating strong and sustainable
governance

A key requirement that is necessary to fully exercise our right to
self-determination and to participate effectively in decisions affecting us is
‘good governance’. However, simply applying a non-Indigenous
governance framework to Aboriginal and Torres Strait Islander community
organisations – in particular PBCs – is misplaced and inappropriate.
This is due to the fact that:

Indigenous governance structures are a complex mix of formal and informal
structures and processes. Extended Indigenous families have many levels of
inclusiveness. There are local institutions informed by long held Indigenous
laws and cultural priorities, local government councils, incorporations of
native title holders and traditional owners, and a range of other Aboriginal
resource and interest groups.

Functioning PBCs are essential to native title. Good governance helps to
reduce the potential for conflict by establishing agreed frameworks and
accountability mechanisms that accommodate the diversity of rights and
responsibilities required within Aboriginal and Torres Strait Islander
organisations, particularly those set up for the purposes of managing native
title rights and interests.

Governance is: ... about how a group of people organise themselves to make sure things are run well, so that they can successfully achieve the outcomes that are important to them. That means people have to have processes, structures and rules in place so that they can make decisions and take action together to ... determine who is a member of their group exercise their authority and power hold their leaders accountable represent their collective rights and interests steer their future direction negotiate with each other and outside parties manage their own affairs. At its heart, governance is about who has power and authority, and how they use it ... Without genuine decision-making power, and the practical capacity to exercise legitimate and accountable authority, any system of governance will fail. [70]

In designing, developing and assessing governance frameworks, we are able to
rely on guidance provided by the Declaration. For example, the Declaration says
that in order to advance our rights to participate in decision-making that
affects us, our representative bodies should ensure they echo the voices of the
Aboriginal and Torres Strait Islander peoples that they represent.

(i) ‘Good governance’ in a cultural
context

Governance in Aboriginal and Torres Strait Islander communities is directly
related to consultation and engagement, and encompasses genuine decision making
power.

Good governance means having good rules for deciding how people work together
to do the things they need to get done, how decisions are made, who has the
authority to act for the group, how are disputes resolved and how to get
community business done.^[71]

Good governance frameworks must be supported by principles of
self-determination, free, prior and informed consent, non-discrimination, and
the protection of culture. Good governance is compromised in the absence of
these key human rights principles, which results in conflict, dysfunction and
lateral violence rather than good governance and good outcomes.

One of the critical barriers to ensuring strong and sustainable governance in
PBCs is the tendency to leave establishing governance frameworks until the end
of the negotiation process rather than creating them at the beginning of the
process. If appropriate governance structures are established early in the
process, they can define the decision-making protocols and be a key source to
manage conflict. They can also enable ongoing review throughout the process to
ensure the structure accurately reflects and delivers the aspirations of the
group.

An example of establishing governance structures early in the native title
process is demonstrated by requiring a native title claim group to have an
incorporated body or PBC that accurately reflects the group as a threshold
requirement to access funding from the service to enter
negotiations.^[72]

McAvoy and Cooms argue that the early establishment of PBCs is necessary
because the ‘capacity building that takes place on the way to the
resolution of the native title proceedings is perhaps the most enduring outcome
of the native title process’:

Involvement in establishing a corporation and settling upon well thought-out
and agreed decision making processes will also ensure that the claim group
remains cohesive and that decisions are made according to a well planned process
and are appropriately integrated into the structure of the corporations. It can
also ensure the inequities present in any other corporate structures with which
members of the claim group might be involved are exposed and rectified at an
early stage.^[73]

Establishing governance frameworks early in the process can also assist in
avoiding conflict and lateral violence associated with the perceived issue of
nepotism.^[74] I argue that this is a
perceived issue because the imposition of non-Indigenous forms of governance has
distorted our own understanding of familial and community relationships and
responsibilities, and our ways of governing. Hunt, Smith, Garling and Sanders
articulate this as follows:

[Families] form the backbone of Indigenous communities and many local
organisations, thereby linking an extended family group identity to
organisational identities and forms of political representation. In this manner,
extended families not only have a form of internal governance, they are also
embedded into other layers of governance at community and regional levels, and
outwards... The Indigenous family lies at the heart of values of reciprocity,
mutual responsibility and obligation. Because of this, it is argued that these
institutional rules of family life cannot be trusted in the world of capitalism,
business management and profit
making.^[75]

Unfortunately, this lack of trust not only affects our relationships with
external stakeholders but also influences our relationships with each other.
This is particularly destructive in PBCs because they are established to manage
and distribute the benefits acquired through a determination of native title and
the negotiation of native title agreements. The effective management of these
processes must be sustainable over the long-term. Good governance assists in
ensuring this is achieved.

Again, I refer to the Argyle Participation Agreement to demonstrate how
establishing appropriate governance frameworks that meet the needs of the groups
involved can reduce the potential for lateral violence as a result of the
effective management and distribution of resources.

Text Box 4.8: The Argyle Participation Agreement[76] – Part 2

The ILUA negotiations were conducted by two committees: the traditional owners and Argyle Diamonds. The traditional owner Negotiation Committee was structured to include the various cultural groupings. It comprised 22 representatives from all family groups with traditional rights and interests as defined by the ethnographic studies. The Negotiating Committee attended meetings on behalf of the traditional owner groups and other senior men came to the meetings and observed. My personal view is that this is a governance practice that you just can’t buy in any other way ... that group on traditional lines came together, exercised traditional decision-making power ... They demonstrated the power of traditional decision-making and they constructed that group so it was a blend of men and women, old people, young people, the right composition of family. It held, the composition held, everybody came to every meeting, everybody worked hard at every meeting, it was just phenomenal. The old people were just sagging in their seats, they were so exhausted, but none of them left.[77] The experience of negotiating the Argyle Participation Agreement reinforces the importance of Indigenous models of governance. The unique structure of the agreements reflects the aspirations of both Argyle Diamond Mine and the traditional owners that the agreements provide a firm base for an enduring partnership and sustainable prosperity for traditional owners during the life of the Argyle mine and once mining is completed.[78] The ILUA established two trusts: the Gelganyem Trust and the Kilkayi Trust. The names of the trusts are derived from the Mirriuwung and Gidja peoples words that describe traditional fishing methods and are used by the women for stories associated with Barramundi Gap. The Gelganyem Trust is made up of eleven trustees, nine representing the seven traditional owner estate groups that are party to the ILUA and two independent trustees. The Gelganyem Trust was established to manage the financial contributions split between the Sustainability Fund, the Law and Culture Fund, the Education and Training Fund, and the Miriuwung and Gija Partnership Fund. Training was provided to the trustees prior to assuming their roles and responsibilities. The Kilkayi Trust has only two independent trustees. This trust has two roles: To administer the annual payments from Argyle to the individual families party to the ILUA. To assist each family to develop an annual expenditure plan outlining specific community projects and initiatives. The independent trustees are appointed by agreement of the ILUA parties and bring high level management, financial and community development skills to the trusts.[79] Traditional owners agreed that they are not representatives on trusts that manage other families business.[80]

(ii) Challenges to achieving good governance in the
native title context

I am concerned that the Australian Government’s own culture of
governance in Aboriginal and Torres Strait Islander affairs is an entrenched
barrier to overcoming this challenge – particularly as it is based on
institutionalised forms of policy and control rather than empowerment and
development. The result is that ‘Indigenous governance becomes a matter of
all responsibility, but no
power’^[81], and creates an
environment that encourages lateral violence.

For example, where governments impose non-Indigenous legal concepts,
structures and governance institutions through legislative and policy frameworks
on Aboriginal and Torres Strait Islander peoples, they require:

• the incorporation of social groups into organisations

• the ordering concepts of democratic elections and voting systems

• the asserted primacy of individual citizenship over collective rights

• the statutory naming of newly-created categories of people on whom are
  bestowed specified decision-making rights, responsibilities and authority by the
  state.^[82]

In exercising our rights to our lands, territories and resources, Aboriginal and Torres Strait Islander peoples are required to navigate and conform to a myriad of non-Indigenous governance structures and requirements, including: engaging with governance structures established by government to facilitate access to lands and resources, such as NTRBs, NTSPs, Land Councils, and Indigenous Advisory Committees establishing negotiating committees to prepare for the establishment of formal governance structures, such as defining applicants in a native title or land rights claim, or determining who should negotiate an ILUA on behalf of the group establishing governance organisations in accordance with legislative and policy requirements such as NTRBs, NTSPs, Land Councils, Prescribed Bodies Corporate or Land Trusts incorporating governance organisations under government established and regulated legal frameworks. These legislative and policy frameworks create ‘legal categories of people’ – such as ‘traditional owners’, ‘authorised claimants’ and ‘native title holders’ – who have to be registered and certified; and ‘councillors’, ‘chairpersons’, ‘bodies corporate’ and ‘governing boards’ who are required to operate under legal and constitutional guidelines.[83]

Governments must ensure processes that contribute to the effective
functioning of the native title system progress native title outcomes and
minimise the potential for conflict within these organisations and native title
groups.

I also encourage the Australian Government to ensure that PBCs are able to
independently access financial and technical
support^[84] to facilitate their
successful establishment, capacity development, and to ensure they are
well-functioning, sustainable and self-governing.

4.5 Conclusion

In this Chapter, I have discussed a number of options for addressing lateral
violence in a native title context. In particular, I have highlighted the need
to ensure that legislative and policy frameworks advance our development and
empower us to reach our full potential in accordance with the Declaration on the
Rights of Indigenous Peoples. I have also set out some examples of initiatives
established by Aboriginal and Torres Strait Islander peoples and their
organisations to transform lateral violence behaviours from negative
interactions to positive engagement with each other.

I encourage Aboriginal and Torres Strait Islander peoples to continue to
actively develop local solutions to lateral violence in their communities.
However, governments and industry must work with us to ensure that their
interactions assist us to prevent rather than promote lateral violence in our
communities.

The recognition of our native title provides a unique opportunity for many
Aboriginal and Torres Strait Islander peoples to overcome disadvantage. However,
the native title system must operate in a way that empowers us to achieve this
outcome. It must be supported by strong foundations that ensure our
self-determination and enable our effective participation in decision-making.
And the native title system must be developed with a holistic approach to
overcoming the impacts of colonisation.

I look forward to watching our communities grow in their efforts to address
lateral violence, and to working with governments and others to ensure their
contributions to our communities are positive and empowering.

Recommendations

That targeted research is undertaken to develop the evidence base and tools to address lateral violence as it relates to the native title system. This research should be supported by the Australian Government. That Aboriginal and Torres Strait Islander communities and their organisations work together to develop engagement and governance frameworks that promote cultural safety and comply with the United Nations Declaration on the Rights of Indigenous Peoples. That all governments working in native title ensure that their engagement strategies, policies and programs are designed, developed and implemented in accordance with the United Nations Declaration on the Rights of Indigenous Peoples. In particular, this should occur with respect to the right to self-determination, the right to participate in decision making guided by the principle of free, prior and informed consent, non-discrimination, and respect for and protection of culture. That the Australian Government pursue legislative and policy reform that empowers Aboriginal and Torres Strait Islander peoples and their communities, in particular: reforming the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, and address the provisions that permit discrimination on the basis of race ensuring that the National Human Rights Framework includes the United Nations Declaration on the Rights of Indigenous Peoples to guide its application of human rights as they apply to Aboriginal and Torres Strait Islander peoples creating a just and equitable native title system that is reinforced by a Social Justice Package. That all governments, key organisations and industry partners working in native title conduct an audit of cultural safety and security in relation to their programs and policies that impact on Aboriginal and Torres Strait Islander peoples; and in consideration of the results, develop strategies to increase cultural competence within their agencies and organisations. That all governments, key organisations and industry parties working in native title, conduct education and awareness raising sessions on lateral violence for both Aboriginal and Torres Strait Islander and non-Indigenous staff.

---

^[1] Department of Finance and
Deregulation, Strategic Review of Indigenous Expenditure (2010), p 248.
At http://www.finance.gov.au/foi/disclosure-log/2011/docs/foi_10-27_strategic_review_indigenous_expenditure.pdf (viewed 23 September 2011).

^[2] The
Universal Periodic Review is a unique process, established by the Human Rights
Council to review the human rights records of every country. See United Nations
Office of the High Commissioner for Human Rights, Universal Periodic Review, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx (viewed 20 September 2011).

^[3] Human Rights Council, Report of the Working Group on the Universal Periodic
Review Australia, UN Doc A/HRC/17/10 (2011), rec 106. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 September 2011).

^[4] Attorney-General’s Department, Australia’s Human Rights
Framework, http://www.ag.gov.au/www/agd/agd.nsf/Page/Human_rights_and_anti-discriminationAustralias_Human_Rights_Framework (viewed 3 October 2011).

^[5] K
Rudd, Apology to Australia’s Indigenous Peoples (Speech delivered
to the House of Representatives, Canberra, 13 February 2008). At http://australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigenous-peoples (viewed 24 September 2011).

^[6] See
The Royal Australian and New Zealand College of Psychiatrists,
‘Constitution changes would improve Indigenous mental health’ (Media
Release, 12 October 2010). At http://www.ranzcp.org/media/constitution-changes-would-improve-indigenous-mental-health.html (viewed 24 November 2010).

^[7] Native Title Amendment Act 1998 (Cth); Kartinyeri v Commonwealth (1998) 195 CLR 337; Northern Territory Emergency Response (Northern Territory
National Emergency Response Act 2007 (Cth)).

^[8] Mabo v Queensland [No
2] (1992) 175 CLR 1.

^[9] P
Keating, ‘Time to revisit native title laws’, The Australian, 01 June 2011. At http://www.theaustralian.com.au/national-affairs/opinion/native-title-laws-retain-some-inequality/story-e6frgd0x-1226066685042 (viewed 24 September 2011).

^[10] Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and
Reform: A Report to Government on Native Title Social Justice Measures’ (1995). Reproduced in [1996] Australian Indigenous Law Reporter 27.
At http://www.austlii.edu.au/au/journals/AILR/1996/27.html (viewed 22 August 2011).

^[11] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008), p 4.
At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/chapter0.html (viewed 19 September 2011).

^[12] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2010, Australian Human Rights Commission (2011), chs
1, 2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/chapter1.html#Heading53 (viewed 20 September 2011).

^[13] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2010), p
79. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 6 October 2011).

^[14] M
Wilcox QC, Mabo Oration 2009 – Comments on the 2009 Oration (Speech
delivered in response to the 2009 Mabo Oration, Brisbane, 5 June 2009). At http://www.adcq.qld.gov.au/ATSI/FromSelfRespect_comments.html (viewed 6 October 2011).

^[15] Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
Australia, UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 6 October 2011).

^[16] R
McClelland, Negotiating Native Title Forum (Speech delivered at the
Negotiating Native Title Forum, Brisbane, 29 February 2008), para 10. At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FirstQuarter_29February2008-NegotiatingNativeTitleForum (viewed 31 August 2011).

^[17] See
Native Title Reports submitted to the Australian Parliament, at http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 21 September 2011). In particular see T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2010), ch 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 6 October 2011).

^[18] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 27. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 6 October 2011).

^[19] Quoted in Indigenous Legal Issues, Commentary and Materials, ed. Heather
McRae et. al, LBC Information Services, North Ryde, 1977, p 299. As cited in J
Gardiner-Garden, From Dispossession to Reconciliation (1999) Research Paper 27, Parliament of Australia. At http://www.aph.gov.au/library/pubs/rp/1998-99/99rp27.htm#responseMabo (viewed 3 October 2011).

^[20] Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and
Reform: A Report to Government on Native Title Social Justice Measures’
(1995) in Eds, ‘Recognition, Rights and Reform: A Report to Government on
Native Title Social Justice Measures – Digest’ (1996) 1(1) Australian Indigenous Law Reporter 76. At http://www.austlii.edu.au/au/journals/AILR/1996/27.html (viewed 22 August 2011).

^[21] Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and
Reform: A Report to Government on Native Title Social Justice Measures’
(1995) in Eds, ‘Recognition, Rights and Reform: A Report to Government on
Native Title Social Justice Measures – Digest’ (1996) 1(1) Australian Indigenous Law Reporter 76. At http://www.austlii.edu.au/au/journals/AILR/1996/27.html (viewed 22 August 2011).

^[22] The
Protection Acts that governed the removal of Aboriginal and Torres Strait
Islander peoples can be found at AIATSIS, To Remove and Protect, http://www1.aiatsis.gov.au/exhibitions/removeprotect/index.html (viewed 21 September 2011).

^[23] Visiting Research Fellow, Toni Bauman has published a Native title Research Unit
Issues paper which sets out some of the process issues, practical implications
and techniques arising out of IFAMP’s case study. See T Bauman,
‘Waiting for Mary: Process and Practice Issues in Negotiating Native Title
Indigenous Decision-making and Dispute Management Frameworks’ (2006) Vol.
3, Issues Paper No. 6. Land, Rights, Laws: Issues of Native Title, p 1.
At http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip06v3n6.pdf (viewed 12 October 2011).

^[24] T
McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan, Native Title Research Monograph No. 2 (2008), p 19. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).

^[25] United Nations Permanent Forum on Indigenous Issues, Indigenous Peoples:
Development with Culture and Identity Articles 3 and 32 of the UN Declaration on
the Rights of Indigenous Peoples, Fact Sheet Backgrounder. At http://www.un.org/esa/socdev/unpfii/documents/Development%20with%20Culture%20and%20Identity.pdf (25 September 2011).

^[26] Economic and Social Council, Indigenous peoples: development with culture and
identity: articles 3 and 32 of the United Nations Declaration on the Rights of
Indigenous Peoples, Report of the international expert group meeting, UN Doc E/C.19/2010/14 (2010), para 10. At http://www.un.org/esa/socdev/unpfii/documents/E.C.19.2010.14%20EN.pdf (viewed 14 October 2011).

^[27] Economic and Social Council, Indigenous peoples: development with culture and
identity: articles 3 and 32 of the United Nations Declaration on the Rights of
Indigenous Peoples, Report of the international expert group meeting, UN Doc E/C.19/2010/14 (2010), para 11. At http://www.un.org/esa/socdev/unpfii/documents/E.C.19.2010.14%20EN.pdf (viewed 14 October 2011).

^[28] Report of the Right People for Country Project Committee (2011), pp
19−27.

^[29] United
Nations Declaration on the Rights of Indigenous Peoples, GA Resolution
61/295 (Annex), UN Doc A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 12 July 2011).

^[30] L
Behrendt and L Kelly, Resolving Indigenous Disputes: Land Conflict and
Beyond (2008).

^[31] T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2006, Human Rights and Equal Opportunity Commission (2007), ch
5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/pdf/ntr_ch05.pdf (viewed 16 September 2011).

^[32] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), ch 5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/pdf/ntr_ch05.pdf (viewed 16 September 2011).

^[33] The Argyle Diamond Mine is owned by the Rio Tinto Group.

^[34] Argyle Diamonds, The
Argyle Participation Agreement: Breaking New Ground, Information Brochure (2005), p 7. At http://www.argylediamonds.com.au/docs/BreakingNewGround.pdf (viewed 14 October 2011).

^[35] K
Doohan, Interview with Human Rights and Equal Opportunity staff, 17 October
2006.

^[36] K Doohan, Interview
with Human Rights and Equal Opportunity staff, 17 October
2006.

^[37] R Frankland, M
Bamblett, P Lewis and R Trotter, This is ‘Forever Business’: a
framework for maintaining and restoring cultural safety in Aboriginal Victoria (2010), p 5.

^[38] R Williams,
‘Cultural Safety – what does it mean for our work practice?’
(1999) 23(2) Australian and New Zealand Journal of Public Health 213, p
213. See also R Frankland, M Bamblett, P Lewis and R Trotter, This is
‘Forever Business’: a framework for maintaining and restoring
cultural safety in Aboriginal Victoria (2010), p
12.

^[39] R Frankland and P Lewis, Presentation to Social Justice Unit staff, Australian Human Rights
Commission, 14 March 2011.

^[40] See S Gorringe, J Ross, C Fforde, ‘Will the Real Aborigine Please Stand
Up’: Strategies for breaking the stereotypes and changing the
conversation, AIATSIS Research Discussion Paper 28 (January 2011), p 11. At http://www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 14 October 2011). This AIATSIS Workshop on identity identified creating
safety to enable a place and process for robust discussion was crucial to
changing the negative conversations about identity to focus on
solutions.

^[41] M Dodson, The
End in the Beginning: Re(de)fining Aboriginality (Speech delivered at
Wentworth Lecture, Australian Institute of Aboriginal and Torres Strait Islander
Studies, Canberra, 1994). At http://www.humanrights.gov.au/about/media/speeches/social_justice/end_in_the_beginning.html (viewed 23 September 2011).

^[42] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan, Native Title Research Monograph 2 (2008), p 3. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).

^[43] Queensland South Native Title Services, Annual Report (2006–2007),
p 10.

^[44] Queensland South
Native Title Services, Annual Report (2006–2007), p
10.

^[45] Queensland South Native
Title Services, Annual Report (2006–2007), pp 10,
13.

^[46] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan, Native Title Research Monograph 2 (2008), p 4. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011). Also see Queensland South Native Title Services, Annual Report (2006–2007), p
18.

^[47] Queensland South Native
Title Services, Annual Report (2005–2006), p
4.

^[48] Queensland South Native
Title Services, Annual Report (2006–2007), p
20.

^[49] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way: implementation of the
Queensland South Native Title Services Ltd Legal Services Strategic Plan, Native Title Research Monograph 2 (2008), pp 11–25. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).

^[50] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan, Native Title Research Monograph 2 (2008), p 25. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011). Also see Queensland South Native Title Services, Annual Report (2006–2007),
p 25.

^[51] National Health
and Medical Research Council, Cultural Competency in Health: A guide for
policy, partnerships and participation (2006), p 7. At http://www.nhmrc.gov.au/guidelines/publications/hp19-hp26 (viewed 12 September 2009). In text references excluded.

^[52] Victorian Aboriginal Child
Care Agency, Aboriginal Cultural Competence Framework (2008), p 24. At http://www.dhs.vic.gov.au/about-the-department/plans,-programs-and-projects/plans-and-strategies/children,-youth-and-family-services/aboriginal-cultural-competence-framework-2008 (viewed 9 September 2011).

^[53] Victorian Aboriginal Child Care Agency, Aboriginal Cultural Competency
Framework (2008), p 54. At http://www.dhs.vic.gov.au/about-the-department/plans,-programs-and-projects/plans-and-strategies/children,-youth-and-family-services/aboriginal-cultural-competence-framework-2008 (viewed 9 September 2011).

^[54] S
Maddison, ‘Voice and Diversity in Indigenous Politics’ (2009) 7(11) Indigenous Law Bulletin 19. At http://www.austlii.edu.au/au/journals/IndigLawB/2009/14.html (viewed 23 September 2011).

^[55] M Mansell quoted in F Brennan, One Land, One Nation: Mabo — Towards
2001 (1995), 73; S Maddison, ‘Voice and Diversity in Indigenous
Politics’ (2009) 7(11) Indigenous Law Bulletin 19,
pp 19−20. At http://www.austlii.edu.au/au/journals/IndigLawB/2009/14.html (viewed 23 September 2011).

^[56] T Bauman and R Williams, The Business of Process Research Issues in Managing
Indigenous

Decision-Making and Disputes in Land, Research
Discussion Paper No 13, Australian Institute of Aboriginal and Torres Strait
Islander Studies, Canberra, p 13. At http://www.aiatsis.gov.au/research/docs/dp/DP13.pdf (viewed 3 October 2011).

^[57] Federal Court of Australia’s Indigenous Dispute Resolution & Conflict
Management Case Study Project, Solid work you mob are doing: Case studies in
Indigenous Dispute Resolution & Conflict Management in Australia, Report
to the National Alternative Dispute Resolution Advisory Council (2009), p 101.
At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 3 October 2011).

^[58] Human Rights Council, Progress report on the study on indigenous peoples and
the right to participate in decision-making: Report of the Expert Mechanism on
the Rights of Indigenous Peoples, UN Doc A/HRC/EMRIP/2010/2, paras
3−5. At http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/ExpertMechanismDocumentation.aspx#session3 (viewed 26 September 2011).

^[59] T Bauman, ‘Waiting for Mary: Process and Practice Issues in Negotiating
Native Title Indigenous Decision-making and Dispute Management Frameworks’
(2006) Vol. 3, Issues Paper No. 6. Land, Rights, Laws: Issues of Native
Title, p 8. At http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip06v3n6.pdf (viewed 12 October 2011).

^[60] T
Bauman, ‘Whose Benefits? Whose Rights? Negotiating Rights and Interests
Amongst Indigenous Native Title Parties’, (2005) Vol. 3, Issues Paper No.
2. Land, Rights, Laws: Issues of Native Title, p 17. At http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip05v3n2.pdf,
as cited in L Behrendt and L Kelly, Resolving Indigenous Disputes: Land
Conflict and Beyond (2008), p
103.

^[61] Federal Court of
Australia’s Indigenous Dispute Resolution & Conflict Management Case
Study Project, Solid work you mob are doing: Case studies in Indigenous
Dispute Resolution & Conflict Management in Australia, Report to the
National Alternative Dispute Resolution Advisory Council (2009). At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 3 October 2011).

^[62] See
the work the Australian Institute of Aboriginal and Torres Strait Islander
Studies have completed on dispute resolution (including mediation, negotiation
and facilitation) at http://www.aiatsis.gov.au/ntru/projects.html#neg (viewed 3 October 2011).

^[63] L
Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and beyond
(2008), p 103.

^[64] L
Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and beyond
(2008), p 103.

^[65] L
Behrendt and L Kelly, Resolving Indigenous Disputes: land conflict and beyond
(2008), p 103.

^[66] Federal
Court of Australia’s Indigenous Dispute Resolution & Conflict
Management Case Study Project, Solid work you mob are doing: Case studies in
Indigenous Dispute Resolution & Conflict Management in Australia, Report
to the National Alternative Dispute Resolution Advisory Council (2009), p 99. At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 3 October 2011).

^[67] Federal Court of Australia’s Indigenous Dispute Resolution & Conflict
Management Case Study Project, Solid work you mob are doing: Case studies in
Indigenous Dispute Resolution & Conflict Management in Australia, Report
to the National Alternative Dispute Resolution Advisory Council (2009), pp
99−114. At http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_PublicationsbyDate_SolidWorkyouMobaredoingReport (viewed 3 October 2011).



^[68] R McClelland, 3^rd Negotiating Native Title Forum (Speech
delivered at the 3rd Negotiating Native Title Forum, Vibe Savoy Hotel,
Melbourne, 20 February 2009). At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_FirstQuarter_20February2009-3rdNegotiatingNativeTitleForum?open&query=adversarial (viewed 6 October 2011).

^[69] T
Bauman, Final Report of the Indigenous Facilitation and Mediation Project
July 2003-June 2006: research findings, recommendations and implementation (2006), Report No. 6, Australian Institute of Aboriginal and Torres Strait
Islander Studies, pp 28−36. At http://www.aiatsis.gov.au/ntru/docs/researchthemes/negmedfac/ifamp/IfampReport.pdf (viewed 9 September
2011).



^[70] D Smith, J Hunt, Do They Get It? Indigenous Governance: The Research Evidence and
Possibilities for a Policy Dialogue with Australian Governments (Presentation delivered at the Inaugural National Indigenous Policy and
Dialogue Conference, University of New South Wales, Sydney, 18 November 2010).
At http://nipdc.arts.unsw.edu.au/assets/Powerpoints/Smith_Hunt.pdf (viewed 17 September 2011). Emphasis in
original.

^[71] S Cornell, Starting and Sustaining Strong Indigenous Governance (Presentation at the
Building Effective Indigenous Governance Conference, Jabiru, Northern Territory,
5 November 2003), p 3.

^[72] T
McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan, Native Title Research Monograph 2 (2008) pp 18−19. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).

^[73] T McAvoy and V Cooms, Even as the Crow Flies, it is Still a Long Way:
implementation of the Queensland South Native Title Services Ltd Legal Services
Strategic Plan, Native Title Research Monograph 2 (2008) pp 18−19. At http://www.aiatsis.gov.au/ntru/docs/publications/monographs/MonographCrowFlies.pdf (viewed 27 September 2011).

^[74] Nepotism is widely understood to mean advantages obtained through family
relationships, and is not necessarily illegal: Office of the Registrar of
Aboriginal Corporations, Report—Forum on Risk Issues for Programs
Funding Indigenous Corporations (2004), p 19, as cited in J Hunt, D Smith, S
Garling and W Sanders (Eds), Contested Governance: Culture, power and
institutions in Indigenous Australia, Centre for Aboriginal Economic Policy
Research, Research Monograph No. 29 (2008), p 211. At http://epress.anu.edu.au/caepr_series/no_29/pdf/whole_book.pdf (viewed 17 October 2011).

^[75] J
Hunt, D Smith, S Garling and W Sanders (Eds), Contested Governance: Culture,
power and institutions in Indigenous Australia, Centre for Aboriginal
Economic Policy Research, Research Monograph No. 29 (2008), pp 210−211. At http://epress.anu.edu.au/caepr_series/no_29/pdf/whole_book.pdf (viewed 17 October 2011).

^[76] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), ch 5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/pdf/ntr_ch05.pdf (viewed 16 September 2011).

^[77] S Nish, Interview with Human Rights and Equal Opportunity Commission staff, 19
October 2006.

^[78] Gelganyem
Trust and Kilkayi Trust, Email correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission, 17 November
2006.

^[79] Gelganyem Trust and
Kilkayi Trust, Email correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission, 17 November
2006.

^[80] S Nish, Interview with
Human Rights and Equal Opportunity Commission staff, 19 October
2006.

^[81] D Smith, J Hunt, Do
They Get It? Indigenous Governance: The Research Evidence and Possibilities for
a Policy Dialogue with Australian Governments (Presentation delivered at the
Inaugural National Indigenous Policy and Dialogue Conference, University of New
South Wales, Sydney, 18 November 2010). At http://nipdc.arts.unsw.edu.au/assets/Powerpoints/Smith_Hunt.pdf (viewed 17 September 2011).

^[82] J Hunt, D Smith, S Garling and W Sanders (Eds), Contested Governance:
Culture, power and institutions in Indigenous Australia, Centre for
Aboriginal Economic Policy Research, Research Monograph No. 29 (2008), p 79. At http://epress.anu.edu.au/caepr_series/no_29/pdf/whole_book.pdf (viewed 17 October 2011).

^[83] J
Hunt, D Smith, S Garling and W Sanders (Eds), Contested Governance: Culture,
power and institutions in Indigenous Australia, Centre for Aboriginal
Economic Policy Research, Research Monograph No. 29 (2008), p 79. At http://epress.anu.edu.au/caepr_series/no_29/pdf/whole_book.pdf (viewed 17 October 2011).

^[84] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 39. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 12 July 2011).