Author:	Tracey Summerfield BA, LLB(Hons)(Murd) Associate Lecturer, Murdoch University School of Law
Subjects:	Aborigines - land tenure (Other articles) Aborigines land tenure government policy (Other articles) Native Title Act 1993 Australia (Other articles)
Issue:	Volume 7, Number 2 (June 2000)
Category:	Refereed Articles

Contents

• Introduction
• The New Representative Body Regime
• The Statutory Framework
• Background to the Amendments
• Critique of the Amendments
• The Overriding Principle: Consultation And Representativeness?
• Certification
• Notification
• Conclusion: The Effect of the NTRB Amendments
• Notes

Introduction

1. Native Title Representative Bodies (NTRBs) are bodies "recognised" under the Native Title Act 1993 (Cth) (the Act), as amended by the Native Title Amendment Act 1998 (Cth) by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs for the purpose of representing and assisting in the processing of Native Title matters on behalf of Aboriginal and Torres Strait Island peoples.[1] The Representative Body regime as created under the Amendments is to come into affect at a date set by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs (at this stage, June 2000). The NTRB regime appears at face value to be cognisant of Aboriginal and Torres Strait Islander peoples' issues and organisational processes and of the complexities of attempting to accommodate cross-cultural exchanges within a legal framework. For example, the Act provides that NTRBs are to be involved with their local indigenous constituents through consultation and representativeness.[2] They are also to be involved in alternative processes for resolving disputes and achieving positive Native Title outcomes for their Native Title constituents.[3]

2. Despite these apparent cross-cultural measures, there are a number of fundamental difficulties faced by the NTRBs as a result of the new regime. The first is that the range of functions is so broad that these functions are largely unachievable in total. Similarly, the types of functions are at times irreconcilable, so that NTRBs may be forced to choose which function to exercise in a given instance, particularly if the funding granted is not commensurable to the task. The second is that the amended Act gives rise to a need for NTRBs to be the mediators between two different cultural systems - the Australian legal system and Indigenous processes[4] for resolving matters. The substantive provisions of the Act may at times operate to actually limit the ability of the NTRB to perform in a manner which is consistent with the processes of its community, and vice versa. As Nettheim questions, what is the "likelihood that NTRBs will be capable of ...proceeding in ways that are 'culturally appropriate' without falling foul of the 'external' [that is, non-indigenous] accountability regime"?[5]

3. These difficulties are exacerbated by the degree of ministerial discretion in deciding rerecognition of NTRBs as part of the second phase proceedings, and the possibilities for withdrawal of recognition.

4. Part I of the article provides an outline of the relevant provisions of the Act as amended and the motivations behind the new regime. Part II critiques the amendments, providing practical examples of the difficulties posed for NTRBs. I conclude with an overview of the possible social and political effects of the amended NTRB regime.

   The New Representative Body Regime

5. NTRBs were established under the Act to assist and represent Aboriginal and Torres Strait Islander peoples in relation to native title matters. The Native Title Amendment Act 1998 (Cth) (the Amendments) introduced, in two phases, changes the ways NTRBs are to operate. Phase one, which commenced on 30 October 1998, introduced transitional arrangements.[6] The Amendments provide that phase two[7] may commence either 12 months from the commencement of phase 1 (that is, 30 October 1999 or at a later date fixed by the Minister.[8] Within this period, the Minister was required to invite applications from existing NTRBs and to subsequently appoint a NTRB for each region (regions being similar to, but not mirroring, Aboriginal and Torres Strait Islander Commission regions), a process known as "rerecognition".[9] At the date of writing, the applications for rerecognition have been received by the Minister and the transitional period extended to June 2000.

6. The phase 2 amendments constitute comprehensive changes to the manner in which the NTRBs operate. They provide, inter alia, for the process by which NTRBs are to be rerecognised, the mandatory functions of NTRBs (replacing discretionary functions) and the manner in which such functions are to be exercised. The purpose of this statutory framework is, according to the Aboriginal and Torres Strait Islander Commission, to ensure that NTRBs "operate as professional service delivery organisations" and to "contribute to the proper function[ing] of the Act".[10] It is intended that the amendments "generate greater confidence in these organisations, to the benefit of all parties and in doing so ... contribute to greater certainty". [11]

   The Statutory Framework

7. The core mandatory functions of a NTRB are:
   • Facilitation and Assistance - that is, to prepare native title applications and assist native title interest holders in proceedings concerned with applications, future acts, agreements, rights of access and other matters; [12]
   • Certification - to certify applications for Native Title determinations and to certify the registration of Indigenous Land Use Agreements.[13]
   • Dispute Resolution - to promote agreement between NTRB constituents and mediate disputes.[14]
   • Notification - to ensure that persons with a possible native title interest are informed of future acts and of the time limits for responding.[15]
   • Agreement making- to be a party to Indigenous Land Use Agreements.[16]
   • Internal review - to have and promote a process by which NTRB constituents can review decisions and actions of the NTRB.[17]

8. The NTRB must determine priorities in exercising the mandatory functions, although the primary priority must be the protection of the interests of native title holders.[18] There are additional mandatory functions which are largely concerned with cooperation between NTRBs, consulting Aboriginal and Torres Strait Islander communities, and providing education to Aboriginal and Torres Strait Islander communities on native title matters.[19]

9. Finally, the amended Act provides overriding principles for performing the functions. These are that the functions should be performed in a manner which: is timely, with a view to statutory timeframes;[20] maintains organisational structures and administrative processes which promote representation of persons who hold or may hold native title in the area;[21] maintains NTRB organisational structures and administrative processes which promote effective consultation with Aboriginal people and Torres Strait Islanders in the area;[22] and ensures that NTRB structures and processes operate in a fair manner.[23]

10. "Fairness" is to be ascertained with reference to: the opportunities for Aboriginal and Torres Strait Islander peoples to participate in NTRB processes; the level of consultation with Aboriginal and Torres Strait Islander peoples; procedures for making decisions; executive conduct rules; the nature of management structures and processes; and the procedures for reporting back to Aboriginal and Torres Strait Islander peoples in the area.[24]

11. An additional layering on the way in which the NTRB is to operate is the set of factors to be considered by the Minister in determining whether to recognise (or rerecognise) a NTRB. These largely replicate the overriding principles. The Minister must be satisfied that the body:

    (a) will satisfactorily represent native titleholders or potential native titleholders;
    (b) will be able to effectively consult with Aboriginal and Torres Strait Islander people; and
    (c)&(d) will be able to satisfactorily perform its functions.[25]

12. In determining (a) and (b) the Minister must take into account whether the body's organisational structures and administrative processes will operate fairly.[26] Fairness is to be determined with reference to those matters described above.[27] The Minister may take into account any other matters s/he sees fit.[28]

13. The Minister may withdraw recognition. The mandatory grounds for withdrawal are if the body requests withdrawal or ceases to exist.[29] Of more relevance to this article, are the discretionary grounds. These apply if the body is not satisfactorily performing its functions, not satisfactorily representing native title holders or not consulting effectively with Aboriginal and Torres Strait Islander peoples in the area.[30]

14. In addition to the requirements for performing functions, there are particular accountability provisions including provisions concerned with strategic planning and corporate liability. These operate in addition to existing statutory frameworks which affect the functioning of the NTRB, such as the Aboriginal Councils and Associations Act 1976 (Cth). The extent of the accountability provisions has been criticised by ATSIC as being confusing, bureaucratic and inefficient, but that is another issue.[31] However, the accountability provisions indicate the onerous scrutiny under which the NTRBs are expected to exercise their functions, a scrutiny and accountability which comes from both their constituency and government regulatory regimes.

    Background to the Amendments

15. In 1994/5 ATSIC undertook a review of the effectiveness of NTRBs, as they existed under the provisions of the original Act. According to the 1995 Report of the Review (the Parker Report), "there was a strong view [by the Review Committee] that the future workability of the Native Title Act 1993 is critically dependent on the existence of efficient and effective Native Title Representative Bodies."[32]

16. The intent of the NTRB provisions of the 1993 Native Title Act was to empower and assist Aboriginal people to pursue their native title rights.[33] Presumably, the provisions were sufficiently flexible to permit a degree of self-determination in keeping with this goal. However, the cost of such flexibility, according to the Parker Report, was reduced efficiency and a tendency to inflame rather than diffuse disputes amongst native title parties in a particular area.[34] This was exacerbated, it is claimed, by poor coordination of the conduct and funding of native title claims and the use of adversarial approaches to establishing native title rights.[35] Concerns with the previous, flexible, NTRB regime were reflected in comments by indigenous communities to ATSIC and Parliamentary forums, including expressions of dissatisfaction over a perceived lack of clarity in the roles and duties of NTRBs and of the appropriate processes of accountability to the communities which NTRBs represent.[36]

17. Three central themes of the Parker Report are apparent. NTRBs should operate on a professional service delivery model, which would include the appointment of suitably qualified and experienced staff and the development of corporate plans, policies and procedures to guide operations. ATSIC guidelines should accordingly be developed and appropriate funding and resourcing made available to permit NTRBs to operate effectively and efficiently.

18. The second theme is concerned with ensuring that NTRBs are responsive and accountable to their communities through, primarily, the establishment of broadly representative organisational structures. It is the expectation of both government and Indigenous people that, "NTRB's not only ...operate and structure themselves to ensure equitable, 'democratic' access to their services, but also to do so in a manner that is culturally authorised by indigenous society."[37] Finally, the Report points to a clear concern with the resolution of conflicts between indigenous groups, with a view to reducing the number of competing native title actions and to ensuring equitable treatment of native title parties.

19. The result is a recommendation that the NTRBs exercise the following mandatory functions:[38]
    • to produce policies and procedures for managing native title claims and future use notifications;
    • to be involved in providing education on native title;
    • to establish organisational structures which are broadly representative of indigenous communities in the NTRB areas;
    • to produce annual corporate plans, including the establishment of priorities and guidelines for exercising their functions; and
    • maintain a process for client accountability.

    An additional function is to undertake mediation in intra-community conflicts.

20. The Native Title Amendments Act 1998 is clearly reflective of the Parker Report concerns and recommendations on NTRBs, and of those expressed by members of the indigenous communities. As Senator Minchin commented during Senate debates:

    [we] are effectively implementing the Keating government's 1995 review of representative bodies - a review largely conducted by Aboriginal people..."[39]

    In doing so, he suggests, the goal is "about native title claimants getting the best possible service to facilitate their claims and to facilitate recognition of their common law native title".[40]

    Critique of the Amendments

21. Subsequent to the passing of the amendments, ATSIC undertook a review of NTRBs. The object of the Consultancy (the Rashid Report) was to:

    review the relationship between funding levels and functions of [NTRBs] and to assess future funding and resource requirements of NTRBs brought about by the Native Title Amendment Act 1998.[41]

22. The Rashid Report is useful in identifying the resource and structural needs of bodies undertaking NTRB functions, pointing out that funding inadequacy has implications for the ability of NTRBs to satisfactorily perform their functions. However, of relevance to this article, are those discussions which focus on the difficulties posed by the mandatory functions for NTRBs. It will be problematic for NTRBs to effectively exercise the functions within the framework of principles in any absolute way, even if funding levels were at a premium. This is because of the broad range of functions and of the difficulties of mediating between two cultural systems. Without clearer indications within the Act of the weighting to be given to the various functions and overriding principles and a clarity in the perception of the Minister of the task (in cultural terms) at hand, the NTRBs may be subject to the Government's priorities (or agenda) of the day. This is particularly alarming given the fact that NTRBs will often be involved in legal proceedings against the Government.[42] A number of examples of the potential difficulties are outlined below.

    The Overriding Principle: Consultation And Representativeness?

23. As observed above, one of the overriding principles for NTRBs in exercising their mandatory functions is the need to consult with and represent Aboriginal and Islander communities. However, when the Act says "represent" is it referring to the need for NTRBs to advocate for constituents, or to represent their viewpoints; that is, is it concerned with representation or representativeness? Does the Act reflect the Parker concerns of representativeness, community accountability and cultural authority?

24. The Rashid Report interprets the requirement for NTRBs as being able to represent, that is, advocate for, clients.[43] This is a move from the original provisions of the Native Title Act 1993 which emphasised the need for NTRBs to be representative.[44] On the other hand, the ATSIC information package provided to NTRB Applicants as part of the phase 2 proceedings, provides that in order to demonstrate an ability to represent persons, information should be provided on, for example, membership criteria, the process for choosing directors, whether the structure permits direct representation of all native title groups on the Board of Directors, and the opportunities for clients to participate in decision-making.[45] This suggests a concern with processes for representativeness, not just representation. While the package includes a proviso that the information contained does not constitute legal advice it would be a brave NTRB that would ignore the ATSIC instructions in favour of a narrow reading of the legislation, given that ATSIC is involved in the recognition process. The advice indicates that "representativeness" is one of the "other matters" which may be taken into account by the Minister in making a determination.

25. In short, NTRBs must consult with their constituencies and have organisational structures and processes which permit them to be representative of the Aboriginal and Islander communities within their areas. Arguably, this permits NTRBs to remain sensitive to the issues of their communities, and to work at the pursuit or resolution of matters in a cultural sensitive fashion, with a view to adopting and maintaining culturally appropriate processes. Without such processes it may well be difficult for NTRBs to exercise certain mandatory functions, which require an understanding and knowledge of their "local" communities.[46] For example it may be difficult for NTRBs to enter into a meaningful dialogue with their constituents in order to resolve conflicts between individuals or communities,[47] to promote collaborative approaches to protecting native title and to minimise the number of competing native title related actions[48] Clearly, this is why it is beneficial that Aboriginal and Torres Strait Islander organisations be granted the NTRB functions rather than private sector players. This is what is alluded to by Senator Woodley in Senate debates over the NTRB amendments:

    [w]e certainly are committed to having representative bodies that are the appropriate auspices for sorting out many of the disputes. They know their own people and they are on the ground and can hear the different sides of the argument.[49]

26. Despite the requirement, the degree to which a NTRB can be representative is largely not a condition of NTRB processes and structures but a condition of the more substantive elements of the Act. It may be a positive sentiment to require as a condition of funding that NTRBs should represent (in the representative sense) and consult on native title issues, particularly if the amendments are to maintain a commitment to some level of self-determination.[50] Arguably, the requirements of the Act, coupled with the NTRB's obligations in relation to the mandatory functions, at times simply do not permit effective consultation and representation. The protection of native title may require a speedy response, not permitting proper process. Moreover, the functions may give rise to instances in which the NTRB is required to act, perhaps to the benefit of a single native title group, in a manner which is contrary to that which would be appropriate as a representative of the Aboriginal and Torres Strait Islander peoples in the area.

27. The effect of such tensions in function is that the NTRB may not be effectively meeting its full mandate, which could have implications for its relationship with its communities and for its funding. It is not the over all effectiveness that counts. It is that at varying times, government and/or indigenous constituents could claim that the NTRB is failing in the exercise of one or more of its functions.

    Certification

28. Section 203BE of the Act requires that NTRBs certify that native title applications and Indigenous Land Use Agreement (ILUA) registrations are properly authorised by the relevant members of the community. In determining whether authorisation for the purposes of an ILUA has occurred, the NTRB must make reasonable efforts to ensure that all persons who may hold native title in the relevant area have been identified and make a declaration accordingly.[51] In the case of native title applications, if the area is covered by more than one application the NTRB must make all reasonable efforts to achieve agreement between applicants and minimise the number of applications covering the area, prior to certification.[52]

29. These requirements place a significant burden on NTRBs to know the individuals and groups within an area, the relationships between them and the negotiations that may have preceded an application or ILUA. In the case of native title applications, the conditions of certification are in addition to other related statutory requirements (as discussed above) which, in turn, may need to be exercised within a short timeframe.

30. Arguably, a failure to satisfactorily meet the conditions, or to refuse to certify, could give rise to legal liability on the part of the NTRB. For example, the Rashid Report states that a refusal to certify a native title application "leaves the decision making process of an (sic) NTRB open to attack on both negligence and administrative review grounds."[53] The Report argues, further, that a NTRB that performs its certification function to the base minimal level could be liable in negligence if the application was rejected by the Registrar on the basis that the supporting information necessary for certification was inadequate. The question of liability depends upon what the duty of care towards its constituents is, a question that is yet to be answered.[54] These possible legal ramifications may have the effect, according to Rashid, of establishing an obligation by the NTRB to actually ensure that the application meets the registration standard, or to give detailed reasons why certification cannot occur.

31. Finally, the requirement of NTRBs to try to streamline applications may run counter to the NTRB's consultative and representativeness duties, as well as its ability to manage and prioritise claims in the area. As the Rashid Report points out:

    ...if the responsibility placed on NTRBs to minimise claims and impose agreements between claimant groups becomes too onerous, then claimants are likely to seek alternative representation and the opportunity for NTRBs to orchestrate and prioritise claims could be lost.[55]

32. The certification function in relation to Indigenous Land Use Agreements (ILUA)[56] are similarly burdensome. According to the Rashid Report, because an ILUA may provide for the extinguishment of NT, the negligence problem is even more critical.[57] The effect of an ILUA on a person's native title interests or the validity of the ILUA may be at question, if the NTRB has certified that all relevant parties have authorised the agreement but have failed to identify a party who holds or may hold Native Title.

33. Whatever the outcome - claims of administrative wrong, negligence or a loss of the ability to coordinate and prioritise the management of native title matters in the area - the NTRB is at risk of an assessment by the Minister that it is failing in its duties.

    Notification

34. A NTRB must ensure as much as is reasonably practicable that future act notices[58] are brought to the attention of any person who holds or may hold native title in the area to which the notice pertains, and advise them of timeframes for responding.[59] This includes persons who reside outside of the designated area over which the NTRB has jurisdiction. It not only requires that NTRBs notify those it knows to be concerned with the area, but also that NTRBs actively attempt to identify such persons.

35. Whilst the requirement is only "as far as is practicable", the duty is to bring the notice to the attention of such persons. This implies a greater duty than merely sending notices to a contact person in a community. It suggests that the duty is to positively attempt to find such persons and ensure that they appreciate the relevance of the notice. Given that, as has already been discussed, many of the groups who may have an interest in native title are in remote areas, the ability to satisfy this duty is difficult. The sheer volume of future use notices processed in relation to some areas[60] severely counters the ability for NTRBs to be proactive in bringing matters to the attention of parties and in assisting in formulating strategic plans of action highly problematic (with an individual or individual group, or collaboratively between groups and/or individuals).

36. The Rashid Report suggests that a failure to take appropriate steps could render the NTRB liable in negligence or constitute a breach of statutory duty.[61] What constitutes appropriate action in light of the above issues is difficult to discern but could be somewhat burdensome, widening the scope for NTRB liability.

37. The timeframe for responding to notices commences from the notification date given in the notice and not from the date of receipt by a relevant party. The duty to notify, and then to respond, with the additional requirements described above, for example, in relation to lodging an application, combined with overriding principles of effective consultation and representativeness and limited timeframes, creates significant scope for failure, irrespective of the efficiency of NTRB systems and processes. The effect is that the onus of duty to notify falls squarely on the NTRB. Once the party proposing a future act sends out notices, that party can wash its hands of any responsibility for ensuring that a party whose title might be affected by that notice becomes aware of it. The proponent can pursue proposed future acts without liability, with the NTRB potentially carrying the legal burden (and the ramifications) of a failure to notify potential native title claimants.

    Conclusion: The Effect of the NTRB Amendments

38. The few examples cited above should provide sufficient indication of the highly onerous task for NTRBs of satisfying their statutory duties under the Amended Act. An unsuccessful attempt to juggle such irreconcilable, competing demands gives rise to a whole range of implications of a legal, administrative and cultural nature in relation to NTRB constituents and members, governments and the wider community.

39. The first effect is on the relationship between the NTRB and its constituents. A NTRB which is confronted with administrative or negligence actions by aggrieved constituents is not likely to instil confidence in its constituents. The same can be said of a perception by NTRB constituents that a NTRB is not operating in a culturally appropriate manner. These two issues may give rise to political instability - aggrieved community members participating in the democratic processes of the organisation to effect change. However, if the reason for the problem is statutory rather than political, the risk is political upheaval as community members seek to effect change which is unattainable within the confines of the statutory regime. This would be destructive and unproductive, and could ultimately lead to the demise of the organisation's ability and mandate to operate as a NTRB.

40. Second, and perhaps flowing from the first, is the effect on the relationship between government, as the holder of the purse-strings, and the NTRB. Actions in negligence or for breach of statutory duty, or a general observation of the NTRB's inability to juggle all the elements of its duties, could equally affect the confidence of government in the NTRB's ability to exercise its statutory functions. There would clearly be scope for arguments that the NTRB is failing to "operate as [a] professional service delivery organisation" and to "contribute to the proper function[ing] of the Act."[62] At its best, this could give rise to well meaning government intervention, with the potential to withdraw recognition of the NTRB and to then recognise an alternative body. At worst, given that the process for derecognition is highly discretionary and the weighting to be given to the Minister's exercise of discretion is not explicit, there is scope for political intervention, or, as suggested by Senator Bolkus, "political cleansing".[63] Given the difficulty of the task, it is probable that grounds for defunding, if the Minister was so politically motivated, could always be found. This is not to suggest that the current Minister would be so motivated, but a body of law which gives rise to such a possibility is certainly open to scrutiny.

41. The final effect to which I wish to draw attention is a more subtle and insidious one. It arises from establishing a set of statutory duties which are effectively impossible to fully and properly exercise, thus setting up organisations for failure. This has cultural and social implications, which have already been alluded to by Senator Woodley in relation to the onerous accountability provisions of the Act. Senator Woodley argues that by placing more onerous accountability provisions on NTRBs than would ordinarily be the case for other, non-Aboriginal organisations, the implication is that Aboriginal organisations are in need of greater sanctions because of a propensity to criminality.[64] A similar argument of cultural mythologising may apply here; that is, that setting up NTRBs with mandatory functions that are highly problematic and subject to a perception of failure reinforces cultural myths that Aboriginal and Torres Strait Islander communities cannot manage matters of a legal and economic nature. This mythology is reinforced by the implication, by virtue of the representation and consultation principles, that there is a commitment to recognising Aboriginal processes. What the public does not know, and what is never quantifiably able to be proven, is that the substantive provisions of the Act severely compromise those processes.

42. The Act, including the Amendments, may well give certainty to government and to industry. It may also address some of the concerns expressed by indigenous communities. However, the over prescriptiveness of the Amendments create uncertainty for NTRBs which must always be engaged in what is largely a judgement call - their decisions in exercising the mandatory functions may always be called into question, no matter how vigilant their administrative processes; they may bear the brunt of constituent dissatisfaction because it is they who must "lay down the law" to their constituents and therefore may be seen to be unrepresentative when they are operating within the confines of the Act; and finally, they can easily become subject to political manoeuvring.

43. In light of these conflicts, the challenge for NTRBs is to organise procedurally in order to be able to illustrate the professionalisation of their organisations. In this respect, the work undertaken by Mantziaris and Martin to assist native title corporations to create a match between legislation and indigenous need might be instructive.[65] But as they remind us, the fit between the two is "not very good" although it exists within a space of recognition of both the Australian legal system and the relationship to land characterised by indigenous people.[66]

44. Ultimately, however, the problem remains: how can NTRBs juggle the cross-cultural issues? Despite the implication of an acknowledgment of indigenous cultural practices, it is Aboriginal and Torres Strait Islander Organisations who carry the burden of balancing two conflicting cultural processes, not Government, not industry. Despite the desire to create professional service organisations, no degree of professionalism can, in an absolute way, discharge the burdens created by the mandatory and related functions, and the substantive provisions of the Act. A chance to excel is what is essentially provided. And yet, even so, the possibilities for government intervention remain.