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by Craig Jones[1]
The native title process is for the most part driven by courts, court related processes and the legal culture. Indeed, native title is itself a product of the court, a creature of the common law that has become an expression of the Native Title Act 1993 (Cth) (‘NTA’).
In this sense the notion of native title is very alien to most parties involved in the native title process, including Indigenous peoples. Ironically, the NTA has also provided a space for the interaction of parties outside of the court. The NTA sets up a regime for mediation about matters of relevance to the parties themselves and only partially dictates the matters to be discussed. However, the shadow of the court on native title mediation is very heavy. Mediation is often managed by lawyers, involves parties who are represented by lawyers and occasionally involves these lawyers using negotiation methodologies that are more relevant to the courtroom than the mediation space.[2] The aim of this article is in part to reclaim the mediation territory for the parties themselves – to describe native title as an opportunity for Indigenous development rather than as a product of the law of Australia. Thus the native title process, as it is described in this paper, loosely titled a ‘principles process’, ensures that parties are able to establish a framework for agreement that deals with their needs and provides proper instructions for their legal representatives. This paper seeks to privilege mediation over the court process with a view to establishing a viable, practical coexistence across Australia – coexistence formed from local agreements that will ultimately affect the way Indigenous and non-Indigenous Australians view each other.[3]
Native title in Australia was not derived in a vacuum – it is the product of an historical process, though not necessarily the inevitable product of history.
On 23 August 1966, Vincent Lingiari led the Gurindji people from Wave Hill Station in what has become known as the ‘Walkoff’. This event has been credited as the beginning of the land rights movement in the Northern Territory. The next 25 years saw the enactment of a number of land rights laws throughout Australia. In the 1970s there was a change in government policy from the assimilation stance of previous eras to polices promoting Indigenous self-determination. However a national land rights scheme was not to be. The Hawke Labor Government came close in 1983 but was ultimately thwarted by the power of the mining industry in Western Australia. Ironically, the desire for land rights was what prompted Eddie Mabo to seek a remedy in the courts. His desire culminated in the High Court’s Mabo[4] decision in 1992.
Mabo recognised native title as part of the common law of Australia[5] and overturned Blackburn J’s 1971 decision in the Federal Court which recognised that while the Yolngu (and by implication other Indigenous peoples in Australia)
had established a subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people lived and which provided a stable order of society remarkably free from the vagaries of personal whim or influence ... [they] had established a recognizable system of law which did not provide for any proprietary interest in the clans in any part of the areas claimed.[6]
In other words, the Yolngu people had (as has every other human society) a system of law and custom but Australian law could not recognise it. I note that many of the Yolngu people involved in this case are still alive today, such that the Judge’s observations about the system of Indigenous law refer to an extant system. His observations in that sense are not archaeological.
Native title has the potential to be an opportunity, not only for Indigenous Australians but for all Australians. Native title should not in my view be only about the adjudication of rights, but about the setting of the negotiation table. In order for the opportunity to be taken however, the table, like any other, must be governed by a set of manners. Negotiation is not a free-for-all with the strongest gaining all of the benefits and the weakest taking the burden of all the costs.
Since the initial Mabo decision the native title court process has proven to be very expensive and longwinded and has provided limited benefits to Australia’s Indigenous peoples. The total resources expended on the Ward[7] case by all parties could have, for instance, been better spent on buying the Kimberley pastoral leases, with enough money left over to promote the development of a viable cattle industry in which Indigenous and non-Indigenous parties could participate on an equal footing. In other words, negotiating parties could have insisted on a focus on development rather than the adjudication of rights.
In his 2003 Social Justice Commissioner’s Report, Bill Jonas promotes an Indigenous right to development.[8] What if native title was not about who holds it, what rights and interests they hold and how those rights and interests interact with other peoples’ rights, but rather a question of development? A constructive question might be: now that we are at the negotiation table, what would be the best outcome for all involved? Jonas framed this question in the following way: ‘What would a government and a native title claim group discuss if the agreed aim of the native title process was the realisation of the group’s right to sustainable development?’[9]
It is an excellent approach, however the notion of negotiation needs to be unpacked. Most parties at the table give little or no thought to the style of negotiation to be employed in seeking to reach agreement and as a consequence often fail to reach an effective agreement. The rules or manners of the negotiating table are usually confined to such things as not talking over one another, not interrupting and no swearing.[10] Simple matters such as where the meeting is conducted can be very significant. For instance, much of my mediation and negotiation work has been conducted in rural areas. The conduct of a meeting on the pastoral lease and the country of the traditional owners provides a contextual advantage to both the resident pastoral parties and the Indigenous parties.
So there are two issues here: the question being asked and the method of decision-making around that question. Taking the development issue as a given, I want to focus on the method of negotiation as a way of addressing that question.
Mediation is not a less formal version of the court. The general purpose of native title mediation is defined by the NTA[11] as:
[T]o assist the parties to reach agreement on some or all of the following matters:
(a) whether native title exists or existed in relation to the area of land or waters covered by the application;
(b) if native title exists or existed in relation to the area of land or waters covered by the application:
(i) who holds or held the native title;
(ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area;
(iii) the nature and extent of any other interests in relation to the area;
(iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);
(v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.[12]
Section 86A is focused on matters that directly relate to a determination of native title. However the NTA is not restrictive about the purpose of mediation and the process of mediation is not described by the Act in any great detail. Certainly no particular mediation methodology is advanced or preferred. Justice French in Frazer v Western Australia[13] indicates that the purpose of mediation under the NTA includes
the development of a detailed negotiation protocol, the exchange of information between parties, the identification of issues to be resolved and times and venues of conferences under the Act in furtherance of the mediation process.[14]
In this case French J gave parties some lessons in mediation, in the form of court orders.
The National Native Title Tribunal (‘NNTT’) has a number of phases in its approach to mediation.[15] The NNTT, the body primarily responsible for mediation under the Act, has described its approach to mediation as comprising a number of phases. These are:
1. Information gathering and giving.
2. Process design.
3. Capacity-building and party development.
4. Exploration and identification of issues, interest and options.
5. Mediation, the negotiation of agreements.
6. Closure.[16]
The NNTT process is derived from the interest-based mediation model.[17] The interest-based model is based on a number of basic steps:
| • | Separate the people from the problem; |
| • | Separate interests from positions; |
| • | Identify options for mutual benefit; |
| • | Test the options against objective criteria.[18] |
One of the most important aspects of mediation is the negotiation design process; the ‘meat’ on the structure outlined above. The design of a mediation process is derived from the question: what are we here for? This question is founded in the context of the parties, the detail of the issues between them and with an eye for possible outcomes.[19] However, mediation design is not about achieving the outcome per se – it is in fact about structure and presenting a process whereby the parties involved in the mediation can effectively address the issues between them. The design of mediation and negotiation in a native title context would necessarily need to consider Aboriginal or Torres Strait Islander approaches to conflict resolution as well as other specific cultural implications.
Any mediation model, approach or system for negotiation involving Indigenous peoples will need to address the following issues:[20]
| • | Mediation currently uses a Western model for dispute resolution and as such may advantage Western cultural groups over Indigenous groups.[21] |
| • | This Western model may also disadvantage Indigenous peoples in cross-cultural disputes or negotiations because of a power imbalance between differing mediation methodologies.[22] |
| • | Mediators in native title matters are generally not Indigenous people and consequently may be seen by Indigenous peoples to be biased toward non-Indigenous people and concerns (if not actually biased in this manner). |
| • | Indigenous parties may also see Indigenous mediators as problematic – an Indigenous person from the same group or closely related group may be seen to have biases toward particular Indigenous families or clans. There may also be difficulties for the Indigenous mediator in the sense that it is culturally inappropriate for Indigenous people to deal with land issues outside of their own country. On the other hand, many Indigenous groups take the view that an Indigenous mediator with a relationship to the people involved in a dispute would be a positive advantage, if not a necessity.[23] |
| • | Mediation of matters within the native title context could deliver outcomes that are appropriate in the native title domain and not the Indigenous domain (and consequently do not represent durable resolutions of issues). An example of this kind of problem sometimes occurs with court imposed timelines for the resolution of issues. These timelines may result in outcomes that have not been fully canvassed with the native title claimant group. |
| • | The native title claim group may be a group of Indigenous people who would not normally make decisions collectively and consequently need to develop a decision-making process. |
The mediation or negotiation of native title matters raises a number of issues which must be considered when designing the process. The ‘principles’ approach is one attempt to bring a number of these considerations into the one design scenario. This technique is directed toward achieving a set of agreement principles which are owned by the parties themselves rather than their representatives or more powerful parties. The technique has been particularly effective in negotiations dealing with pastoral access and mining activity. The following section briefly outlines the principles process through highlighting its application in some recent North Queensland pastoral land use and access negotiations.[24]
The initial steps involve the establishment of a set of negotiation protocols between the parties.[25] The parties, after setting some rules of engagement to help build trust, work toward setting up a series of principles in their own language that address the issues between them.
Parties are often alienated from the negotiation process through the use of ‘difficult language’ or terse legal argument. In recent pastoral negotiations in North Queensland, parties - pastoral and Indigenous - had found that discussions between legal representatives had dominated negotiation processes and taken power away from the parties themselves. In order to take power back, the parties engaged in a process of local, on-country and face-to-face mediation without the benefit of direct legal representation. It is not a necessary part of the process to completely remove lawyers from the initial steps, rather that the design of the negotiation should focus on achieving the parties’ dominance of the style and content of proceedings.
The initial step in this process was the identification of relevant issues. The issues were identified through discussion and written down in the parties’ own language. This process involved two steps: separate party meetings where information provision and capacity building occurred, and joint party meetings where issues were identified and recorded in the parties’ own language.[26]
Once the issues are recorded the second step is to achieve a memorandum of understanding or informal agreement – in the case of the North Queensland matters, memoranda of understanding were struck about land use and access. These memoranda provide the principles for agreement between the parties and importantly provide instructions to the legal representatives of the parties in the drafting of, for instance, Indigenous Land Use Agreements. The process allows for power differences within mediation to be managed more effectively as well as giving parties a clear sense of ownership of the outcomes.
The mediation of agreements between native title holders and other parties provides a viable alternative in many cases to the resolution of issues in Australia’s courts. The challenge remains, however, to provide a consistent practical method as a basis for cross-cultural agreement-making practice. The use of interest-based mediation with a focus on design and perhaps the use of the principles process can provide a basis for this approach. However, the choice between mediation and court will always be a strategic one for the parties.
The making of agreements between local peoples (Indigenous and non-Indigenous), while perhaps not directly addressing the development of Indigenous rights in Australia, does give people an opportunity to work together. The making of agreements is about the future and in that sense the development of practical relationships between the different interest groups. To this extent native title agreements and agreements struck outside of the NTA represent progress toward reconciliation. Ultimately these agreements will cover many areas, including areas where native title is determined not to exist or may have been extinguished in the past, and deal with different issues. If this essence of agreement is genuinely owned by the parties involved, and if the agreements provide practical solutions to the issues between the parties, then they will begin to influence the development of Indigenous rights not by finding a settlement at law but by replacing the fear of the ‘other’ with a mutual respect for each other’s aspirations.
Associate Professor Craig Jones is the Director Native Title Studies Centre at James Cook University, Cairns and is also a PhD Candidate in the Aboriginal Environments Research Centre at the University of Queensland.
[1] I would like to acknowledge the support of the Queensland Government for my doctoral research through the provision of a Smart State Grant.
[2] Of course not all legally trained people are adversarially inclined.
[3] It is not my intention to argue that there is no role for litigation in advancing Indigenous aspirations.
[4] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, (‘Mabo’).
[5] Ibid.
[6] Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 143.
[7] Western Australia v Ward (2002) 213 CLR 1.
[8] Human Rights and Equal Opportunity Commission, Native Title Report 2003: Aboriginal and Torres Strait Islander Social Justice Commissioner (2003).
[9] Ibid 28.
[10] All important in their own right.
[12] The matters set out in paragraphs (a) and (b) are based on those required under section 225 of the NTA for a determination of native title.
[13] Frazer v Western Australia [2003] FCA 351; (2003) 198 ALR 303.
[14] Ibid [28] (quoted in Melissa Perry and Stephen Lloyd, Australian Native Title Law (2003) 527).
[15] See transcripts of the sessions of the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund’s inquiry into the Effectiveness of the National Native Title Tribunal for comments on NNTT mediation <http://www.aph.gov.au/hansard/joint/commttee/j-nat-tt.htm> at 26 September 2004.
[16] Graeme Neate, Craig Jones and Geoff Clark ‘Against All Odds: The Mediation of Native Title Agreements in Australia’, (Paper presented at the Second Asia Pacific Mediation Forum, Singapore 10-22 November 2003) 20-24.
[17] Pat Lane, ‘Have We Got a Deal for You? Mediating Native Title’ in Lisa Strelein and Kado Muir (eds), Native Title in Perspective (2000) 35-64.
[18] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating An Agreement Without Giving In (1991) 15.
[19] Focusing too much on outcomes in the design of mediation processes is not effective. See R A B Bush and J P Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (1994) for an extended criticism of this problem. If the question is heavily focused on the determination of rights then any mediation process will be difficult. The determination of rights is perhaps a question best answered by a court in an adjudicative process.
[20] Craig Jones Mending Fences: An Analysis of Cross-Cultural Mediation Techniques in Australia's Rangelands (draft Doctoral Thesis, University of Queensland, 2004).
[21] Scott Beattie, ‘Is Mediation a Real Alternative to Law? Pitfalls for Aboriginal Participants’ (1997) 8 Australian Dispute Resolution Journal 57.
[22] Mick Dodson, ‘Power and Cultural Difference in Native Title Mediation’ (1996) 3 Aboriginal Law Bulletin 8.
[23] For a discussion of the vexed question of mediator neutrality in matters involving Indigenous peoples, see Toni Bauman and Rhian Williams, ‘The Business of the 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, 2004) 29.
[24] The negotiations have not been identified to respect the confidentiality of the mediations. The points discussed are taken from a number of mediations rather than any particular matter.
[25] I have not included all the steps or design considerations that a mediator might take into account as each negotiation is unique.
[26] This is not an easy step to achieve where the people involved do not share a common first language. Certainly the issues should not be recorded in what is commonly referred to as legalese or bureaucratese.
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