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Chapter 1 : The Consultations

During the 2004 reporting period I have embarked on a series of consultations focusing on the ideas and principles that were contained in a Discussion Paper, released by my predecessor as Social Justice Commissioner in June 2003. The Discussion Paper was entitled Promoting Economic and Social Development through Native Title (at Annexure 1). This chapter seeks to record and develop the ideas and discussions that were generated in the consultation process. 1

Before turning to those discussions it is important to note that the consultations were part of a broader process that started with the research and analysis contained in the Native Title Report 2003. The ideas emerging from the 2003 Report were condensed into a number of principles on which to base the economic and social development of traditional owner groups through native title agreement making. These principles require native title agreements to:

From August to October 2004, my staff met with Native Title Representative Bodies (NTRBs) throughout the country, as well as a limited number of peak bodies, government representatives and academic researchers, to discuss the approach taken in the Discussion Paper; that of directing native title to the economic and social development of the traditional owner group. I am aware that the consultations conducted thus far do not by any means represent the entire spectrum of views on this topic, and it is intended that further consultations will take place with other stakeholders in the next reporting period throughout 2005. However, given my limited resources, I considered it necessary, in the first instance, to obtain the responses of those who represent Indigenous interests in the native title process.

Throughout the consultations, NTRBs presented their detailed knowledge of how the native title system operates either to impede or facilitate the economic and social development of traditional owner groups. My staff was able to tap into the depth of experience that has developed within NTRBs among their managers, policy officers, future act officers, lawyers, field staff, Indigenous liaison officers, and community development officers. While not all these positions exist in every organisation, taken as a whole, NTRBs present a vast wealth of specialised and general knowledge that can direct native title policy towards outcomes that benefit Indigenous people. For these reasons, I thought it important that the principles proposed in the Discussion Paper be subjected to the thought and experience that presently exists within these organisations.

As indicated, the consultations focused on the ideas in the Discussion Paper and, in particular, the proposed principles, as a basis for addressing the economic and social development of traditional owner groups. After getting an overview of the significant issues of concern to the particular organisation, my staff directed the participants to the following questions:

Inevitably, the response to these questions differed significantly between organisations, depending on a range of factors. Some of the factors that determined the extent to which the native title system provided a vehicle for economic and social development in a particular area included:

These and other differences shaped the responses we received to the questions posed. Nevertheless NTRBs repeatedly raised some key issues that must be reappraised in order to direct native title to the economic and social development of the traditional owner groups in their areas. These themes are:

The rest of this chapter is a discussion of these themes as they arose in the consultations. It seeks to capture the issues as they were presented and develop some of the more important issues through additional research and analysis.

Throughout this Report 'traditional owner' is used as a global term referring to native title claimants and/or holders; traditional owners whose rights are extinguished by tenure or who fail to satisfy the connection standards of the Native Title Act 1993 (Cwlth) (NTA) but who are recognised through the traditional ways of defining who has rights to country, and traditional owners recognised under state, territory and Commonwealth land rights legislation. However, the focus of this model is directed towards the processes that are triggered by or recognised under the NTA.

1 Identification of the traditional owner group

Identifying the group that, under traditional law, have responsibilities and entitlements to a particular area of land is very important, not only within the legal framework of the native title system, but also within the framework of Indigenous relationships and values. Traditional ownership is an important basis of authority and respect within Indigenous relationships. It is an important part of the way Aboriginal people relate to kin and community.

The principles presented in this Report for promoting economic and social development through native title, seek to integrate the structures and values that are important to Indigenous peoples with the processes that will maximize the economic and social development outcomes for traditional owner groups. Indeed it postulates that economic and social development that does not take account of these values and structures will not, in the long term, be sustainable or productive.

The consultations that my staff have conducted so far confirm that identification of the traditional owner group is not only important to Indigenous people it is also important in maximizing the opportunities for economic and social development that can be generated from the native title system. This is because governments and companies seeking to work in partnership with traditional owners need to be confident that they are dealing with 'the right people'.

The consultations confirm that identifying the traditional owner group within a native title system that is directed to their economic and social development must take account of these two factors. First that the process of identifying the group gives confidence to Indigenous people by reflecting the traditional ways of defining who has rights to country, and second, that it gives confidence to those seeking to develop productive partnerships with traditional owners that their dealings and investments will not be undermined in the future by claims from other groups and individuals.

My staff were informed in the consultations that the complexity of identifying the traditional owners of a particular area creates challenges for all stakeholders in the native title process. Traditional owners come under immense pressure to prove themselves within the legal framework and to resolve the membership of their group, as indicated by the Federal Court:

The proper identification of the native title claim group is the central or focal issue of a native title determination application. It is the native title claim group which provides the authorisation under s 251B [requiring the group to authorise those bringing the native title claim], and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made.2

Satisfying these demanding legal tests for authorisation and identification is resource intensive. Yet if these tests do not satisfy the requirement of Indigenous people, that the process reflects the processes that command respect and authority within their community and the requirement of non-Indigenous people wishing to engage with traditional owner groups then they will not provide a basis for the economic and social development of the traditional owner group.

Several respondents in the consultations were critical of the native title system in its early years, saying that the law and the procedures of the National Native Title Tribunal registered many native title claims that did not correspond to traditional boundaries and claimants that did not represent traditional owner groups. In 1998, there was a considerable tightening of the claim process through amendments to the NTA, including what groups had to do to authorise a claim and what the Tribunal required to register a claim. Nevertheless, there are still many applications to the Federal Court made by Indigenous parties unhappy with the composition of various claim groups. The Court has acknowledged the difficulties:

Native title determination applications deal with the concept of customary law and in most cases are made on behalf of a number of people. It is not surprising therefore that they generally involve more than usual practical and legal difficulties including, not uncommonly, disputes between competing claim groups or within the claim group. There can be considerable difficulty in resolving those issues. The difficulties are compounded if there is uncertainty about who is claiming native title in the land that is the subject of the application or if there are multiple claimants asserting essentially identical interests. To some extent, s 61 of the old Act [i.e. before the 1998 amendments] anticipated these problems and attempted to address them by requiring the applicant to describe or otherwise identify the persons with whom he or she claimed to hold native title. It did not, however, resolve the problems.3

In seeking to overcome some of these difficulties, as well as avoid enormous expenditure on litigation, governments have developed criteria that will enable them to settle native title claims through negotiation rather than litigation. Connection reports have arisen as a method of facilitating a negotiated outcome to native title proceedings while at the same time satisfying government that they are dealing with the traditional owner group for the area that who would be entitled to rights under the law of native title.

Like the legal tests that they replace, connection reports need to satisfy the two issues raised above if they are to provide a basis for encouraging economic and social development for the traditional owner group.

The role and preparation of connection reports is quite contentious. My staff were informed by NTRBs that connection reports require a substantial investment in terms of human and financial resources. Governments often expect to be provided with these reports before they will embark on similarly time and resource consuming tenure research. The findings of connection reports can then be redundant if tenure research locates a historic and extinguishing tenure.

Some states have not yet developed clear guidelines that enable issues of identification to be quickly and efficiently determined. The lack of clear guidelines in New South Wales for instance has caused difficulties and confusion for traditional owners wishing to access the entitlements that the native title system may make available to them.

In contrast, in South Australia Indigenous people through their NTRB, the Aboriginal Legal Rights Movement, have participated in developing the criteria by which connection is established at the administrative level to enable native title negotiations to commence. The process for developing these criteria and the criteria themselves are set out in the government's publication, Consent Determinations in SA - A guide to preparing Native Title Reports.4 The participation by the NTRB in the formulation of the criteria for identifying the traditional owner group for a particular area, ensures legitimacy of the process within the Indigenous community. It also establishes a good foundation for engagement between the traditional owner group and the government.

I commend the approach adopted by the South Australian Government as an approach consistent with important human rights standards, in particular, that there be effective participation by Indigenous peoples in the development of policies that affect their rights.5 Moreover it is consistent with General Recommendation VIII of the Committee on the Elimination of Racial Discrimination (the CERD Committee) which states that 'group membership shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.'6 Involving Indigenous people in the development of connection criteria ensures that the agreed approach is also one that reflects the standards that Indigenous people would apply to themselves.

The proviso to the principle of self-identification promulgated by the CERD Committee, 'if no justification exists to the contrary', allows the government to engage with the traditional owner group unless there are substantial disputes, overlapping claims or justifiable uncertainty in relation to the identification of the traditional owner group.

Connection report guidelines and negotiation thresholds vary throughout each state and territory in Australia. In some states negotiations can commence while connection is still being established and verified. Another approach is that used by Victoria, where there is a sliding scale of evidence based on the outcomes sought. For example, in relation to a future act where the Victorian Government is a party, the state will require that traditional owners provide basic certainty about the identity of the group; description of claimed rights and interests; traditional basis of connection and some evidence of traditional physical connection to a part of the land under claim.

In Queensland, one NTRB reported that many third party respondents in native title claims want to view connection reports during mediations. Similarly, some third party respondents in South Australia indicated their desire to play a role in the State's assessment of connection material. A Queensland NTRB considered that connection reports should not be provided to respondents, providing an opportunity to contest information in a connection report. I consider the assessment of connection material by third party respondents, inappropriate and unnecessary. The government has the responsibility and the necessary anthropological, historical and linguistic expertise to assess material and provide respondents with an overview of this assessment. It is unnecessary and a duplication of process and a consequent waste of time and money that respondents conduct assessment as well.

Despite some of the difficulties set out above, connection reports can provide a useful mechanism for identifying the members of a traditional owner group beyond the standards required for registration but without the expense of a litigated native title claim.7 However, as discussed, preparing connection reports can itself be a lengthy and resource intensive process if it merely requires a replication of the material that would be required in a court proceeding and turns out to be unnecessary after subsequent tenure searches. Delaying negotiations while such a report is prepared will also delay the traditional owner group engaging with the processes that can generate economic and social outcomes for their community. Consequently, unless there are substantial claimant disputes, overlapping claims or uncertainty, the first steps set out in the Discussion Paper principles could begin concurrently with the connection report research. That is, research for the membership of the traditional owner group may go hand in hand with assisting traditional owners think about their long term plans and goals. Progressing both connection reports and traditional owner goals for economic and social development simultaneously may bring parties to a negotiated outcome with both the traditional owner group and their goals clearly identified.

Summar

2 Governance

Good governance within traditional owner groups is necessary to implement the principles set out in the Discussion Paper (at Annexure 1). The importance of governance is highlighted by the second principle which requires that native title negotiations aimed at economic and social development 'provide for the group's capacity to set, implement and achieve their development goals'. This process of goal setting, decision making and management is crucial in achieving the economic and social development goals of traditional owners. During consultations one respondent succinctly commented that 'development and governance are interrelated and integrated'.

The issue of what constitutes good governance was frequently discussed during consultations with many respondents quickly identifying the links, opportunities and limitations for building strong governance processes and structures within the native title system. This section summarises the governance issues raised and also reports on some of the research and analysis that addresses Indigenous governance issues both in Australia and overseas.

In summary, respondents discussed the following issues related to governance:

Governance has become a concept frequently used in the Indigenous policy framework within Australia and can be defined as:

...[the] power, relationships and processes of representation, decision-making and accountability. It is about who decides, who has influence, how that influence is recognised and how decision-makers are held accountable.8

Governance has also been compared with sport - 'having the ability to organise a fair-minded winning team in any sport is good governance'9. Good sport needs clear rules, time frames, umpires, coaches, captains and the skills and tools to play the game well. Similarly, good governance needs:

Good governance within Indigenous groups must include all of these elements. However, it is also important that these elements are determined by traditional owners10 in consultation and partnership with NTRBs and governments. This means that the Indigenous groups must decide the rules of the game: how decisions will be made, how disputes will be managed11 and what the goals are. While NTRBs and government can provide important advice and skills to build governance structures that protect traditional owner rights and interests and promote accountability and transparency. If necessary, NTRBs and government can also provide skills and abilities to support the running of organisations.

Importance of leadership

During the consultations, leadership within the traditional owner group was said to be critical to the process of developing good governance. One NTRB representative noted that two types of leadership are important within the traditional owner group. First, a leader who can build unity and act as a peacemaker within the group. Second, a leader who can act as a visionary, understand the strength of the negotiating position and encourage traditional owners to explore their goals. These qualities may be found in a team of leaders, rather than one person.

Other respondents stressed the importance of encouraging young people to be involved in leadership, noting that elders are not always effective leaders. Young people may also have more skills and knowledge of non-traditional contexts to contribute to and support the traditional knowledge of elders.

Consistent with the comments from respondents, the Harvard Project for American Indian Economic Development12 has identified leadership as the first step in building governance within Indigenous groups. The Project found that in nearly every successful community, governance has evolved from one person or a group of people deciding that they will no longer accept the poverty, violence and sickness in their communities and understanding that if the community does not change things, no one else will. These leaders must also be able to create support for their community's transformation among the rest of the community.13

In the Australian context it is also important to recognise that in the majority of cases Indigenous groups do not currently have the natural or financial resources to manage their affairs independent to governments. Therefore it is imperative that the leaders and the group are empowered with the skills and opportunity to work in partnership with governments on an equal footing.

Managing internal relationships and group decision-making

Managing the relationships internal to the traditional owner group is necessary to support good governance and effective decision making. It must be recognised that traditional owners begin native title processes with a shared history and established ways of relating to one another. For some groups, strong relationships form the basis of their interaction and can provide an important foundation for decision making and dispute management. However at times, this shared history may include personal, family or culturally based conflicts which can cause tensions and disrupt decision making. Alternatively, some families or individuals may not be part of this shared history and new relationships and ways of relating need to be established. The complexity of existing or new relationships between traditional owners effects the way the group is able to make decisions. Traditional owners and NTRBs need to recognise these complexities and find ways of managing them.

Many respondents, including government, discussed how this process of managing the relationships which underpin decision making and governance can cause difficulties for traditional owner groups at the outset of the native title process. One respondent noted that 'native title often involves groups coming together for the first time to work together on complex issues'. As a result the 'politics of group cohesion is often a substantial part of the start of the native title process'.

Respondents also noted that in addition to managing the internal relationships of the group, traditional owners are required to reach decisions on complex issues. Rarely will traditional owners have the same view on all issues and building consensus and effective decision-making through good governance becomes crucial. One respondent suggested that consensus could be reached when the majority of people agreed, although most of the group needed to be in agreement, and not just a bare majority (51%).

Managing internal relationships and group decision-making is so crucial that it was suggested that NTRBs might have to wait, if possible, for a group to develop these skills before the NTRB can engage productively with the group.

A NTRB stated that one group, which holds native title, spent a number of years developing greater knowledge of native title rights and building good decision-making processes outside the corporate structure, prior to the establishment of their PBC. As a result, the traditional owners understand the complexities of native title issues and are able to make decisions with little involvement from the NTRB. Also the process of building good decision making ensures that the group has transparent processes and is able to effectively manage internal disputes.

Consistent with views expressed in the consultations, the AIATSIS Indigenous Facilitation and Mediation Project14 has identified a number of challenges that traditional owner groups face in managing internal relationships and group decision-making. They include:

These problems can develop into serious, possibly violent disputes that can paralyse a group's capacity to make decisions. However, building good decision-making and dispute management strategies can assist decision-making and may prevent the escalation of serious conflicts.

Options that were suggested in the consultations to minimise the effects of the problems listed above include: clear explanations and educational material so traditional owners can understand the native title process; providing opportunities for traditional owners to get to know one another outside of meetings - this may just include starting a meeting a day later while families arrive and spend time with one another; and developing the skills and knowledge of NTRB staff by supporting staff training and development and; promoting staff retention and career development.

In addition, Commonwealth and state governments and NTRBs must recognise that the process of traditional owner decision making is just as important as the native title outcome. At present, this recognition is not supported by the NTRB funding regime or the timeframes for future act negotiations set out in the NTA.

A good process of decision making should empower traditional owners, not confuse or undermine the way decisions are made within the group. Time and attention needs to be given to ensuring traditional owners understand their rights and interests within the native title system, such as procedural rights to comment on or object to future act processes under the future act regime, the right to negotiate in relation to the grant of mining permits, the exercise of native title rights, and the right to protect such rights from breach through common law remedies.

The process of decision making should also ensure that traditional owners are able to make decisions based on free, prior and informed consent. This requires:

Importantly, the process of decision-making should also be shaped by the group's needs, rights and 'ways of organising and exercising authority'.15 This process has been described in the Harvard Project as 'cultural matching'. The AIATSIS project argues that decision-making processes must not only respond to culture but also to other issues affecting identity, including class, economic and educational status, gender, and preferred lifestyle and locality.

Time constraints are a significant threat to effective decision-making and dispute resolution. The future act timeframes of the native title system create immense pressure for traditional owners and NTRBs to deliver outcomes. These timeframes usually benefit developers wanting quick access to land and waters, and can work against the effective participation of the traditional owners in negotiations, and undermine the cohesion of the traditional owner group as agreements are negotiated and benefits conferred before internal structures for decision-making and dispute resolution have been developed.

Representation

Informal structures of representation are frequently being used by traditional owners and NTRBs. Respondents noted that traditional owner groups are required to make decisions in relation to future acts before the establishment of a corporate structure. To manage this process, many NTRBs and traditional owner groups have established working groups or other representative groups to engage with issues on behalf of the broader traditional owner group before a native title determination is made.

These informal representative structures give traditional owners an opportunity to grapple with often new ways of making decisions such as group representation and transparent decision making. They also provide an opportunity for traditional owners and NTRBs to try different governance structures and processes before they establish formal structures that are more difficult to change.

During the consultations a range of views were expressed that reflect the diverse options and difficulties that might arise in establishing both informal and formal decision making structures and processes. NTRBs noted that working groups or consultation structures can take time to work effectively. In some areas, representational structures do not exist within traditional owner communities, and people need time to adjust to the process and develop the appropriate skills. Another NTRB considered that democratic representation could be problematic because one family might be able to dominate the process and influence outcomes. Alternatively, one respondent suggested that traditional owners and NTRBs could establish representative structures derived from traditional processes and structures, to provide a governance body based on familiar models.

Respondents also commented on the process of setting up representative groups. NTRBs observed that the initial establishment of representative structures is critical to ensuring a stable decision-making group. Large meetings that include as many traditional owners as possible are important to authorise representative groups to negotiate agreements on behalf of traditional owners. This can be costly and difficult to budget if traditional owners are coming from far-flung areas.

NTRBs have an important role in this process and it is essential that they are funded to commit time and resources to ensuring that all families are adequately represented in these informal decision-making groups. The South West Aboriginal Land and Sea Council (SWALSC) NTRB in Western Australia undertook this task on a large scale in relation to the single amalgamated native title claim for the region, the Single Noongar Claim. SWALSC assisted traditional owners to establish informal governance structures to manage the claim, by an extensive series of meetings with family groups identified by genealogical research. Each family group was asked to nominate a representative to sit on native title working parties within nine regions, resulting in 500 native title working party members altogether.

AIATSIS Facilitation and Mediation projects have identified appropriate representative structures as important building blocks for good decision-making. Representative structures must include all the different families and factions within a group and have authority to make decisions on behalf of the traditional owner group. This was reiterated during the consultations. The responses from NTRBs implied that it was crucial that the representative structure had widespread support, was understood by traditional owners and was considered a legitimate decision-making body.

However as noted above, representational structures are not necessarily used in a traditional context and the group may need time to adjust to this type of decision-making body. Striking the balance between traditional decision making structures and effective representative structures can be difficult but at the same time, is crucially important. This balance is important because governance structures must be supported by the group and accepted as a legitimate decision making body.

The legitimacy of decision-making structures and governance institutions 'in the eyes of the community'16 has been identified by the Harvard Project as a foundation of good governance. Without legitimacy, decision-making structures and governance institutions will not be able to maintain the support of the community or gain participation in development goals or Government policy.

The Harvard Project identifies two important sources of legitimacy that stem from the balance between traditional structures and effective governance. The first source of legitimacy is the match between traditional decision making and the representational structure.

Traditional owner groups decide that an organisation or working group is legitimate if its values and way of operating fit with each group's values and 'ideas about how things should be done'17:

Institutional structures and processes that conform to the community's generally accepted ideas about how persons should interact and relate to each other, about the appropriate exercise of power, about who should be entitled to speak or act for whom, about proper decision-making processes, and so forth, are likely to command significantly greater support within the community than those that depart from such standards or ideas, or that challenge them directly.18

This process of matching governance structures to traditional decision making is by no means simple or based on two separate disconnected and unchanging domains - traditional and contemporary (or alternatively 'non-Indigenous'). It has been argued that the 'traditional domain' is not an autonomous system, separate from contemporary Australia. Instead, Indigenous Australia is 'a contested, intercultural field of transforming and transformed practices and values'.19

As discussed in the Introduction to this Report, the findings of the Yorta Yorta decision deny the transformative relationship between Indigenous and non-Indigenous Australia, or at least deny Indigenous people an entitlement to land if this relationship of transformation has been too lengthy. Despite this, the changing and transforming nature of the relationship between Indigenous Australia and the broader Australian context provides greater opportunity for traditional owners to assess, design and modify governing structures to respond to their changing needs and values but most importantly to provide effective governance.

Effective governance is in fact the second element identified by the Harvard Project as essential to successful economic development in Indigenous communities in the United States. If a decision-making body fails to make effective decisions and deliver results, it will lose its legitimacy. In the context of native title, this requires that governance structures must be consistent with the values and needs of traditional owners but also include contemporary mechanisms like constitutions, separation of powers and other accountability measures to ensure the organisation is effective. Contemporary mechanisms are particularly important in the native title system where traditional owners are required to make complex and difficult decisions that can also include substantial resource and monetary outcomes.

Corporate structure and Indigenous governance

During the consultations, many respondents provided a challenging assessment of the relationship between corporate structures and Indigenous governance in the native title system. Many were concerned that managing the corporate structures prescribed under the NTA drew attention and resources away from building strong cohesive governance within the traditional owner group itself. In discussing this issue, respondents compared the NTA model to the Northern Territory Aboriginal Land Rights Act 1976 (ALRA) Lands Trust model and the experiences of Indigenous people in Canada.

The PBC model

Concerns were raised during the consultations about the use and relevance of the corporate structures imposed on Indigenous groups by the NTA. The NTA requires native title to be held or managed by a body corporate once a determination of native title is made by the Federal Court. The type and structure of the body corporate is prescribed in Regulations made under the NTA,20 and is known as a 'prescribed body corporate' (PBC) or 'registered native title body corporate' (RNTBC) once registered on the National Native Title Register (PBC is used throughout in this section to refer to both for shorthand). PBCs have a range of functions and obligations under the NTA, the Regulations, the Aboriginal Councils and Associations Act 1976 (Cwlth) (ACAA) and the common law. All of the members of a PBC must be native title holders, although not all native title holders in a group must be a member of a PBC - the Regulations envisage that the PBC will be made up of some of the native title holders who will act on behalf of the whole group.

Native title holders are able to choose whether their PBC will hold the native title rights on trust; or whether their PBC will manage the native title rights as their agent, acting on instructions from them as principals. In either case, the PBC must consult and get the consent of the native title holders whose rights will be affected when it makes a decision to surrender native title rights or do any other act that would affect the native title rights or interests (this is known as a 'native title decision'). The PBC also has to consult and consider the views of the NTRB for the region when it makes a native title decision.

Memmott and McDougall suggest that PBCs will also need to forge strong institutional links with a variety of external entities such as developers (negotiating land and sea uses), Indigenous service providers (to re-structure service delivery to the native title holders through PBCs where desired), community councils (eg negotiating ILUAs for future acts within council areas) and relevant state and federal government authorities (eg negotiating a joint role in regulating rules governing land or managing national parks).21

Need for a corporate structure?

In our consultations, some respondents queried the very requirement that native title holders establish a corporate structure. They considered that requiring a corporate structure obscures the fact that Indigenous people are an identifiable community or polity of themselves. This has also been commented on in court cases. The Federal Court noted, in relation to the structure of an unincorporated association constituting a native title claim group, that:

limits or conditions imposed by the rules of the Association to become and remain a member are, in my opinion, alien to the notion of a group with a sole defining characteristic of sharing, having or enjoying native title.22

It was pointed out by some respondents that in Canada, traditional owner groups are perceived and engaged with as nations - there is no standard requirement that groups use a corporate structure to order their affairs or to create a point of contact with third parties. The requirement in Australia for corporations to be created to administer government funding to and engage with traditional owner groups ignores the existing polity or governance of traditional owner groups and may not support 'a cohesive identity' for Indigenous peoples.

The NTA does not require a corporate structure be set up by traditional owners before a native title determination is made. Certain types of Indigenous Land Use Agreements (ILUAs) may be negotiated with the native title group or individuals without there being a corporate structure in place. Instead, for these ILUAs, the relevant NTRB must certify that all reasonable efforts have been made to ensure that all individuals who may hold native title in relation to the land or waters in the area of the ILUA have been identified and agree to the ILUA.

However, other respondents felt a corporate structure was a useful decision-making structure. Another respondent acknowledged that in one case, the PBC structure had prevented any one family group from taking over the corporation. Other benefits of using a corporate structure are that, in law, the corporation is viewed as a single legal person, separate from its members. A corporation may acquire, hold and dispose of property, including communal property; sue and be sued in its own right; can continue to exist even if its membership changes over time; and may protect its members from personal liability for acts undertaken by the corporation. Other respondents supported the view that corporate structures provide greater protection to the interests of the group, but criticised the current PBC model.

Difficulties with the PBC model

PBCs were considered by a number of respondents to be difficult and complex structures through which to represent traditional owners. It was noted that to run PBCs in compliance with their legislative framework, traditional owners needed the skills of lawyers, accountants, anthropologists and mediators23. One respondent had had experience in establishing a large, busy PBC in an urban environment. This respondent noted that developing a PBC structure consistent with traditional laws and customs and the requirements under the NTA and ACAA was like 'fitting into a straightjacket'.

Mantziaris and Martin outline the difficulties with PBCs as governance structures for native title in their book Native Title Corporations: a legal and anthropological analysis.24 Some of the issues with the existing PBC model identified by the authors are:

Finally, the rules of the PBC model apply only once there is a native title determination made by the courts. The PBC structure is inappropriate for traditional owners who will not get recognised under the NTA.

I note that the Office of the Registrar of Aboriginal Corporations (ORAC), which is responsible for administering the ACAA, is currently drafting a Bill to reform that Act to overcome known legal and technical problems with current legislation, including incompatibilities with the NTA and PBC Regulations.25

A key factor in making PBCs work that was frequently identified by respondents is the ability of traditional owners to manage and run their own PBC. One NTRB that has facilitated the establishment of an operational PBC discussed some aspects of this process in detail. It found that capacity-building was crucial to the establishment of the PBC, focusing on developing the group's decision-making skills and creating a transparent governance process that addressed the needs of traditional people living in an urban environment. This process has taken four years and throughout this period, before the establishment of the PBC, native title holders were under immense pressure to respond to numerous issues arising within the group and from the demands of external bodies. Not all these issues could be addressed and the native title holders have been forced to prioritise the issues with which they could engage.

Another respondent suggested that the role of the ORAC be expanded to provide greater assistance to PBCs. ORAC has recently begun offering 'pre-incorporation information sessions' to groups who want to incorporate under the ACAA to discuss matters such as: why the group wishes to incorporate, what will change post-incorporation, what a corporate constitution and rules of association are, what it means to incorporate under the ACAA, what the process is, and likely costs.

Capacity building is discussed further in section 3, Capacity development below.

Other models

The Land Trust model established under the ALRA in the Northern Territory was proposed by some respondents as a better model of Indigenous governance. The Land Trust model relies on the resources of the large centralised land councils to manage land granted to the traditional owners under the ALRA on trust, enabling traditional owners to focus on using their land for 'traditional' purposes as well as developing their capacity for social and economic development.

Memmott and McDougall offer suggestions for 'passive' or 'active' PBC designs within the existing PBC model in the publication Holding Title and Managing Land in Cape York.26 The 'passive' PBC structure is designed to be a minimalist structure with little administrative demands, and suits the agency PBC type which manages but does not hold native title rights and interests. The passive PBC defers decision-making to the native title holders, who continue to hold their own native title rights and interests. The PBC would have a limited role in decision-making, instead focusing on communicating between the native title group and third parties. Therefore it could have a small membership and not be resource-intensive to run. However, it would probably be heavily reliant on the NTRB. This is similar to the land trust model established under the ALRA.

The 'active' PBC model would have a greater role in decision-making and suits the trustee PBC type which holds the native title rights and interests on trust for the native title holders, having discretion to deal with the rights and interests as it chooses as long as its decisions are in the best interests of the native title holders and it consults in relation to 'native title decisions'.

Other respondents suggested that NTRBs should be resourced to allow greater involvement in the establishment and ongoing administration of PBCs. This could create a hybrid approach, bringing together features of the ALRA model and the PBC model.

Respondents considered that, ultimately, traditional owners should decide which governance structure to adopt in light of their particular circumstances and goals. Different traditional owner groups in different contexts will require specific governance structures that fit their needs. Respondents suggested that rather than a one-size-fits-all view, traditional owners, in partnership with the relevant NTRB, should be able to choose what form of governance structure they consider suits their circumstances, needs and goals for their native title rights and interests, and social and economic development.

In addition to the alternatives to the PBC model suggested by respondents above, other options for Indigenous governance structures include:

It may assist traditional owner groups to develop familiarity with the operation of a corporate structure to incorporate before their native title determination is made. Informal structures of representation set up by the traditional owner group to make decisions in relation to future acts and other matters before a native title determination was discussed above. If the traditional owner group is happy with their informal representative structure, this structure could be incorporated. This would enable the traditional owners to experience, assess and refine the structure of the corporate entity they use to manage native title, which may ultimately become the PBC determined if native title is recognised.

Memmott and McDougall recommend that NTRBs form or support a central service provider in regions determined by NTRB planning, to provide administrative services to PBCs and other Indigenous land-holding entities in the region. This would enable traditional owners to focus on strategic planning and the outcomes they want to achieve from their native title rights, as well as developing their own management and governance capacity, while the administrative obligations of their corporate structure are met by a central service provider.

Memmot and McDougall call for PBCs and land trusts established under state land rights legislation to be integrated into single corporate entities to reduce confusion and overlap in functions. They suggest this may be done either by allowing land trusts to be PBCs, appointing PBCs as grantees or trustees of land trusts, or coordinating the activities of PBCs and land trusts by agreement.

Mantziaris and Martin suggest that regional-based PBCs could be developed that represent multiple native title groups in an area rather than establishing one PBC per native title determination area or group. Regional PBCs would offer advantages over a multiplicity of small PBCs through economies of scale and organizational capacity and efficiency, the strategic and coordinated management of native title across a region and stronger links to other Indigenous organisations.

Examples include corporate entities under corporations law, state land rights statutes, community councils and NTRBs. This would allow traditional owners to build upon existing governance structures in the traditional owner group, establish links with non-traditional owner members of the community and capitalise on the skills base of people already experienced in management and governance.

Native title groups may wish to include other traditional owners, non-traditional owner Indigenous people or non-Indigenous people in their corporate structure to make it representative of the broader community in which they live, or to increase the corporation's pool of skills. As suggested by respondents above, they may wish to forge partnerships with the local NTRB or even include the NTRB as a member of the corporation's management.

Despite the advantages of the corporate structure outlined above, some traditional owner groups may not wish to incorporate, but prefer to use informal or traditional decision-making structures. Local Indigenous organisations such as community councils or NTRBs could be used by the traditional owners and third parties as a representative of the traditional owner community. This would be similar to the approach used for some ILUAs discussed above.

Further options are discussed in the Australian Research Council's Collaborative Research Project Governance structures for Indigenous Australians on and off native title lands, which seeks to develop recommendations for a more adequate fit between traditional forms of land ownership and control under traditional laws, and non-Indigenous forms of law and government.27

Corporate structures for economic development

One respondent cautioned against using the corporate structure of a PBC for anything other than holding native title, such as commercial enterprise, because although the NTA protects native title rights and interests held by the PBC from liability incurred by the body corporate, the non-native title assets of the PBC, of individual members and of the broader native title group could be at risk if the PBC was wound up for any reason. It was suggested that if traditional owners are interested in pursuing other goals, like economic and social development, a separate but related entity should be established. This view was shared by other NTRBs that considered other structures could be set up to address land and sea management and economic and social development. However, it was thought that traditional decision-makers who control the PBC should also make the decisions in relation to subsidiary organisations, but not be responsible for implementation. Additionally, some respondents anticipated that PBCs may also take on greater responsibility in cultural heritage issues and also require the capacity to manage this process.

Mantziaris and Martin also recommend against using the PBC corporate structure for purposes other than managing native title rights because of the complex nature of the legislated relationship between the PBC and the native title group, and the lack of suitability of the ACAA corporations as a vehicle for commercial ventures. They suggest a number of ways in which a separate structure for economic development may be established but still linked to the PBC so that the traditional owners retain control of subsidiary entities. These include setting up separate but formally linked organisations, such as making the PBC a shareholder in a separate corporation set up under the Corporations Law; establishing appropriately differentiated management structures within the one organisation; or establishing separate trusts (one for native title trust property, the other for non-native title property) administered by the PBC.

Summary

Respondents raised many interesting and challenging issues, drawn from their experiences working with traditional owners to establish good governance structures and processes. Key issues raised during consultations addressed:

3 Capacity development

While governance provides a framework for group cohesion and decision making, capacity development provides a process and guidelines for achieving sustainable social and economic development goals.

The UN defines capacity development in the following way:

Capacity refers to the ability of individuals, communities, institutions, organisations, social and political systems to use the natural, financial, political, social and human resources that are available to them for the definition and pursuit of sustainable development goals.

Capacity building or capacity development is the process by which individuals, institutions and countries strengthen these abilities.28

Consistent with the principles of the Harvard Project, capacity development stresses the empowerment of the group to achieve sustainable development. Capacity development, as a process by which sustainable development might be achieved, has two important features. First, capacity development puts those who seek to achieve development goals at the centre of the process. In native title negotiations, this means traditional owners. Second, the pace and agenda of capacity development is determined by the ability of the group to engage with the process and achieve goals. Capacity development requires not that sustainable development be 'delivered', but that those who seek to achieve development goals within their communities are actively involved in setting the agenda and determining the outcomes.

Broadly, capacity development has five main principles. The process must:

The last of these principles highlights the importance of cross-sector cooperation in capacity development. Without support at various levels within a system, capacity development strategies can fail. Within the native title context, this requires support for capacity development among traditional owners from NTRBs, governments, companies and institutions such as the NNTT and Federal Court.

In Australia, capacity building29 is being addressed and promoted within the native title system through the ATSIC/ATSIS (now Office of Indigenous Policy Coordination) NTRB Capacity Building program. The 2001-2002 Federal Budget provided $11.4 million for capacity building projects for NTRBs. The program targets corporate and cultural governance, management and staff development, native title technical training, collaborative relationships, research and applied capacity building. In the Native Title Report 2003 it was noted that:

While capacity building directed to organisations such as NTRBs is an important element of achieving sustainable development, it must be consistent with and enhance the development objectives of traditional owner groups by providing opportunities, skills and resources necessary to facilitate and promote their empowerment.30

The NTRB Capacity Building Program will end in the financial year 2004-05.31

The Federal Government is also considering capacity building for Indigenous communities through its service delivery programs. In June 2004, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs released the report of its inquiry into capacity building and service delivery in Indigenous communities. The report, entitled Many Ways Forward, recognised that capacity building 'is a process, not a final outcome and, as such, is about developing sustainable skills and abilities'.32 The Committee went further and sought to identify what the outcome of the capacity building process might be. The Committee quoted from the Northern Land Council's submission, which stated:

The goal of capacity development is not simply to encourage "well managed communities" and "better service delivery", but to enhance Aboriginal people's capacity for self determination and sustainable development.33

Quoting from the submission of the previous Aboriginal and Torres Strait Islander Social Justice Commissioner, with which I agree, the Committee concluded that capacity building could be:

...[A] potential vehicle for the renewal of societal structures and the political recognition and representation of Indigenous peoples' status.34

The Committee's views are consistent with the strategy set out in this Report, which recognises the important role of capacity development in promoting traditional owners' social and economic development.

The bulk of the Committee's report is focused on the role of government agencies, Indigenous organisations, and individuals, families and communities in supporting capacity development. The report recognises that without capacity building for these service delivery stakeholders, sustainable outcomes are unlikely. Government agencies need to be coordinated, cooperative and better integrated. Funding arrangements must be improved and partnerships between government and Indigenous communities need to be established. The report also identifies the capacity building needs of Indigenous organisations. These organisations require improved governance structures, greater internal and external accountability, strong leadership and corporate and Indigenous partnerships. At the grassroots level, the Committee's report acknowledges the need to build the capacity of individuals, families and Indigenous communities. The report identified key areas for capacity development, including primary healthcare and early intervention, numeracy and literacy, crime, safety and justice, family violence, housing, and employment and training.

Capacity building at all three levels is based on the understanding that change needs to occur in a systemic way. This systemic approach is reflected in the principles in the Discussion Paper (at Annexure 1), which require that agreements build relationships between key stakeholders and integrate activities at various levels to achieve the development goals of traditional owners. This means that state and Commonwealth governments, industry, and traditional owners must share the goal of sustainable development. Sustainable development aims to realise the objectives of all stakeholders, including the traditional owners' goals for social and economic development, without neglecting environmental, economic and social outcomes. It is also important that native title administrative agencies such as the NNTT and Federal Court, support this goal in the conduct of their functions.

During the consultations, capacity development was frequently discussed. Issues ranged from the importance of capacity development for traditional owners, to the role of NTRBs in this process and barriers to developing the traditional owners' capacity in a native title context.

NTRBs and others noted that the native title process should be an opportunity for traditional owners to develop their capacity and skills, individually and as part of a group. Group skills may include improved goal setting and leadership; governance and decision making. Some respondents referred to this process as 'nation building'. While the skills of individuals, may include job specific training that may be included in the terms of an agreement. Capacity development for individuals through education and training is discussed further below.

NTRB role in capacity development

There is growing recognition amongst NTRBs that traditional owners need to develop their capacity so they can understand and manage their native title rights and also to achieve their economic and social goals. One respondent, who has been involved in providing workshops to NTRBs under the Capacity Building Program, said the overwhelming feedback from NTRBs was: 'we're all right, but what about capacity building for traditional owners?'

This respondent pointed out that traditional owners had responsibilities as applicants in native title proceedings and as representatives of traditional owners and the whole community. To properly carry out these roles and responsibilities, traditional owners needed to develop their capacity to understand the native title system; understand their roles as family representatives and; have the skills, knowledge and confidence to represent their families in dealing with the NTRB, government and industry. In short, traditional owners need capacity building.

A number of NTRBs identified the role they could play in assisting traditional owner groups develop their capacity to build and achieve their goals for social and economic development. However NTRBs also acknowledged that staff employed to carry out legal processes under the NTA may not be the right staff to assist traditional owners develop their capacity and stressed the importance of appropriately trained staff to undertake this process. Consequently, NTRBs need capacity building, and staff with the right skills and time and resources to assist traditional owners develop their own capacity.

Similarly, respondents argued that there is a great deal of inconsistency between NTRBs, in terms of what they can do and offer. They suggested that smaller NTRBs must be provided with the support they need to improve their service delivery, making it consistent with the service of some of the larger land councils. Greater support for smaller NTRBs could be provided through the NTRB Capacity Building Program discussed above.

NTRBs discussed how specific areas of their work could be used to support traditional owners' capacity development and goal setting. NTRBs can use legal, anthropological and environmental reports to advise traditional owners of their opportunities. They commented that aspects of the native title process - meetings and taking instructions, contributing to connection reports, determining strategies for the finalisation of a claim, establishing a PBC and so on - should aim to develop the group's capacity and assist the group build goals for future economic and social development.

During the consultations, a number of NTRBs discussed their own strategies to help traditional owners develop their capacity for economic and social development.

One NTRB stated that first and foremost, the process of capacity development should aim to empower the traditional owner group. Other NTRBs have been aiming to develop traditional owner capacity through the establishment of stable decision making processes and structures; and extensive consultation processes to improve traditional owners understanding of their rights and interests. They considered these processes particularly important in building the foundation for identifying the social and economic goals of the group. They also identified a number of ways to help traditional owners build their capacity. These include:

The Northern Land Council's (NLC) Caring for Country Strategy for land and sea management reflects the principles of capacity development set out above. The Strategy includes five guiding principles:35

  1. Be proactive and responsive to the expressed land and sea management needs and aspirations of Aboriginal people as required by the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act 1993;
  2. The land needs its people. Pursue the philosophy of extending Aboriginal people's capacity to look after their land and sea country (which is empowering) versus the philosophy of setting up an agency to look after the land and sea on behalf of the people (which is disempowering);
  3. Respect and apply both traditional Aboriginal knowledge and contemporary science-based knowledge to promote and ensure best practice land and sea management;
  4. Promote the intrinsic and economic value of ecologically and culturally intact landscapes for Aboriginal people's customary and commercial uses of their country; and
  5. Promote and facilitate partnerships and collaborations to achieve positive land and sea management outcomes.

Comments from NTRBs demonstrate that many of these organisations are considering ways of helping traditional owners develop their capacity to direct their own economic and social development. NTRBs have already begun applying strategies to build traditional owner capacity by helping traditional owners understand and manage their rights and interests. As discussed, the NLC has developed a comprehensive and sophisticated strategy applied to land and sea management. Such a comprehensive approach could also be undertaken within the native title system by examining the processes of the native title system and identifying opportunities to assist traditional owners develop their capacity. The principles and discussion contained in the Discussion Paper and this Report begin a process that is aimed at developing an approach to native title that develops the capacity of traditional owners to achieve their economic and social development goals.

Existing group capacity

Respondents also elaborated on the skills and knowledge of traditional owners, discussing both existing capacities and also areas for ongoing capacity development - commenting that there is substantial but varied capacity within traditional owner groups. Some groups have highly influential and articulate leaders, experienced in the political context. Other groups have strong traditional leaders whose third or fourth language is English. Traditional owner groups and NTRBs must consider how the different capacities and skills of traditional owners can be best used and developed.

One NTRB noted that many of the traditional owners with the skills to deal with complex legal, financial or corporate issues work full-time and find it difficult to participate regularly in frequent native title meetings, especially if they have to travel long distances to get to them.

Using the existing capacity of a group is an important feature of capacity development. It requires that existing capacity within the group is recognised and valued by traditional owners, NTRBs, government and industry. Capacity may exist in a range of forms, from highly articulate and experienced individuals to more collective capacity belonging to the group. Group capacity may include an organisation's committed membership, a community's traditional decision-making structure, or its ability to use and manage the natural environment in a sustainable way. This internal or endogenous capacity provides the foundation for capacity development, and can then be further developed, organised and used by the group to identify and achieve its goals.

Developing 'non-traditional' skills and knowledge

Respondents considered that capacity development needed to focus on building 'non-traditional' skills and knowledge to ensure that traditional owners can engage with complex and difficult native title and governance issues.

The NLC's Caring for Country Unit builds on the existing skills of traditional owners and supports the development of 'non-traditional' skills and knowledge. Underlying this is an acknowledgement that both traditional and Western science-based knowledge systems are important for land management. For example, traditional practices have important fire management techniques that can be supported by satellite fire mapping, while science-based knowledge systems may deal better with invasive weeds and feral animals.36

A similar approach can be applied in governance and economic development for traditional owners. Traditional governance structures may provide an important foundation for decision making but this may need to be supported by non-Indigenous ideas, such as separation between decision making and administrative processes and transparent and accountable processes. Similarly, economic development goals might be determined by traditional decision-making structures, supported by economic knowledge and advice.

The importance of traditional owner capacity cannot be overemphasised and is included in the principles in the Discussion Paper which require that agreements should 'utilise to the fullest extent possible the existing assets and capacities of the group'. Linked to this, is the need to assist traditional owners develop new skills. Their own new and existing skills strengthen traditional owners' opportunity to achieve their economic and social development goals.

Barriers to capacity development

During the consultations, NTRBs noted that capacity development is an important part of the process of native title but identified substantial barriers to this process.

Lack of time within the native title process to both satisfy the NTA and help traditional owners develop capacity was identified as a fundamental obstacle. Linked to this is the pressure applied by a high number of external demands made upon the traditional owner group. For example, traditional owners must respond to third party issues such as site clearances or agreeing to a particular future act which often draws attention away from developing the capacity of the group.

As an alternative to focusing only on third party interests, capacity development aims to identify the objectives that traditional owners want addressed through negotiations. This is a proactive approach to negotiations, setting out traditional owners' goals for agreement making as well. However capacity development and identifying social and economic development goals is likely to extend timeframes beyond the future act timeframes of the NTA. This could be managed if third parties engage with NTRBs as early as possible and before the NTA process begins (triggered by notification of the act).

The UN Development Programme, Management Development and Governance Division states that allowing sufficient time for capacity to develop is critical.37 However capacity may not increase just because a group has a lot of time to build it. Capacity is built through active engagement with issues, goals and success or failure - both are learning opportunities. As a group builds its skills and knowledge by engaging with issues, its capacity is developed. Therefore the amount of time a group needs to build capacity is linked to its ongoing achievements and the group's own willingness and confidence to engage.

One respondent noted that in a large-scale native title agreement, a group might not be ready to negotiate terms and reach final agreement quickly. Instead, time should be factored in for the group to gradually build up its decision-making skills and identify its goals. This gradual process could be facilitated by an incremental approach to agreement making.

Such an approach has been proposed by the British Columbia Treaty Commission in Canada, after the Commission conducted research into the success of the treaty-making process. The Commission found that the process was expensive, time-consuming and delivered few results, particularly to Indigenous communities. A central recommendation was that incremental agreement making be adopted. This requires building treaties over time so that relationships could develop, skills could be developed on both sides of the negotiation and outcomes could be achieved with greater regularity.38 These outcomes should not only meet the objectives of proponents and government but provide meaningful outcomes for traditional owners.

Respondents also noted that current funding for NTRBs does not adequately support NTRB functions under the NTA, let alone providing assistance for traditional owners to develop their capacity. One respondent noted that government capacity-building programs are focused on NTRB service delivery and are not considered by government to be a major part of the native title process. As a result, NTRB funding is not available to assist traditional owner groups build their capacity. Also, funding restrictions mean that NTRBs have to justify all their spending in terms of measurable outcomes. While NTRBs have to be accountable for their funding, the process of capacity development is not easily measured. Nor is it an outcome but rather, a process. One NTRB is considering establishing a separate community development unit with separate funding, to progress the social and economic development phase of the agreement-making process.

A number of NTRBs noted that their organisation does not have the staff, skills and resources to assist with capacity development and governance. One NTRB has established a community development unit but this was possible due to funding from other sources, not native title funding. Other NTRBs employ land management officers who use participatory planning to develop land management projects and commercial enterprises promising environmentally sustainable development, but they also operate outside the native title process, relying on funding partnerships with external organisations.

The UN Development Programme, Management Development and Governance Division recommends that individuals facilitating capacity development:

must be competent and experienced managers, with sufficient qualifications and/or skills in project and programme management, strategic and change management, and capacity initiatives39.

However, the skills and knowledge necessary for capacity development do not have to be drawn only from NTRB staff. Partnerships with government, industry or academia can supplement the knowledge and skills of NTRBs. Respondents discussed, in various ways, the importance of building relationships between Indigenous groups, NTRBs and others who may be able to assist in capacity development. The Registrar of Aboriginal Corporations has hosted a similar process that brought together practitioners and traditional owners to discuss issues of Indigenous corporation membership and finance.40 These discussions could also be broadened to address other governance issues including separation of administrative and decision making roles, and transparent decision making.

Similarly, the NLC's Caring for Country Unit has an extensive and diverse partnership network that supports capacity development for Indigenous communities. Partners include the Indigenous Land Corporation, the Commonwealth Department of Employment, Workplace Relations and Small Business, the Batchelor Institute of Indigenous Tertiary Education, Greening Australia, the Australian Quarantine and Inspection Service, and the Northern Territory Department of Infrastructure, Planning and Environment.41

Finally, some NTRBs identified governance issues within their own organisations as obstacles to capacity development for traditional owners, stating that without high level internal support, NTRBs would only be able to provide limited assistance to traditional owners as they develop their capacity.

Comments made during the consultations highlighted substantial barriers to capacity development within the native title process. However some of these barriers can be overcome if other participants in the native title process commit to agreement making that aims to empower traditional owners and address some of their social and economic goals. Governments and third parties can provide important assistance, as discussed in the next section.

Capacity development and non-Indigenous parties

During the consultations, respondents noted that government departments and companies also need capacity building in a number of key areas, first to understand their role in the process and second, to be able to assist traditional owners develop their capacity. For governments this may mean the skills and ability to negotiate wide ranging agreements and a more integrated 'whole of government' approach to native title and other land related issues. For companies this may require a commitment to negotiate on broader issues and the skills and knowledge to address social and economic issues, within their area of operations.

All parties including traditional owners also need cross-cultural training. During consultations the Aboriginal Legal Rights Movement (ALRM) has noted the benefits of cross-cultural training for all native title parties. They noted that industry groups have gained a greater understanding of the process of traditional owner decision-making and traditional owners have had the opportunity to learn about the issues affecting government decisions.

Respondents noted that achieving economic and social development through native title requires the support of third parties and governments. In fact one respondent considered the role of government crucial in order to manage aspects of the NTA (in the absence of legislative change) that undermine a strategy for economic and social development for traditional owners. These aspects include the time frames of the future act process, pressure from the Federal Court to progress cases, the narrow legal construction of rights and the native title funding regime. Without the assistance of companies and government departments willing to extend timeframes established under the NTA by negotiating before a future act is notified, provide financial assistance to NTRBs and adopt a broader definition of rights and interests by agreement, economic development for traditional owners is very difficult.

Working in partnership with NTRBs and traditional owners, government departments and third parties can help traditional owners build their decision-making structures and the skills and knowledge needed to negotiate agreements and achieve their goals. For example some corporations also provide training and employment for traditional owners that build the capacity of individuals to take advantage of job opportunities offered under native title agreements.

Industry respondents acknowledged their role in helping traditional owners develop their capacity but were concerned that the extent and area of their involvement and responsibilities were not clear from the principles. This issue is discussed in detail in section 5, Maximising opportunities for economic development below. It was also noted that not all industry stakeholders were large multinational corporations who could afford to support training and employment programs. It appeared that particularly where corporations are paying a substantial amount to the government in mining royalties, it is likely that they will be unwilling to assist. In these situations, corporations may suggest that traditional owners approach government for economic and social development opportunities.

The feedback from consultations also indicated that industry stakeholders are likely to provide training and employment to traditional owners only in areas where they have development interests. Traditional owners in non-resource-rich areas will have to attract assistance from elsewhere.

Determining group goals

Identifying goals

Identifying and responding to the goals of traditional owners in native title negotiations is the first principle set out in the Discussion Paper. However, few respondents commented on this issue during the consultations. The respondents who did discuss the issue focused on the difficulties of identifying goals within the limited timeframes of the future act process and without traditional owners having established a strong and stable decision-making structure. Even when decision-making structures are established, the focus of the NTRB is usually, of necessity, on negotiating agreements and responding to the goals and timeframes of third parties.

Consultations did not reveal many examples of traditional owner groups being able to engage in negotiations with clearly agreed and articulated goals for their own economic and social development.

However some agreements have been negotiated with a clear process to identify traditional owner goals. These include large-scale mining agreements, described as 'comprehensive agreements' that focus on 'long term objectives and benefits to all parties'.42 Two of these agreements, the Gulf Communities Agreement43 and the Western Cape Communities Co-existence Agreement44, have been negotiated in north Queensland. The Gulf Communities Agreement provides for social impact assessments, health facilities, compensation, funding based on strategic plans and detailed commitments to employment and training. The Western Cape agreement links regional development, employment opportunities and training, community assistance and financial advice with the development of the mine.45 Rio Tinto, a signatory to both of these agreements, also applies a 'comprehensive agreement' approach to small-scale activities, including exploration and land access. The application of a 'comprehensive' approach to small-scale agreements provides an opportunity to address broader issues affecting traditional owner groups whose country is not the site of a major mine where these types of agreements are most commonly negotiated.

The Western Cape Communities Co-existence Agreement provides an example of how traditional owner goals can be identified and include in the negotiation of a comprehensive agreements. The process for negotiating the Western Cape Agreement was broken up into seven stages:

The information gathering and community consultation stage of these negotiations shows how the communities from Western Cape York identified their goals and objectives for negotiations. Two major information-gathering projects were undertaken - anthropological research and an Economic and Social Impact Assessment. The latter was designed to identify the impact of the proposed mining project on local Indigenous communities and to express the aspirations and concerns of traditional owners. The Impact Assessment project was managed by a traditional-owner-controlled Steering Committee, and desk-based research and consultation with traditional owner groups formed the basis for the assessment. Traditional owners are then able to determine their negotiating position based on the results of the Impact Assessment.[0]

Another strategy for assisting traditional owners identify their goals that is often used by Indigenous organisations, particularly in land management projects, is participatory planning. Participatory planning requires that traditional owners determine the goals for social and economic development, rather than assisting in the development of objectives set outside the community.47 Participatory planning:

...starts with self-identification of the need for capacity, self-setting of objectives and priorities, self-assessment of capacity and self-management of the development process itself, as well as self-monitoring and evaluation of the results of the process. This means that other partners participate in a process owned and driven by the individual/organisation/institution who is the subject of the capacity development.48

Above all, participatory planning is people-centred and seeks to promote development based on the active participation of individuals within their communities, local organisations, regional or national governments. The model includes methods to facilitate group analysis, learning, consensus-based decision-making, planning processes, special studies, workshops, consensus-building and conflict resolution.

Information gathering, traditional owner goal identification and participatory planning need not take substantial amounts of time. Social scientists working in the overseas aid development sector have designed methodologies that allow them to identify development needs, goals and impacts with the participation of the community, relatively quickly. In particular, the 'rapid appraisals' technique involves short periods of fieldwork (usually less than one month) and uses a shortened formal survey process combined with key informant interviewing. The fieldwork component is often carried out by a team comprising researchers from different disciplines (such as an agro-economist, anthropologist, health professional) who each gather information within his/her area of specialisation. Informal, open-ended surveys with members of the community, individually or in groups, are also held. In the course of the interviews, culturally meaningful and important categories are meant to emerge so that an appropriate idiom or dialogue is developed.49 This approach generally requires a social scientist on the team who has a first hand understanding of the qualitative research methodology involved, as well as staff with a first hand understanding of the communities to understand the group's recent history and cultural context, and be able to correctly evaluate what norms and values underlie a particular person's expressed opinion or action.50

The participation of the traditional owner community in identifying their needs and goals for development is crucial.

Community participation can describe local developmental problems and can reflect on the identification of risks, resources and opportunities for local development. The community can work towards making [development] programmes sustainable and environmentally compatible...The greater the divergence between the community's perceptions of wellbeing and that of outside agencies the less relevant becomes the efforts of the latter.51

A variety of participatory social research tools may be used in rapid appraisals to engage the community in the information gathering and development planning, including visual methods like diagramming and interviews in smaller groups in culturally appropriate spaces, to ensure that all members of the community feel able to participate.52

These options for identifying the traditional owners' goals for economic and social development reflect the first principle set out in the Discussion Paper. This principle requires that negotiations 'respond to the group's goals for economic and social development'. Participatory planning and rapid appraisals or other methods of social and economic impact assessments discussed above provide mechanisms to help groups identify their goals.

When to set goals

An important question that emerged from the consultations was the point at which traditional owner groups should aim to identify their social and economic goals. One respondent stated that groups needed to develop strategies and plans prior to the determination of a native title claim or the negotiation of an agreement. Other respondents supported this approach, commenting that capacity development should assist groups to develop their social and economic development goals. These goals should then be part of the negotiation process.

However, other respondents raised concerns that traditional owners have no time to develop social and economic goals before or during the negotiation process. For many groups, capacity development is first needed to build governance and decision-making processes so that groups are able to respond effectively to native title decisions. An effective governance structure is also necessary to identify social and economic goals. However, these processes can take a substantial amount of time.

Added to this, respondents observed that third parties prefer that negotiations are resolved quickly. One NTRB noted that they can often get better results for traditional owners if they act quickly - leaving little time for groups to identify their goals.

A number of respondents suggested that traditional owners could decide to delay the distribution of economic benefits received through native title agreements, using fixed term investments or some other mechanism preventing access for a number of years. During this time, traditional owners could develop good governance and identify the social and economic development goals that their investments might be used to achieve.

Summary

Respondents recognised the importance of traditional owner capacity development not only in the context of economic and social development, but also as part of traditional owners' general engagement with the native title system. Key issues discussed included:

4 Resources

Redirecting the native title system to the economic and social development of traditional owner groups in the way suggested above requires considerable resources. This issue arose in nearly all the consultations, with most parties saying it was impossible to achieve outcomes consistent with traditional owner economic development within the current resourcing arrangements. The consultation discussions concerning resourcing, and its relevance for economic development, centred on four main issues:

Native Title Representative Bodies

Native Title Representative Bodies (NTRBs) are discussed in some detail above (section 3, Capacity development). This discussion explains the capacities NTRBs need to help traditional owners further their economic development goals.

The preamble to the NTA states: 'It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation'. NTRBs are funded by the Commonwealth in the following way: base funding for each NTRB53; additional funding and assistance provided to some NTRBs through a reserve fund; a strategic priority claims resolution program; and a capacity-building program.54 The Commonwealth Parliamentary Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund is currently conducting an inquiry into NTRB capacity, with particular reference to NTRB funding.55 I provided a written submission to the committee and made a number of recommendations including:56

The amount of assistance that NTRBs can give traditional owners is dependent on NTRB funding. As explained earlier, achieving economic development for traditional owner groups often requires a multi-disciplinary approach. Staff in some NTRBs include economists, geologists, environmental scientists, mining experts and others, in addition to field officers, anthropologists and lawyers. While not all NTRBs need to have this range of experience among their permanent staff, they need resources to be able to contract or employ additional specialists where relevant.

During the consultations, a variety of respondents, both Indigenous and non-Indigenous, raised concerns about the priorities of NTRB funding. A state government official explained the ramifications of NTRB funding being tied to an adversarial system. Various respondents in NTRBs report having insufficient funds to conduct both litigation and agreement-making, requiring NTRBs must choose between these processes.57 As the NTA requires NTRBs to prioritise protection of native title interests above other work,58 NTRBs are statutorily bound to attend to litigation first. The ability of NTRBs to address agreement-making and economic development within the Commonwealth's resourcing arrangements is very limited.

These views are supported by the experiences of local government. NTRB resources are so tied up in litigation and related matters, that NTRBs cannot negotiate agreements, thus impeding local and regional development.59

Many of the more successful examples of native title working for the benefit of Indigenous people - Burrup60, Yandicoogina61, heritage arrangements in Qld62 and WA63, the SA statewide negotiations64 - were not achieved through the Commonwealth's regular funding of NTRBs. These outcomes were all extensively assisted, and in some cases entirely funded, by the relevant companies and state governments. It shows that, in some critical aspects, the Commonwealth's system of funding is unable to assist Indigenous interests to the extent necessary to achieve agreements. Claimant groups who do not have an opportunity to engage with companies are particularly affected. The situation also presents conflict of interest issues, giving those seeking to develop Indigenous land an actual or potential advantage in negotiations. As the Kimberley Land Council has previously explained to the Commonwealth Parliament: 'We are left in the position of having to ask those resource companies to provide the funds in order for us to fulfil our statutory obligations'.65

Several NTRBs reported that, due to funding shortages, their 'engagement' with native title claimant groups is limited to advising and taking instructions from the claim's applicants listed on the Federal Court's records (and this is sometimes only five people on behalf of a group of 100 or more). This process relies on those few applicants ensuring that information is passed out and back between the whole group and the NTRB. This is an onerous task, which often does not properly involve the larger group in decision-making on matters affecting it. Where funding allows (often with use of targeted additional funding) these same NTRBs adopt a far more comprehensive and inclusive process for the negotiation of larger agreements, indicating that they are aware of the shortcomings of the more limited engagement.

Another observation on NTRB funding came from the perspective of companies and other non-government parties. These parties prefer to deal with NTRBs and traditional owner groups who are funded in a way that enables them to engage appropriately in the process. Rio Tinto advised the Parliamentary Joint Committee on Native Title last year that because of the insufficiencies of the Commonwealth's funding of NTRBs, the progress of many negotiations relied on company funding:

[B]ecause of the funding situation and our need to establish equity in any negotiation in order for it to be credible and stand up down the track, we will often provide resources to rep bodies66

Where a company (or state government) is able and chooses to provide funding to NTRBs, beneficial engagement can occur. But this leaves a very inequitable system. In Queensland, respondents lamented the lack of consistency in the resourcing of NTRBs. It has also been observed that there are no criteria guiding the application of the Commonwealth's strategic claims and capacity-building funds for NTRBs, resulting in concerns about lack of transparency in decision-making about use of the funds.67 It should be noted, however, that not all company financial assistance is earmarked for particular negotiations of direct benefit to the company. Rio Tinto has provided two scholarships for candidates to undertake postgraduate study in mining law and policy on the condition that the recipients commit to working within the NTRB system for at least two years after the study.68 This program, which is an initiative flowing from the NTRB lawyer professional development project currently being undertaken under the auspices of the Castan Centre for Human Rights Law at Monash University, is an invaluable way of increasing the experience and capacity available to traditional owner groups through NTRBs.

Insufficient NTRB funding not only limits the resources and skills NTRBs can bring to a particular issue, it also curtails the broader role of the NTRB in assisting traditional owner groups resolve governance and development issues. During the consultations, some respondents discussed the wider community role that some NTRBs used to provide, but explained that this has been curtailed by restrictions in conditions and funding.

The NTA gives some indications that an NTRB should fulfil a community role. For example, under the Act an NTRB must:

These statutory provisions suggest that these bodies are more than simply service providers. But, as raised repeatedly during the consultations, the funding limitations of the NTRB system are obstacles to increasing the role of NTRBs.

The Commonwealth Government and Parliament have been consistently alerted to the lack of NTRB resources and there have been repeated calls for more funding. Increased NTRB funding has been recommended in the reports and reviews of Commonwealth agencies,72 Commonwealth Parliamentary committees,73 State Governments74 and industry75. The issue is of concern even outside traditional native title/Indigenous areas: a Commonwealth Parliamentary inquiry into mineral exploration received many Government and company submissions recommending increases in NTRB funding.76

Various NTRBs expressed frustration at their funding being tied to 'native title outcomes', particularly where, because of the 1998 NTA amendments and subsequent High Court decisions, the range and availability of native title outcomes is decreasing. This encourages NTRBs to diversify their funding and find opportunities for assisting traditional owners' economic development outside of native title funding. Some NTRBs have staff and projects funded from sources other than the Commonwealth's NTRB funding. For instance, State Governments fund staff in NTRBs in Queensland and Western Australia to work on mining-native title matters.

State Government assistance

Most of the financial assistance to parties engaging in the native title system comes from the Commonwealth Government. However, as explained above, that funding is often insufficient and various State Governments also provide financial assistance to NTRBs and Indigenous groups.

Usually, State Government funding is targeted at enabling or finalising specific negotiations, and properly informing and advising relevant Indigenous groups. Well-known examples of this include the SA statewide negotiations,77 Burrup negotiations,78 and the Queensland Government's assistance for authorisation meetings to finalise Indigenous Land Use Agreements (ILUAs).79 In other instances, however, state governments have provided funding not just for specific negotiations, but for an ongoing process. For instance, both the Queensland and Western Australian Governments provide funding to NTRBs to be used in processing exploration/heritage matters. In Queensland, some of this funding is being used to produce long-term outcomes, with one NTRB hiring an officer to develop template material to help groups deal with exploration, tenure and associated heritage issues themselves.

State governments must be commended for funding negotiations and other initiatives that increase the potential for beneficial economic and social development outcomes for traditional owner groups. One difficulty with this funding, however, is that even where funding is provided for an ongoing process rather than a specific negotiation, it is almost always provided where the state government wants a particular outcome (such as to increase the processing of exploration tenure, facilitate a particular industrial development, or expand residential areas). This means the potential for assistance is entirely dependent on the state government's priorities and interests. Commonwealth parliamentarians have previously commented on the danger that progress will occur only in those areas with resources of interest to government and industry.80 Native title might then become a system to assist the state governments with land management, rather than to recognise and protect Indigenous connection to land. Native title must be able to provide a nationwide system, not a system where some traditional owners can receive assistance if they live in particular area or want to negotiate a particular development.

One respondent, during the consultations, urged that government funding be channelled, as much as possible, directly to the community. I consider that funding allocated to assist Indigenous people in communities should be monitored to ensure the proposed benefits are reaching the intended beneficiaries. However, in light of some of the issues discussed above in section 2, Governance and section 3, Capacity development, it may be that supplying funding directly to communities is not the best approach for long-term development where governance structures and community capacity in the traditional owners group are not yet developed.

Government funding for non-Indigenous parties

The Commonwealth Government provides financial assistance for non-Indigenous parties to engage in the native title process. Most commonly, this assistance is provided through a legal aid scheme where respondent parties to native title claims receive reimbursement for the legal fees they incur in native title proceedings.

Previous Native Title Reports have commented on the Commonwealth's respondent funding scheme,81 noting its effect in hardening the positions of those who already have their interests protected in any event,82 and its seeming encouragement of litigation over negotiation.83 During the consultations, an NTRB in Queensland expressed frustration at the inequality created when mining and other companies are financed directly by the Attorney-General, putting NTRBs (and therefore the traditional owners they represent), with limited funding as described above, at a disadvantage when appearing in arbitration hearings about the doing of future acts.

Various parties raised concerns during the consultations about the prioritisation of funding litigation. The effect of this is that initiatives seeking a broad negotiated outcome (e.g., the state-wide negotiation process in SA) are not funded, because they do not relate to a specific native title proceeding. The Commissioner has previously reported on how funding is being withdrawn from some of the more progressive negotiation-assisting measures.84 In effect, respondent funding is more litigation-focused, and even where it can be applied to negotiations, these are negotiations of a particular case rather than a regional or wider process.

Respondents explained that unequal distribution of funding is further exacerbated by current legal understandings of native title. Given that respondents' interests are largely protected (i.e., non-Indigenous rights are deemed to 'override' any inconsistent native title right), the threat of litigation and a court ruling is of little consequence to respondents because their costs are met through the Attorney-General's funding. These parties explained that, on the Indigenous side, the threat of litigation is very real, as adverse findings may impact severely on traditional owners' use of land.

Prescribed Bodies Corporate

The role and structure of PBCs were discussed above in section 2, Governance, where it was suggested that there is a need for alternatives to the existing PBC model and for traditional owners to be able to choose which governance structure to adopt in light of their particular circumstances and goals. At this stage, the NTA requires traditional owners to establish a PBC when a positive determination of native title is made. Despite PBCs being mandated by legislation, there is currently no government funding provided for them.

The issue of PBC funding has been a contentious one for some years. The Commonwealth does not provide funding for PBCs and has suggested that this could be done by other parties.85 While this situation continues, native title holders are unable to exercise or protect their native title rights. The WA Pastoralists and Graziers' Association told the Commonwealth Parliament that, while the Nharnuwangga Wajarri and Ngarla determination in WA enables traditional owners' access to country, these rights cannot be enjoyed because of a lack of implementation funding.86

During the consultations we were told that some PBCs have been able to obtain funding assistance from non-government sources, but just as with other areas of native title, this happens mostly where mining companies are interested in the native title land. When the PBC is operating in an environment where there are few opportunities for economic return for companies, such as in national parks, the funding possibilities are either inadequate or non-existent.

The issue