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Building co-existence

Guest lecture by Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, to the Anthropology Department, University of New South Wales.

I would like to take you from this high density campus and out to the expansive, red plains of Central Australia.

I have been invited on to Aboriginal land in South Australia, south of the Northern Territory border.

Under clear blue skies on a warm afternoon, Yankunytjatjara members of Anangu Pitjantjatjara peoples are sitting in the shade of large gum trees on the banks of a broad, dry creek bed. They have come from far and wide to be at this important meeting. There is a good turn up, despite a number of people having to attend to other responsibilities.

The Anangu are engaged in an animated discussion about their native title claim to the de rose hill pastoral station which adjoins the land they are meeting on. On this Saturday in March they will, with the assistance of an interpreter, talk about their claim with members of the national Native Title Tribunal, representatives of the South Australian government and the mining company, CRA, as well as with their advisors from the Aboriginal legal rights movement.

It is a spirited and constructive discussion during which the Anangu identify the rights they seek to be recognised and voice their concerns. The other parties actively listen to the claimants and confirm their understanding of the claim. The tribunal indicates what role they might play in the claim and the other representatives indicate their organisation's positions. The following day, representatives of the Anangu and the De Rose Hill leaseholder gather with the tribunal, the government and CRA to discuss the claim and how their interests might be reconciled.

These meetings, like many others around Australia, were about rights and interests in relation to pastoral lands. In particular, the rights and interests of Indigenous Australians and a non-Indigenous pastoralist.

You will be aware of the current controversy over changes the commonwealth government wants to make to the Native Title Act. Pastoralists, some governments and some coalition backbenchers want the commonwealth to remove any native title that may exist over pastoral properties. Indigenous peoples strongly object to this as we firmly believe that native title still exists on pastoral properties.

So far, the courts have not decided the matter. At this stage, the matter should be left to the courts. If the courts find that native title does exist on pastoral leases, then any pre-emptive removal of native title by the parliament would contravene the principles of the Racial Discrimination Act and expose the commonwealth to compensation claims. The Prime Minister recognises this and is resisting moves to take away, or extinguish, native title on pastoral leases.

Instead of extinguishing native title, Indigenous peoples believe that every effort must be made to find ways that native title holders and pastoralists can co-exist. The commonwealth could recognise co-existence. This would provide certainty and encourage negotiation.

Underlying the strong desire of those seeking to remove native title from pastoral leases is a misunderstanding that native title will remove the rights of pastoralists. If native title survives on pastoral leases, those leases will continue to exist. Submissions made by the claimants in the Wik case reveal that Indigenous people are quite accommodating on this matter:

the pastoralists have lived and worked on the land for many years and have strong moral claims to remain throughout the expected term of their leases. All that the [native title] applicants seek are declarations as to the concurrence of their own title and as to its nature and extent.

To understand the attachment of Indigenous peoples to land subject to pastoral leases, it is necessary to look at the history of Indigenous people in the pastoral industry. In the words of Jack Jangari:

ah yeah. Well they [Aboriginal stock workers] was good, you know. They made wave hill rich. They made every station, whatever station there in the territory now, we made all them places rich. And [they] keep us fellows poor.

When Justice Brennan observe in Mabo that "Aborigines were disposed of their land parcel by parcel to make way for expanding colonial settlement", it is important to realise that this supposed 'dispossession' was experienced differently in different parts of the country.

A critical fact for Aboriginal people whose land was put to use by the pastoral industry is that the needs of the settlers did not require that they be removed from their land. In many places Aboriginal people remained on the land and provided a source of labour for the industry. As Henry Reynolds has put it:

not only was European pastoral occupation not inconsistent with continued aboriginal occupation, it totally depended on it. Black labour outnumbered white labour in places like north-western Queensland by five or six to one. Aboriginal bushcraft and knowledge of country made open-range ranching possible; their largely unpaid labour edged it into marginal profitability.

Because the industry needed Indigenous people does not mean that the experience of colonisation was benign. The need for labour was secondary to the industry's immediate requirement for ready access to land.

In the early days of settlement, Aboriginal people were killed in large numbers in order to quell their opposition to the use of their lands or to 'punish' them for what settlers characterised as 'cattle theft'. As the expansion of the industry continued, it became apparent that settlers would need to expropriate Aboriginal people's labour as well as our land in order to be viable.

Conditions were poor for many Aboriginal people working for the pastoralists. But despite the exploitation, Aboriginal participation in the pastoral industry insulated some Aboriginal communities from the most destructive impact of colonisation: separation from their land. Aboriginal people working on stations maintained their connection with their country and reproduced traditional knowledge. The effect of participation in the industry in Western Australia is described as:

in many ways, this involvement enabled the development of an acceptable post-contact way of life; a way of life that was symbiotic with that of the pastoralist. In this system Aboriginal social groups had the opportunity to maintain traditional skills, educate their young in their own manner and keep up the law by gathering for important ceremonial and social occasions.

Indigenous people who remained in occupation of their land despite the presence of pastoralists justifiably find the suggestion that a pastoral lease extinguishes native title strange and unacceptable.

For traditional owners, extinguishment of native title by the inconsistent grant of a pastoral lease is a meaningless concept. Whatever the position in non-Indigenous law, all the rights, obligations, responsibilities and relationships that constitute ownership in the Indigenous system continue to exist.

Co-existence is a means by which rights under two systems of laws can be respected.

In the context of native title, the National Native Title Tribunal facilitates the process whereby native title claimants and pastoralists can seek agreement as to the terms of that co-existence.

The High Court recognised native title for the first time in 1992. After the euphoria died down, the government realised that it must create a quicker, cheaper mechanism for the recognition of native title. It had taken Eddie Mabo and the Murray Islanders ten years and millions of dollars to get recognition of their rights. To force all other Indigenous people to pursue the same grueling road was unacceptable.

Justice French, President of the Native Title Tribunal, has said:

All the money in Australia would be insufficient to pay the bill if all native title claims were litigating in the courts.

Enter mediation! Mediation has been touted as the cure for all kinds of ills over the last twenty years. So it was predictable that it would become a lynchpin in the native title system. The government set up the native title tribunal. It has a range of functions but principally, it is the body that mediates native title claims. The tribunal attempts to mediate native title claims by applying interest-based negotiation.

According to the President of the Tribunal, this requires the parties to:

  1. Identify their own and others' real interests and objectives,
  2. Consider a variety of options to accommodate those interests,
  3. Develop a criteria of legitimacy to test the fairness of agreements that might emerge from the process,
  4. And consider the best likely alternatives to a negotiated outcome.

The central problem for mediation of native title claims is power imbalance.

A mediator is not a judge. A mediator cannot force 'justice' on the disputing parties.

The mediator will attempt to ensure equality of process. Both parties get a say, the mediator allows neither party to interrupt etc., however, where there is gross disproportion in the power of parties to a dispute, a mediated settlement is likely to enshrine that inequality.

Simply put, the biggest single operating cause for this power imbalance is dispossession. All the various implications of dispossession can't be summarised here. I will just give you a few examples of the impact of dispossession in native title meditations.

Most native title claimants feel that the odds are stacked against them. The process works like this: Indigenous people have to prove that they have a connection to land. Other parties don't have to justify their expropriation of Aboriginal land. Mediators might object at this point that, in mediation, nobody has to prove anything. This may be true but it is not the experience of claimants who have been through mediation to date.

According to the structure of the system and the perceptions of the non-Indigenous participants, the claimants come to the table without recognised rights. Whereas all the other parties have rights that are already sanctioned by law. The claimants are told they should provide evidence of the plausibility of their claim to be taken seriously by the other parties to the mediation. Claimants feel the injustice of this situation very keenly. A Yorta Yorta elder expressed her disgust with claims the process with these words:

these photographs on the wall and all this history, that's just a sample of our culture here. So why do we have to prove ourselves to some drunk down the road. Why aren't the other people made to prove by what authority they are on our land. It is an insult to our people.

Contrary to the perception of the non-Indigenous parties, the claimants will often believe that they are the only people at the table justified to speak about or for the land. This gulf is the context in which all negotiations over native title will occur.

If it is managed properly and all parties approach it in good faith, the process of mediation itself might help to close this gap. The idea is, of course, that both sides of the dispute will come to understand each others' claims and expectations and find acceptable accommodations.

With this objective in mind, a number of commentators, including myself, have expressed concerns at the way native title meditations are being conducted. Some of my concerns are:

It is necessary to point out that if parties to native title claims were truly concerned about protecting their interests rather than maintaining their positions, there would be very few prerequisites to mediation.

Having expressed those concerns and briefly explained the relationship of Indigenous Australians to pastoral lands, I would now like to return your attention to those meetings in Central Australia that I mentioned at the commencement of this talk. The meetings were being held in relation to a mediation process being conducted by the National Native Title Tribunal. I intend to make some observations as to how the mediation process is working in that particular situation and to draw out some more general observations. The content of mediation sessions is confidential so I will confine my comments to the mediation process and information provided outside of the mediation sessions.

The Anangu claimants have strong traditional, spiritual and historical ties to the De Rose pastoral lease. The De Rose Hill property is of great spiritual significance to the claimants and to other Aboriginal people under traditional law and custom. There are at least fifty sites of significance and in addition there are several important ancestral tracks. The claimants have obligations under traditional law for those sites and tracks. Under traditional law the claimants had the right to be and remain on the land, to enter it without obstruction and to move around it. They were entitled to control access to the land by others.

They now claim possession, occupation, use and enjoyment of the land consistent with the pastoral leases over the area. That is they claim, consistently with the pastoral leases, such rights as the right to conduct religious activities and to care for sites; to collect food and to camp on the land, including the establishment of shelters.

Some of the claimants were born on the claim area and many lived and worked on it. The claimants acknowledge that the pastoralist has pastoral leases from the state and that they are entitled to run a pastoral business on the land. The claimants want the pastoralist and the state government to recognise their continuing native title rights and interests over the same land.

Significantly in relation to the native title claim, under s 47 of the Pastoral Land Management and Conservation Act, 1989 (SA), the claimants have rights to enter, move across or stay on the pastoral property in line with their traditional pursuits.

Over three days in Central Australia, I attended a number of meetings convened in relation to the mediation process being facilitated by the tribunal.

I was impressed by the way the claimants decided on the eventual timing and location of the bush meetings. Many of the claimants had to travel long distances and overcome a range of difficulties to attend the meetings. Appropriately, the claimants decided when the meetings would commence. And they decided just where we should all sit. People addressing the meeting spoke from the middle of a large semi-circle of claimants, advisors and representatives of the, tribunal, government and the mining company all sitting together. It was not a case of the non-Indigenous mediators and negotiators all sitting together at the front with the Indigenous claimants down the back.

I was also impressed at the comprehensive preparations that the claimants and their advisors had put into their claim. Extensive efforts were made to get claimants to the meetings and to support the conduct of the mediation sessions. A number of Indigenous organisations were involved, including two representative bodies for native title claims: the Aboriginal legal rights movement and the Anangu Pitjantjatjara Land Council. I have expressed concerns elsewhere about the pressure placed on claimants by lack of resources for demanding mediation schedules. So it was pleasing to witness proper resourcing for this mediation endeavour.

The comprehensive preparations were also demonstrated by the interest and the very focussed approach the claimants took to the meetings. The tribunal and the government dealt directly with the claimants, with the government in particular being subject to very informed questioning about native title. When the claimants were present, there was no need for them to deal through their advisors. This revealed to me, and to other people participating in the meeting, that the claim is under the control of the claimants and is not been driven by their advisors. Sometimes land claims are on the receiving end of contrary allegations.

I believe the claimants directly voicing their aspirations and their concerns about the claim had a very powerful impact on those attending the meetings. In this sense, the meetings were quite successful in that a mutual understanding and respect for the respective concerns of the participants were enhanced - this allowed a constructive approach to be taken in the full, or plenary, mediation session which was held on the third day.

Unfortunately, the bush meetings were not held, as had been hoped, on the land being claimed. This was because of an unresolved dispute between the claimants and the pastoralist over access rights to the pastoral station. The claimants were very disappointed that they could not meet with the pastoralist on the station to discuss their claim. The bush meeting actually took place on Anangu Pitjantjatjara lands adjacent to the claimed land. While acknowledging the claimants disappointment, this proved to be a workable compromise.

The success of the meetings underscores how it is essential for meetings with claimants to occur on their country. These discussions need to be at locations in which claimants feel comfortable and where they are at home talking in a very direct and frank way. Taking into account the cultural disadvantage and power imbalance working against claimants, it is essentially that they do not, in addition, feel threatened by the surroundings.

Where English is a second language for claimants, their disadvantage in meditations cannot be underestimated. Talking on their own turf alleviates that disadvantage to some extent. A fundamental point to remember is that Aboriginal people cannot talk about their country when they are not on it.

Another essential ingredient of native title meditations is goodwill. This was demonstrated by all participants in their approach to the bush meeting.

The tribunal acknowledged the importance of the proceedings by the personal participation of its President, Justice French, in addition to another member of the tribunal, Mr Chaney. Both these members were enthusiastic in their efforts to communicate directly and effectively with the claimants. They responded well to issues raised by the claimants and took the trouble to return, albeit briefly, after the plenary to update the claimants on the outcome of that session.

However, there was a feeling that at times the tribunal appeared to be pushing the parties through the mediation process. It was also felt that the tribunal was rather insistent on conducting a plenary session despite the difficulties confronting the success of the mediation that were emerging in the lead up to the meetings. In the event, the plenary was quite constructive as I have said.

The South Australian government placed a suitable level of importance on the proceedings by dispatching its Solicitor-General to the mediation sessions. Its the first time I have seen a government's number two lawyer go to the bush and talk to a mob of Aborigines. What is more, he responded very fairly to the challenging questions directed at him. The Solicitor-General was very clear and worked well with the interpreter. A straightforward outline of the government's position was given. On behalf of the government, he demonstrated a genuine intention to come to an agreement without disputation. The claimants appreciated this approach.

More imminent prospects exist for an agreement between the mining company and the claimants and there was quite an amicable atmosphere during the discussions between these parties. Importantly the goodwill evident in the bush meetings continued at the plenary. In the circumstances, the claimants took an active decision not to attend this meeting. Nor did the pastoralist attend. Both groups were represented by their advisors.

The plenary meeting was held in a roadhouse, down the road from the bush meetings. Out of the bush, and being a meeting of representatives, it was of very different character to the previous days proceedings. It was less of a discussion and more of a negotiation over issues and timetables. There was a clear and mutual desire to take the process forward. Participants were clear about their positions, including their concerns. The pastoralist's representatives made considered and helpful contributions. With the aid of the tribunal, the parties agreed on a process that allows their concerns to be addressed and which could provide the basis for a settlement of the claim.

Apart from the attractiveness of such an outcome in itself, a settlement would also fulfill a strong and mutual, but not unequivocal, desire of the parties to avoid the courts. Such an objective is in accordance with the views of the High Court in the Waanyi case:

if it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims.

I have described the accommodating approach to the mediation taken by the parties to the De Rose Hill mediation. But at the same time there are significant differences in outlook and tensions amongst them. They all have different interests to pursue. There is ample potential for any prospect of any agreement to come unstuck. From the perspective of the diverse interests involved, there is no easy resolution to the issues involved in this claim. In these circumstances, the approach of the participants at the mediation sessions was laudable. If a satisfactory agreement is reached, that will be commendable.

In relation to those parts of the mediation process I witnessed in this Yankunytjatjara claim, many of the concerns I have with the mediation process have been positively addressed. A remaining concern is the tension between the pastoralist and the claimants, such that a meeting directly involving these parties is yet to be convened.

Any settlement of this claim will have to encompass co-existence of the claimants and the pastoralist.

For pastoral leases around the continent this will involve the resolution of a variety of land management issues. A number of these are concerns for Indigenous parties. Another set are issues for pastoralists. A particular issue often generates a related concern for the other party.

Typically the concerns might include the Indigenous right to take unpolluted water, which raises the extent of fencing around water sources. The right to Indigenous foodstuffs raises the matter of stock management. The protection of inter-related sites raises the question of who is going to pay for the fencing.  There will be concerns about the residence and access rights of native title holders. The maintenance and use of roads is an issue: can native title holders travel cross-country to visit sites not serviced by roads on pastoral properties? Clean-ups after visits are a well understood responsibility.

In situations of co-existence, the rights of native title holders will be subject to those of pastoralists and vice a versa. How will responsibilities for land management be shared and how will they be funded?

The pursuit of a co-existence settlements raises two threshold questions: for the non-indigenous parties there is the concern as to whether they are dealing with the traditional owners having the authority to speak for the country in question. The concern about identity can be satisfied with an explanation of the process used to identify the native title holders with authority to speak for the land. The thoroughness of the process is likely to bear a relationship to the likelihood that the collection of native title holders has been identified accurately.

Inherent to the native title process is a dialogue about Indigenous rights. Procedures used to ascertain native title rights cannot be separated from what Indigenous people say and do. That is, in so far as native title rights can be substantiated, they can be demonstrated by what Indigenous people do and what they tell those involved in the claims process.

The provision of information about land by claimants explains a lot about the native title rights in question. Who tells you, who's allowed to speak and on what authority gives an insight into those rights. Native title rights are demonstrable in the speaking of the rights. For instance, a whole load of senior people may be present at a mediation but may do very little talking. A younger spokesperson may have important things to say about country. But those things would not be said without the presence of the senior people. Their presence provides the authority to speak and demonstrates the continuing existence of laws and customs in relation to country.

The second threshold question is held by the claimants. It is the question of whether they should engage in the whitefella system of mediation; legal rules and precedents; halfway, framework and final agreements; and other pieces of paper. Do our rights to country get lost in this maze of legal and administrative devices?

Access to hunting, camping and ceremonial rights can often be obtained informally through verbal arrangements. So why is it important to have pieces of paper and go through all the headaches involved in getting those pieces of paper? There are a range of answers to this including the protection afforded by legal documents against changes in attitude and as a protection against attempts to infringe Indigenous rights.

While native claimants might have reservations about the non-Indigenous legal system, they are often experienced with the tools of trade of lawyers and governments. They understand whitefella bits of paper. They understand the protections such devices can provide. Such a level of understanding can be indicated by the form of questions that claimants ask when dealing with their advisors.

Despite any familiarity with an alien legal system, it is important that claimants feel involved with the claims process and that they have opportunities to indicate when they are uncomfortable about the procedures they are involved in. As with the Central Australian mob, what claimants say can be a sign of their true involvement in the claims procedures. It is essential that claimants participate and that the process does not progress regardless of them.

It is necessary that advisors continually check that the claimants are with them and that they really understand what is being done and why.

As far as pastoralists are concerned, the principal problems they perceive arising out of native title claims over pastoral leases can be summarised as follows:

Certain facts must be considered when weighing up the pastoralists' objections to participating in claims to pastoral leases. Firstly, it is important to remember that the tribunal has no power to make a binding determination. The tribunal process can have no impact on the pastoralists' rights unless they themselves agree to a determination, which is then ratified by the federal court.

Mr Latham posed a relevant question during the parliamentary joint committee hearings:

how much of a hardship is negotiating around the table without any compulsion to agree to something that is not in the interests of the parties concerned? It doesn't sound too bad?

Secondly, some of the problems people have with the idea of mediation arise because the process is unfamiliar and not because it is fundamentally unworkable. Some of the fears expressed by the pastoralists will abate by actually participating in the process. As one Cape York farmer said to a reporter after the Wik mediation :

I think it was a bit better than I thought. On the basis that people actually did get together and talk about it in a good spirit of mediation. To achieve that alone was far better than what we had before.

In the Federal Court proceedings before Justice Drummond, the lawyers for the Wik people made arguments that native title had survived the grant of pastoral leases. Justice Drummond found against the Wik people and the claim is shortly to come before the High Court.

Despite these proceedings, for the Wik, the true test of their ownership does not come in the courts of the Australian legal system:

As the Wik see it they 'own' the land in the strongest possible sense, and they confidently expect the high court to ratify this ownership. Their clans, distributed across the area, came into being with the land itself. The land was made meaningful as it was peopled, in a network of interconnected places. Through these places the land owns them as they own the land. Owning the land is owning and publicly articulating the stories through which the land is meaningful .....

In pursuing their claim through western legal channels in the language of white constitutional and contract law, the Wik people's patience and forbearance is manifest. It is easy to see why Mcnaught Ngallametta, a senior Wik man, feels that "we have respect for their law. But they have no respect for our law".

At the same time as pursuing their claims through the courts, the representatives of the Wik people, the Cape York Land Council (CYLC) and the Peninsula Regional Council of ATSIC, have actively sort co-existence through a negotiated agreement with major land interests in the cape.

The agreement provides a framework for security of pastoral leases in relation to native title and the restructuring of leases and upgrading of tenure. Indigenous people gain a framework for access to pastoral leases and title to leases that are purchased for their high conservation value.

The President of the Cattlemen's Union, Mr John Purcell, has described the agreement as:

a tremendously significant step towards achieving our objectives. It will be good for us, good for the land, and good for the region.

Noel Pearson from the CYLC said that:

the essential truth is the unbreakable connection of Aboriginal people to the land. It never will be possible to recognise that adequately in law. It can be achieved at the local level and only by reconciliation founded on agreement.

Sadly, as we have seen, the Queensland government will not back the agreement. As is too often the case, a government is standing in the way of the resolution of native title and other land use issues.

Against this disappointment, it was refreshing to have visited the red soils of Central Australia. There, under those tall gums, the South Australian government was sitting down with the Yankunytjatjara people and taking a far more constructive approach to co-existence.

Last updated 1 December 2001