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:

• the process allows
  too many non-Indigenous people with limited interests to become part
  of the claim process;
• the hostility
  and aggression that claims can generate and the impact of this on the
  capacity of claimants to maintain their stamina in lengthy negotiations;
• the need to allow
  time and resources for people, typically excluded from decision-making
  processes, to work out want they want from negotiations and the kind
  of relationships they could develop with their neighbours; and
• the reluctance
  of governments to genuinely enter negotiations constructively.

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:

• they are compelled
  to attend mediation sessions about claims that, on their legal advice,
  are without merit;
• some pastoralists
  have expressed the view that they are disadvantaged in these mediation
  sessions in comparison to the claimants; and
• they believe that
  they suffer financial disadvantage as a result of the claims.

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