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Issues Land Native Title Negotiating the Registration Test for native title claims: A manual
for Anthropologists working with Native title representative bodies 16 December 1998 Dr. Julie Finlayson, Research Fellow, CAEPR, The Australian National University, Canberra. Table of Contents: Who faces the registration test? What does the registration test require? Conditions on the merits of the claim (s.190B) Conditions on procedural and other matters (s.190C) What benchmarks exist for compliance with conditions of the registration test? Conditions of the Registration Test S.190B(2) Identification of area subject to native title S.190B (3) identification of the native title group S.190B (4) identification of the native title rights and interests S.190B (5) factual basis for claimed native title rights and interests S.190B(7) traditional physical connection S.190B(8)-compliance with s.61A S.190B(9)(a) ownership of minerals, petroleum or gas owned by the Crown. S.190B(9)(b) exclusive possession of an offshore place S.190B(9)(c) other extinguished native title rights and interests Conditions on procedural matters S.190C(2) information required by s.s.61 and s.s.62. S.190C(3) common claimants in overlapping claims S.190C(4)(a) and s.190C(4)(b) certification and authorisation The NTRB Certification process
Acknowledgments The original idea for a manual to assist anthropologists came from Brian Stacey, Manager of the Native Title and Land Rights Branch of the Aboriginal and Torres Strait Islander Commission (ATSIC), and also an anthropologist. His objective was to assist anthropologists in a practical way in their role in the new native title claim processes in particular with respect to the registration test. From experience, it is evident that anthropologists and Native Title Representative Bodies (NTRBs) will face daunting research requirements and time constraints under the amended legislation. In many cases, the pressures on the NTRBs in terms of proficient staff has meant that anthropologists could expect limited support from the organisation. Mindful of such pressures and difficulties, it was anticipated that a manual might directly help anthropologists and claimants to engage efficiently and competently with the new requirements for claim registration. Consequently, the manual strives to provide an accessible coverage of the registration test and to cut a middle, and manageable, path between the legal aspects of the compliance test and the expectations for anthropological research. Colleagues who have given their time and energies for a careful peer review of the material are Diane Smith, Peter Seidel, Bruce Rigsby, David Martin and Guy Wright. Their comments on specific points have added much to the draft text and, hopefully, have ensured that glaring mistakes have been dealt with and are not repeated. ATSIC Native Title and Land Rights Branch financially supported the Native Title Registration workshop for anthropologists in Canberra in September. Use of the manual should not be a substitute for direct reference to the amended Act; the manual is an ancillary guide only to implementation of the requirements on claimants under the amended legislation.
The amended Native Title Act 1993 requires that native title applications (or claims) pass a registration test before the claimants gain procedural rights under the legislation. It not only applies to applications lodged after that date (that is new applications lodged in the Federal Court): ultimately more than 700 claims lodged since the Native Title Act commenced on 1 January 1994 will be subject to the new registration test. That is, the registration test is in effect retrospective. The new provisions of the Amendment Act 1998 requiring such registration came into effect on 30 September 1998. Under the new regime, once an application is lodged in the Federal Court, it will be referred to the National Native Title Tribunal (NNTT) to apply the test. Not all of the more than 700 applications already in the system will be immediately subject to application of the registration test but many of them will have to face it in the next 12 months. All new applications can certainly expect to be subject to the test straightaway. The most important aspect of the registration test as far as claimants are concerned is that it provides a gateway to accessing significant procedural rights; in particular:
Other entitlements once the registration test is passed are:
Thus the amendments have established a test for securing the Right to Negotiate and other procedural rights. If the application fails to pass the test, these procedural rights are not available to the claimants. Moreover, the procedural rights will only be granted in relation to those native title rights and interests recognised by the test. This means that an application should present a detailed best case scenario for claimed native title rights and interests as the inclusion of the specifics of these in the test have very important consequences for the RTN and arbitration. For example, if only three rights pass the registration test, then claimants can only negotiate over these three rights during the RTN. This also means that in arbitration, only the same three rights can be discussed for compensation. However, it should also be pointed out that if a native title group fails the registration test, it does not lose its native title claim and can still proceed with the application through the Federal Court and through mediation. On the other hand, the amended legislation passed on 30 September 1998 no longer provides claimants with the kind of leverage which required resource developers to negotiate with them over a wider range of future acts. This may mean that if a claim has not passed the registration test, non-claimant parties may be unwilling to engage in discussions for negotiated outcomes. This position may be based on a perception that a claim unable to fulfil the requirements of registration may be a weak claim. The Federal Court is also likely to make an assessment as to whether or not a mediated outcome to the claim is achievable and they will, accordingly, direct the claim either into mediation or into the Federal Court. The Federal Court now has the power to make decisions as to whether a claim will be referred to the NNTT for mediation or not; the Court can also refer a claim, or part of it, or a particular issue, back to mediation. Other key aspects of the amended Act involve the imposition of statutory requirements for the way in which Native Title Representative Bodies (NTRBs) will operate; and the reduction in overlapping claims through new restrictions on dual membership of claimant groups for the same area of land. The roles of the NNTT have been curtailed, with a corresponding increase in the powers associated with the Federal Court role in the native title claim process with the possibility that States can set up their own alternative mediation regimes. It is self-evident that claim applications should be developed by a team of NTRB professionals who can clarify the new and existing regulations in relation to anthropological and legal questions involved. But for anthropologists four issues are likely to be of central concern in claims seeking to meet the registration test;
In the anthropological commentary below, some cases appear about which additional questions and matters to investigate have been suggested. Often the issues go beyond the immediate concern of meeting the registration test. However, they have been included because many claims will go on to the Federal Court where scrutiny is more intense than any prima facie consideration. Finally, another important thrust of the amended legislation is a review of organisations currently accorded NTRB status. The review will take place over the next twelve months (30 October 1998 - 30 October 1999) to investigate both areas of representation and which organisations continue to have NTRB status when the new statutory regime comes into effect.
In order to assist anthropologists with the necessary knowledge and background to meet claim registration, it was suggested at a Canberra Workshop, the Native Title workshop for Anthropological Practitioners held in Canberra, at University House, on 16-17 September 1998, that a practical working guide to the anthropologists role in the registration test process be written and circulated, and that this project should especially focus on the research demands on anthropologists preparing claims for NTRBs. Those referring to this manual should be aware that it is not a definitive legal document; indeed, it is simply one source of guidance as to how anthropologists might practically achieve the new benchmarks now necessary for registration of all native title claims, and to alert them to some of the major anthropological issues involved.
Apart from this manual, other important sources of information concerning the content and operation of the registration test include the: Explanatory Memoranda to the amendments (available on the web page of the Department of Prime Minister and Cabinet); the Australian Local Government Association home page (with a focus on indigenous matters and local government, including regional agreement processes (http://www.alga.com.au); and the NNTT web page (http://www.nntt.gov.au/). Many of these sites include links to other related and relevant internet sites. National Native Title Tribunal The NNTT has developed an interim procedures manual (available on its web page) outlining the policies, procedures and guidelines for application of the registration test and all anthropologists working with NTRBs should become familiar with this document as quickly as possible. The importance of such a document to claimants and their representatives is the outline it will provide of NNTT interpretations of the registration requirements and how these will apply when processing applications. The NNTT expects that stakeholders in the claims process, such as NTRBs and State Governments, will provide critical feedback on the NNTT procedures document, parts of which are still to be finalised. The NNTT is also developing a coordinated strategy for implementation of the amendments relevant to the new claims process. In that regard, the Tribunal has established a Registration Test Team to look at policy issues associated with application of the test as well as a Communications Team to develop educational strategies and stakeholder participation to create increased awareness of the requirements of the registration test and allied amendments to the Native Title Act. The NNTT has also produced a simplified registration kit consisting of fact sheets describing a step-by-step process for applications to go through registration quickly under specific conditions and within certain time frames. Another NNTT educational publication is Understanding the Amended Native Title Act (August 1998). The latter discusses other amendments affecting the claims process (such as the equivalent State and Territory bodies, Indigenous Land Use Agreements, and changes to NTRBs). The NNTT has also initiated an electronic register of current research into native title matters with the web sites and e-mail addresses included. Such information is directly accessible through the NNTTs web site.
For further enquires or specific information on claim applications and procedures, contact the NNTT freecall number, (1800 640 501) or write to the NNTT at GPO Box 9973 in each State and Territory capital city.
ATSIC is also an important source of support for NTRBs and claimants with the management of the new registration test. ATSICs Native Title and Land Rights Branch conducted a national workshop for NTRBs in Canberra on 18-19th August centred on implementation of the amendments. Following that workshop, it has agreed to resource State based teams in WA and most recently in Qld to assist NTRBs with the management of the registration test for claims. The Native Title and Land Rights Branch has also commenced publication of a regular Newsletter devoted to issues arising from the Amended Native Title Act 1993, including the registration test. However, the main priority of ATSIC is to administer the new process for selecting Native Title Representative Bodies and in that regard, it has published a Plain English Guide to these provisions.
For general information from the Native Title and Land Rights
Branch contact For NTRB changes, contact Robert See - (02) 6289 3308; For policy and legislation matters, contact Paul Burke - (02) 6289 3349. AusInfo (Australian government bookshop) sells copies of the amended Native Title Act 1993 at a cost of $19.50.
Who faces the registration test? All new claim applications will be subject to the registration test . However, of the existing 700 lodged applications to date, these will be submitted to the registration test according to specific time frames and within the streams or categories of claim established by the amended Act. Consequently, claim applications subject to the registration test are:
All applications made on or before the 27 June 1996 cut-off date (apart from new s.29 notifications) must be processed through registration as soon as reasonably practicable. However, the publication by government of a s.29 notification immediately ensures that any application to which this notice applies will face registration within a 4-month period. This period is concurrent with the commencement of the negotiation period (see diagram).
What does the registration test require? Broadly speaking, registration covers two sets of criteria: conditions on the merits of the claim (s.190B), and conditions on procedural and other matters (s.190C).
Conditions on the merits of the claim (s.190B) The following conditions are required in this section of the Act
for registration;
Conditions on procedural and other matters (s.190C)
A detailed analysis of these conditions in anthropological terms is given below. However, NTRBs will individually decide how to address many of these issues in research terms. Such decisions should undoubtedly involve consideration of factors such as the Tribunals view of the administrative benchmarks adopted for the test, including their compliance policies as well as the strategic approach adopted by the NTRB and claimants with respect to a particular claim and its possible future in the Federal Court. At this early stage in the application of registration procedures, it is clear that a number of positions might be advanced in relation to management of the amount and depth of research information, which could be required of claimants to succeed in registration. For this reason, the comments given below are simply one trajectory of a range of possible options (including litigation, negotiation and mediation). Precedents on aspects of the registration test are likely to emerge during application by the Tribunal of the thresholds in the registration test, and possibly, through legal challenges to particular policy interpretations and procedures under the Administrative Decisions Judicial Review Act (ADJR). It is equally clear that the NNTT will adopt certain positions in the application of the compliance procedures and NTRBs should be aware of these positions when developing their applications. The first step in meeting the registration test is for NTRBs to assess all their currently lodged claims and to identify which stream these claims fall into, and thus, which claims will attract registration in what time frames. The NTRB should then take strategic action; for example, in making decisions about the nature of the resources and time they can devote to particular claims, and the longer-term gains they see in successfully gaining registration. Such decisions will also include whether to explore alternative options, for example, negotiated outcomes both inside, and outside, the scope of the amendment Act.
What benchmarks exist for compliance with conditions of the registration test? From the NNTT perspective, registration will be handled primarily according to an administrative process, which includes ensuring that each application meets a checklist of registration requirements and that the process is not administratively burdensome and time-consuming, as well as affords natural justice to parties. The information contained in the application will be checked against a list of specified and standardised necessary requirements. It is unlikely that the application of the registration test, at least by the NNTT, will be treated as an anthropological exercise, so it is important for the NTRB to carefully evaluate the depth and degree of anthropological detail they provide to qualify under the test. It is also evident that what material is actually required by the NNTT to satisfy the test has yet to be fully determined, so that initially NTRBs will have to operate in an administrative context devoid of established precedents. Part of the responsibility for each application lies with claimants and NTRBs who must, therefore, decide what it is they want to prove. In addition, the application of the test by the Tribunals Registrar and/or delegated officers will be open to administrative judicial review. From the Tribunals perspective, this means that great care will be taken to ensure all claims are carefully scrutinised and that a standardised administrative procedure is consistently applied during processing of all claim applications. Ideally, NTRB research for a particular claim will contribute to an established and coordinated regional research strategy, which facilitates access to information about any particular claim from a wider field of collated anthropological and historical data. Unfortunately, in most NTRB situations this will not be the case, and new focused research will have to be undertaken in less than ideal circumstances, and under time frames set out in the Act to which NTRBs must adhere. There has been much preliminary discussion among anthropologists as to the degree of detail necessary to satisfy the Registrar. Arguments have swung between minimalist and maximalist positions. But whichever way an NTRB decides to proceed, two crucial considerations are evident: (1) assertions contained in the application must be verifiable and supported by field research with claimants; (2) whatever rights and interests are listed on the application will, if registration is granted, constitute the basis of negotiation in right to negotiate (RTN) situations (including arbitral considerations and compensation payments) and therefore must be carefully formulated. Additionally, the registration test is the main opportunity claimant groups have to access the RTN and other procedural rights. In this sense, a great deal rests on presenting the application correctly and strategically. A further point briefly mentioned above is that lodging an application is now treated as a legal process since every application is first lodged in the Federal Court. One rationale for the amendment Act was to formalise powers in the Federal Court, which the Brandy Decision had clarified that the NNTT could not exercise. Failure to gain registration is not automatically the end of a claim application; however, it is likely that other parties may come to regard registration as a benchmark for evaluating the merits of entering mediation and undertaking negotiations. Consequently, it is in the claimants best interests to achieve a successful outcome from registration if only to publicly signal a claims viability and credibility. If a claim fails registration, it is not the end of a claim. Claimants can still access the Federal Court processes for a determination of native title, including mediation. Finally, it is evident from the amended Act that the Federal Court has an enhanced role in the claims process. Once the application is lodged in the Federal Court, it is then dealt with by the Tribunal (for the registration test and mediation). But the Court, not the Tribunal, now oversight this process. It is the Federal Court, which drives the claims process and can make decisions about the future of claims by directing them from mediation into Court, if a mediated determination seems unlikely. Unproductive mediations will be referred to the Court. The capacity of the Federal Court to assess and intervene in mediation further highlights the importance of claims resting on a solid basis in research, since a Court hearing for a determination is always a possibility. A crucial point must be made at the outset; for the Registrar to accept a claim for registration it must first satisfy the conditions described in sections 190B and 190C of the Amended Act.
Conditions of the Registration Test S.190B(2) Identification of area subject to native title A map of the claim area must accompany the claim application. Two conditions in particular must be met: provision of a map clearly identifying and locating the claim areas; and identification in accordance with a transparent, conventional and appropriate system (such as a system of coordinates, or by reference to government gazette notices, or land parcel descriptions). The application should also describe the internal boundaries of the claim, that is, those areas within the wider area of the claim which are excluded because of their tenures. NTRBs should expect that the benchmark for clarity and precision in boundary definition would be held as beyond any reasonable doubt. The identification of the areas under claim will therefore need to be specified with precision and thus, references to longitude and latitude co-ordinates may be a useful, if not essential, means of achieving this. A written description of the claims external and internal boundaries, however, should not be seen as an alternative to inclusion of a map. Any description of the claim area must specify the parcels of land under claim and their tenure status. In claims which refer to specific parcels of land and water within a wider region, it is also critical that the internal boundaries, (and these are not cultural boundaries, but boundaries of land which cannot be claimed) are clearly delineated by reference to an appropriate methodology. Claimants should expect that such information will be checked for accuracy during the Registrars processing of the application. Therefore careful attention must be paid to ensuring that map coordinates and descriptions of claim areas align with one another. Discrepancies, after all, could lead to failure in the application on this condition. The NTRB will need to deal with the mapping requirements under a standardised recording methodology, but options exist as to which system an NTRB can follow, for example, descriptions of land could be provided through technologies such as Geographic Positioning System (GPS); or through government documentation such as the Government Gazette with its widely recognised system of descriptions and identification of land areas and tenures. In the case of claims, which extend into the seas, hydrographic maps will be required to specify the high/low watermark boundaries. Anthropologists and NTRBs would be advised to contact the NNTT Geospatial Unit early in the claim application research to get assistance with land tenure information and mapping services and, in particular, clarification of boundaries. Ideally, such contact and research should be made well before proceeding to the registration test. Another point to consider is that under s.64(1) any amendment of an application must not result in the inclusion of an area of water or lands not covered by the original application with one exception; namely, that if the amendment combines the application with another application then there can be included an area of lands or waters covered by the other application in the amended application.
A map cannot be taken to mean a rough sketch, a mud map, nor a plan of the claim area (according to the Concise Oxford, a plan is defined as a diagram or drawing). Hand-drawn diagrams are unacceptable because they are imprecise in terms of delineating boundaries. The emphasis in this condition of the test is that the Registrar must be able to clearly identify the location of the claim areas and their external and internal boundaries. Many earlier claims were initially lodged in haste in order to gain access to the RTN process. The accompanying maps were often lifted from local government maps, or maps of Aboriginal and Torres Strait Islander Commission regional council areas, and some maps were even hand-drawn overlays or pen shadings of the claim areas. A felt pen line on a map can be a matter of kilometres off on the ground. This will be unacceptable. Such improvised maps offer only general and limited descriptions of the claim areas and boundaries. They raise unanswerable questions about details of the internal boundaries (again, the boundaries of land which cannot be claimed) and they often fail to differentiate exact areas of claim and exclusion. None of these practices are now acceptable simply because such methods fail to unequivocally identify areas and boundaries to the degree that they are clear to the assessor. Additionally, boundaries cannot be defined by reference to natural landmarks or formations such as rivers, mountain ranges, river flats or roads and highways. For the anthropologist, claimants and NTRBs, there are two levels on which to approach the questions of maps. The first approach is that accurate mapping where details of the external and internal claim boundaries and tenures are identified is largely a legal task. The second approach considers the claimants description of their traditional country and the primarily anthropological landholding relationship involved. Both approaches, although different, need to dovetail and complement one another. An accurate understanding of the traditional landowning schema which claimants operate with, will necessitate visits to country to document and describe precisely their views of country, as well as intra-group and inter-group boundaries. As mentioned already, mandatory precision for maps also means claimants can no longer rely on vague references to the natural boundaries of either the physical landscape (creeks, lakes, swamps, mountains, etc), the built environment (roads, highway intersections, etc) or the political divisions of local, regional and state governments areas, in their own descriptions of indigenous land possession. However, many claims lodged under the Native Title Act 1993 used linguistic maps, especially that attributed to anthropologist Norman Tindale, to describe their territorial claims for country. Claims based on Tindales map tend to conflate linguistic groupings with territorial distribution of these groupings, and neglect the separate question of land ownership. This has meant that Tindales territorial-linguistic map of Australia was often presented as a de facto claim map of land-owning groups. Such a presentation is no longer viable. Claim research will now need to explore and describe the relationship claimants see between language groups and land ownership within the claim area. In areas and in contexts in which claimants have been removed from their traditional country, extant knowledge of group boundaries may be problematic. Similarly, claim boundaries may be a highly contentious question in terms of intra-indigenous land ownership and require a regional discussion of external boundaries between neighbouring groups. Further questions to explore are:
S.190B (3) identification of the native title group The requirement of this condition is that the application either (a) names each person in the native title claim group, or (b) describes them sufficiently clearly that it can be ascertained as to whether any particular person is in that group. The threshold here is how to verify objectively an individuals inclusion in a land-owning group. It is not yet completely clear what the objective criteria would be; or will the assessment be made simply at face value? It may also be that in complex claims (with the potential for overlapping claimants) a more rigorous threshold application will be applied.
What is meant by identification should be carefully considered. At one level, this condition seeks sufficient information to describe each claimant member of the group; at another level, it raises the question of how an individual is identified. One option for the anthropologist and claimants is to simply list each person. However, in anthropological terms, this will be problematic as it limits the extent of the group and may encourage a static view of the system of native title and how it operates across time, that is, how the principles of the system involve recruitment, reproduction and a level of inclusion. One precedent to consider is the situation in the Northern Territory, where, under the Aboriginal Land Rights (Northern Territory) Act 1976, the names of individual claimants are listed without necessarily compromising the communal focus of traditional land-owning rules or the fact that group membership changes naturally over time. In relation to the native title context, it is not yet apparent whether subsequent attempts to expand the membership of listed claimants will be treated as an amendment of the application and therefore subject to re-assessment under the registration test. Moreover, there can be a problem raised by naming. Should claimants be identified by an English name, skin name or nick name? Which most clearly identifies the individual? In the Northern Territory, the issue of claimant identity has been variously dealt with to satisfy the statutory and practice requirements of the Aboriginal Land Commissioner and the Aboriginal Land Rights (Northern Territory) Act 1976. In that situation, claimants have been described as patrilineal or as other groups whose descendants trace their rights from (an) apical ancestor(s). The Northern Territory Land Councils prepared individual genealogies for each group of claimants, including detailed kinship profiles of each claimant. But developing such databases has involved extensive field and archival research. JusticeToohey, the former Aboriginal Land Commissioner (1984), recognised that claimant lists had be able to be updated by land councils because people die and new members are born, and consequently lists are not static and should not be treated as fixed documents. Different possibilities exists to describe a claimant group for the purposes of the registration test, one of which is the groupings accepted in the Western Yalanji or Sunset Peoples agreement. Claimant groups must be inclusive of future members for obvious reasons (the death of members; group reproduction (including the birth of new members). But other social principles also operate such as incorporation through marriage and long-term residence; adoption; inclusion through conception sites and other specific mechanisms which ensure individual recruitment to a land-based group). Perhaps a legal form of wording for claimant groups could be informed by anthropology; in particular, a form of wording which is inclusive of the groups reproduction in accordance with its own traditions and customs. In the recent Federal Court native title agreement case of Western Yalanji or Sunset Peoples v Alan and Karen Pedersen & Ors, heard before Justice Drummond (28/10/1998), the native title holders were identified in terms of the Rosendale group, being descendants of Leo Rosental and Eric Rosental Snr; or The Fullerton-Brim group, being descendants of Annie Fullerton and Dinah Fullerton-Brim and so forth. In other words, the family name of each group was used as they also identified their apical ancestor. The actual descendants were not, it seems, required to be individually named. Groups are also variously defined (for example, cognatic descent or family groups, or language groups). The question is about the best and most appropriate way to describe a group, such that the members are easily identified to the Registrar, but which also reflects the system of laws and customs of group formation for the particular claimants in question. One strategy for the research process is to ask how people become members of a group, and also to ask what factors influence whether a person is a member of a group (for example, factors such as descent, marriage, residence, adoption, participation in group business, etc). As the amendments presently stand, adding new members to the group will require re-application of the registration test (as an amended application; and it may also require revisiting the matter of authorisation of the applicant). The only qualification of this point is that if a form of wording were used which enabled the group to retain their own identity over time such re-application and re-registration may not be necessary. If members of the claimant group recognise recruitment principles under traditional law and custom, it may be appropriate to describe the generalised group (for example, to include a statement about all the biological descendants of x (as the apical ancestor(s)) and xs adopted children) and to accompany this with explicit statements about the groups particular laws and customs of recruitment (such as contingent rights as compared with core rights, and how these are distinguished in their acquisition and operation). Again, one might look to the description of group and descent used and accepted in the Western Yalanji Sunset peoples native title agreement. However, this is a stand alone determination of the Federal Court and may have restricted application as a precedent. In part, the limitation may arise because these groups were self-regulatory and were not being defined for the purposes of the registration test. In another legal case to consider, Edwina Shaw & Anor v Charles Wolf & Ors (1998) Federal Court of Australia, a lower threshold than that currently proposed for registration was used. In this case, the claimant group form through a self-identification process, with specific identification of lines of descendants through the three family names provided. This process clearly involved self-regulation of membership in the group. However, even if precedents exist of a lower threshold on these points, it is not necessarily to the claimants advantage to provide a minimal position as apart from the Tribunal, other parties, notably opposing government parties, are likely to mount a challenge on such points. It might also be useful to include a statement of the social principles behind membership in the claimant group, and to refer to the laws and customs, which are widely accepted within the group as the basis of their underlying communal title. More specific information could be included, or at least, used to explore issues during research. What, for example, do claimants regard as their traditional laws and customs concerning ownership and use of traditional country? How is ownership expressed by small family groups or the wider group or both? How do these levels of group ownership inter-relate? Because the NNTT Registrar requires an identifiable and manageable process for dealing with membership in claimant groups, it would thus be counter-productive for an NTRB to limit descriptions of individuals to the degree it becomes impossible to verify an individuals inclusion. For example, there is no point in hiding the names of the key individual and his/her descendants and adoptees who comprise a group. The Registrar may consider a range of options for interpretation of individual identification since claim groups will describe their corporate land-related groupings according to their own traditional laws and customs. In some situations, for instance, clan groups may be the predominant land-owning groups of claimant parties; in other contexts, extended families will be the most appropriate form. The Registrar may also apply this provision as a prima facie test and thus not expect a detailed anthropological description. Another strategy might be to name all the representative members who are applicants (as heads of groups/families/clans) in conjunction, once again, with the customary principles of lawful group membership (descent; residence; adoption; conception; initiation; shared ritual and language). This would follow in part, the form accepted in the Western Yalanji agreement. Perhaps there is a point of distinction to be made from the Yalanji experience; that the basis of group composition and membership in claimant groups is more the appropriate focus of the registration test than is the individual listing and each claimant member.
S.190B (4) identification of the native title rights and interests The primary objective of this condition requires that the Registrar be able to identify the exact nature of the claimed native title rights and interests.
Descriptions of the rights and interests and other anthropological matter, such as details of traditional physical connection, should always be written in plain English as the registrar will not be operating from a position of specialist knowledge or familiarity with anthropological terms and concepts. However, for many anthropologists, this issue is one of whether rights and interests are reducible to a bundle of rights and whether we should not, instead, try to describe the system or set of principles by which rights and interests operate and devolve to certain categories of people. However, in regard to (s.190B(4)) it may be sufficient, for the needs of the registration test, to concentrate on describing the rights and interests in terms of use, occupation, possession and enjoyment, and to exercise the anthropologists mind further in relation to the condition of s.190B(5) calling for the factual basis on which the claimed rights and interests are asserted. On the other hand, there is a further argument to consider; namely, that if rights are not comprehensively identified, and are not registered, they cannot be the subject of negotiation. Yet if the rights and interests are not comprehensively described the first time (i.e. in the application for registration compliance), claimants cannot later re-apply for registration in order to get them (unless they amend their original application to the Federal Court. Although the registration test may not need further details, the investigating anthropologist may wish to explore with claimants how rights and interests are transmitted, eg. how rights to use and occupy land operate under their specific laws and customs and who holds these rights (at what corporate level?; the family, the group, an association of particular individuals from the group?)
S.190B (5) factual basis for claimed native title rights and interests This condition raises the question of the claimant groups association to country, their continuity in observance and acknowledgment of traditional laws and customs, and the claimants contemporary practice of these laws and customs. Blanket assertions of continuity and association will be inadequate, since it seems that some evidence of continuity and practice will be necessary. However, the Registrars threshold test may not be especially onerous if it is applied as a prima facie test. But where groups have been displaced over several generations from ancestral country, they will need to provide more than a statement of an historical connection to country through an assertion of native title rights and interests. An emphasis on continuity and active practice will be expected in order to establish a prima facie case. Moreover, only those rights and interests, which have a prima facie basis, will be included in the register and will be incorporated for the purposes of the RTN.
Anthropologists should be encouraged to document and provide factual examples of activities undertaken in accordance with traditional laws and customs operating in respect of the claim area. They should be able to say what evidence exists that these rights and interests have a basis in traditional law and custom. The assertions of fact could include a range of practices such as visits to country; camping on country, the education of children about country and special places in terms of content and place, the education and observance (through age and gender) of cultural prohibitions on plant or animal foods, the location of special places (for example, ritual, burial, historical, story sites) and appropriate behaviour in relation to these sites; knowledge of stories and other symbolic forms associated with particular places, collection of bush tucker and medicines, birthing/burial on country, rites of passage and so forth. Groups with members who were largely displaced from ancestral country will need to carefully frame their evidence of continuity and contemporary practice and they should not claim rights and interests, which cannot be substantiated. If laws and customs in relation to land and waters have changed over time, the anthropologist should explore what these changes are.
To begin with, this part of the test will require evidence which builds on the demands of s.190B(5), namely, continuity of association, the existence and viability of traditional laws and customs, and their continuing role in the lives and activities of the claimant group. Claimants should expect that the Tribunal will consider each native title right and interest as it is described, and subject it to a prima facie or on the face of it test. An application can still pass this test even if not all of the claimed rights and interests pass the prima facie test. (However, see above for the implications of rights not passed at registration). The Registrar will be looking for supporting evidence of the existence and continuity of each right and interest. This means it will not do to make blanket and unsupported assertions such as we hold ceremonies. Brief documentation of what ceremonies, when they are held, where on the claim area and who the participants are, might be of assistance for establishing the prima facie case and to satisfy the Registrar. The correlative question may also be asked as to when such ceremonies were actually held and the nature of their relationship to law and custom. Consequently, a statement pre-empting such a question might be a useful strategy.
A high anthropological threshold may not be necessary for assertions of fact and qualifying in this aspect of the test. It is more likely that the Registrar will examine this matter from a position which does not require specialist knowledge and from which he/she will not be seeking to test the information. However, what is the definition of prima facie? According to the Concise Oxford dictionary, prima facie means "(arising) at first sight; (based) on the first impression" and in the Macquarie dictionary, one meaning of prima facie is given as "before investigation". This suggests that the Registrar will not delve into the assertions, other than to evaluate their content at first sight or according to a first impression. From this perspective, to satisfy such a relatively low threshold would appear to be easy. But the first impression claimants would want to give the Registrar is that the rights and interests asserted have a substantive basis in observance and continuity. So a prosaic statement of the activities associated with the native title right and interest might be helpful. A three-pronged approach could be useful to:
Again, anthropologists may need to carefully consider what differences might be recognised between a fact and an assertion when providing evidence. The requirement for the Registrar to be satisfied is a statutory benchmark; the Registrar is not required to be convinced. However, what is important is that the Registrar be satisfied that a convincing and substantive case appears to exist. This means that applications can no longer include rights and interests for which there is neither an active nor demonstrable basis. Thus, claimants should expect to be able to provide, to the anthropologist initially, the evidence to support claims to particular rights and interests. If claimants state, for example, that a native title right and interest is the holding of initiation ceremonies on claimed land, then they will need to provide some kind of proof to support this; it may not be accepted if such ceremonies are only planned for the future, but are not, and have not, been staged for 80 years or more. If the Registrar is not satisfied that a factual basis exists with respect to a particular right or interest, then that particular right or interest will be struck out as an aspect of the RTN, and as noted earlier, this may flow on negatively to the mediation and compensation context. With all native title rights and interests, the anthropologist should develop on-going documentation of expressions of continuity of association, the active observation of laws and customs, and specific examples of the associated actions and behaviours. Of course, in some sense such evidence is a case of "putting the cart before the horse". The principles underlying the laws and customs of a particular group may need to be identified so that their expression in practice can be described (see Rigsby 1996 on the meaning of law and custom in anthropological and legal terms). However, it is also possible that the emphasis on what is required for this facet of the test is the exercise of rights/interests, rather than establishing ownership through articulation of the principles behind it. Another source of evidence to consider is reference to published ethnographic literature in the area and documented regional practices; however, it will also require judgement as to what sources should be relied upon and included for a prima facie test. Change in the expressions of association and continuity in the practice of traditional laws and customs in respect to claimed country can legitimately be incorporated in an application. This means thinking beyond traditional use rights and incorporating contemporary cultural practices too, as legitimate expressions of continuity with principles established in the past. Language teaching at the local primary school, cultural camps for youth in claimed country, land management strategies practiced by the group, ranger training programs, the practice of traditional arts and crafts, the collection of plant materials for artistic purposes, action taken to protect sites/artefacts and to assert involvement in land-management and decision-making can be cited. Similarly, efforts to educate the wider public of the cultural and social history of the claimant group (such as through publications in community histories or in educational talks to local/regional schools), compilations of language words, place names and oral literature for the claimants country, language revival programs, cultural displays and production of cultural materials (songs, dance, art, theatre) and so on, could also be included. Social practices could also be included, such as attendance at funerals, mourning rituals and behaviour (prohibition of using the deceaseds name; seclusion of the widow(er)) which are observed and relate to the country of the deceased (for instance, closing access to country of the deceased for a specific period), observances related to pregnancy and child birth, preferred cultural choices in paid work which reflect the desire to work on ones own country (e.g. stockworker, timber getter, ranger, outstation activities) or the choices made in community development employment projects (CDEP) associated with the claim country (planting bush tucker, care and maintenance of rock art or other archaeological sites and their documentation), collection of life histories and oral history of times spent in ancestral country, education and reproduction of kinship knowledge and who is family for places, claimants family history research; and the collection of materials by the claimants about the groups cultural history and traditional laws, customs, and artefacts. These are all starting points for further investigation. These expressions and activities all proceed from an understanding of a groups lawful exercise of their rights and interests in regard to a particular area of land, and their social behaviour and cultural attitudes in relation to land over which they are expected, both by themselves and by their indigenous neighbours, to exercise responsibility for. However, anthropologists preparing applications may need to evaluate whether or not these provide evidence of the existence of a system of underlying principles of native title or perhaps simply focus on the evidence for the exercise of these rights and interests.
S.190B(7) traditional physical connection This test requires that the Registrar be satisfied that at least one member of the claimant group currently has, or previously had, a traditional physical connection with any part of the lands and waters in the claim application, or would have had such a connection if they had not been prevented from doing so (as in the locked gate syndrome).
From the outset, anthropologists will want to know what is meant by traditional and physical and how the Tribunal will interpret these words. Further, what does a traditional physical connection mean and what relationship, if any, would this concept have with an historical connection? In establishing this connection, only one member of the claimant group must be specified. On the other hand, where possible, it may be important to establish this condition in relation to the upper generations of the group so that the implications of the reproduction of the connection can be established and shown as on-going. A traditional physical connection of the parent generation may, at the very least, be seen as necessary. It is very important that where members of the claimant group have been denied access to their country, that this is documented and described. In its popular or conventional sense, traditional means "handed down from a previous generation. It would be good to include this and to say that evidence for such cross-generational transmission is very desirable. Thus, the term traditional might be explicated in terms of what is required by the traditional laws and customs of the group in relation to action on the country; for example, in caring for country; in maintaining sites; and in maintaining the social, physical and spiritual connection to country in terms of ownership. But anthropologists should be alert to the fact that while a traditional physical connection is necessary, that this does not simply mean a physical, activity-based connection. In fact, a physical connection may be interpreted from two perspectives. At one level, a physical connection can be read as activity-based where people are physically interacting with the country (such as in camping; hunting; burning off; collecting plants for craft, medicine, or seasonal foods). On another level, a physical connection can be spiritually-based, such as where peoples spirits are sung into sites, or where people identify the site in their country where a foetus is quickened by a spirit, or where individuals carry birthmarks related to a Dreaming, or where living group members are seen as temporary embodiments of enduring spirits and their relationships to country (Sutton forthcoming). Sutton explains that among the Wik peoples, land-based corporate identity also permeates other dimensions of life. One repeated ones patrilineal forebears by having the same names, totems, ceremonial identity, language affiliation and estate as they did, and even on occasion people would claim the same personality traits, body build, skin colour and hair type as such forebears from the same estate, at times linking these traits with the main totemic being present in the estate, and emphasising the repetition of ancestral essence in ones living body and appearance (Sutton, forthcoming). At present, the level of information needed to satisfy the Registrar is unclear; would it be sufficient, for example, for the application to give the name(s) of the person(s) who have maintained such a connection? Or is evidence of the nature of their connection also important? Evidence (such as a life history) for the person with the traditional physical connection might be useful to include. It seems likely that, if there is no evidence produced of physical connection, which is activity based, a claim will not meet this condition for registration; whether or not evidence is adduced of a spiritual connection. It may also transpire that the traditional physical connection of the person so named is couched in terms of generic rights and interests (enjoyment, use, possess and occupy) to the land, or parts of the land, under claim. For example, a statement to the effect that Joe Bloggs enjoys the right to hunt and fish on Red River and its tributaries in the southern part of the claim area and exercised this right, in accordance with his native title rights, during his working life as a stockman in that part of the claim area. It is not expected that claimants will need to satisfy a question on the frequency with which a traditional physical connection to the claim country (or parts of it) is exercised. Nor is it anticipated that the Registrar will have specialist knowledge when evaluating threshold questions, nor will the Registrar seek such knowledge. Consequently, it will not be necessary to provide extensive anthropological evidence. Nevertheless, when dealing with this section of the registration test, the information provided must be described mindful of the future act process or arbitration where native title rights and interests need protection. In southeastern Australia, the literature describing the traditional physical connection and association with country varies, even for the same areas of country. This, in part, arises from the ways in which country has been conceptualised both by claimants and by others, for example, categories based on linguistic alliances, clan as land-owning groups, and administrative divisions based on traditional cultural matters such as cultural heritage protection.
S.190B(8)-compliance with s.61A This section deals with ensuring that the claim is not made over an area, which is unclaimable according to the Amendment Act. Three categories of land are mentioned in this regard,
Compliance with this aspect of the registration test necessitates careful legal background preparation of the claim with respect to the areas of land and the tenure of the land. Tenure searches and identification of schedules under which the claim land is classified should be scrutinised to avoid unpleasant surprises for claimants. Previous exclusive possession acts also cancel the possibility of a native title claim. However, conditions also exist in which prior extinguishment of native title can be disregarded (see s.s. 47, 47A 47B). Claimant applications will need to state whether and where they are claiming exclusive possession of land and what other relevant acts have occurred in the claim area. The applicants cannot claim exclusive possession if such an act has already occurred on the land in question.
S.190B(9)(a) ownership of minerals, petroleum or gas owned by the Crown. This provision is similar to that above; the applicant cannot claim ownership of these resources, which are owned by the Crown, and the Registrar should not be aware of the application attempting to do this.
S.190B(9)(b) exclusive possession of an offshore place A claim cannot be made for exclusive possession of the whole or part of an offshore place. This is primarily a matter for legal preparation of the claim and the importance of ensuring due attention is paid to tenure searches and a knowledge of the Amendment Act in terms of the schedules of land specified in the Amendment Act which disallow native title claims and/or extinguish native title rights and interests.
S.190B(9)(c) other extinguished native title rights and interests Once again, these provisions should be read in conjunction with those of similar content listed above.
Conditions on procedural matters S.190C(2) information required by s.s.61 and s.s.62. The matters covered deal with the administrative details of the applications such as the inclusion of an affidavit and other prescribed documents (maps) and details specified in s.s.190C. In particular, the name and address for service of the application should appear and so too should the appropriate description of the claimant group and how this appears on the application (ie. either as a list of names or by some principle of grouping). The affidavit will require special preparation and attention to the detail required. The affidavit can be the document which precipitates certain merit conditions; namely:
The application must also carry prescribed information such as:
S.190C(3) common claimants in overlapping claims
In brief, no person can appear as a claimant in more than one registered claim over the same area of land. The Registrar is likely to examine overlaps in terms of both external and internal boundaries for evidence of common land/waters claimed by two claimant groups. Decisions about claims with overlaps will also be effectively made in part, according to the date of lodgement of each application on the NNTT register and processes, which trigger their engagement with the registration test. Only one determination is possible for an area. Two claim applications cannot be registered for the same area, if the claimants are the same. In the case of different claimant groups with overlapping and competing claims, the claims will stand under the Amendments but they will come up for registration in order of lodgement of the application. The Registrar must consider all applications made on or after the 27 June 1996, but before the commencement of the Native Title Amendment Act 1998, as soon as practicable. The exception to this would be an issue of a fresh s.29 notice, in which case the Registrar would be required to deal with the application concerned within four months from the notification.
No claimant can appear in more than one registered claim for the same country. The requirement to sufficiently describe the members of the claimants group such that the NNTT Registrar can identify them will be the first step in checking for compliance. In addition, an application cannot be lodged over an area where a registered claim application has already been accepted. Where applications have been presented initially as a nation claim, followed by an application from a smaller, clan/family-based claim over part of the wider, but common claim area, these applications will need revisiting and possibly revising. Nation claims may no longer be viable, especially if smaller groups begin a patchwork of claims under the umbrella of the larger claim, or if the same persons are claiming overlapping country, or if one of the claims is already registered. The import of the overlapping claim provisions seems to be directed at overlaps of common claimants, where individuals are perhaps seen as trying to have two bites of the cherry. The registration condition does not apply to different competing and overlapping claimant groups for the same country. This kind of situation is most likely to arise where Aboriginal people have been displaced or removed from their ancestral country over several generations with the result that different groups are now lodging competing claims in the process of establishing their credentials for ownership. A similar situation could arise with succession.
S.190C(4)(a) and s.190C(4)(b) certification and authorisation This provision requires that the NNTT Registrar be satisfied that one of either of the circumstances below has been met:
Finally, a note to expand on the authorisation process (s.251B); authorisation can be taken to mean a traditional decision-making process which reflects the traditional laws and customs of the claimant group or compensation claim group. Authorisation also means that in cases where no traditional decision-making process operates, all members of the claimant group have agreed upon a consensual process of decision-making and that this group has also authorised the person(s) to make the application and deal with the matters involved on their behalf. It is important to understand that authorisation involves two processes:
The anthropologist must carefully consider what is meant by authorised and certified. These processes are distinct. The authorising process is claimant-based, while the certification process asks the NTRB to sign off that the claim application has been handled with due process and all reasonable effort.
In situations where no traditional decision-making process is thought to be operating, the question of a consensual agreement to a decision-making process, which includes authorisation of a representative of the claimant group, will impose logistical difficulties, for a start. The history of representative status in contemporary indigenous organisations confirms that all such arrangements involve inherent tensions and the difficulties, in many instances, of maintaining an agreed-to position and the representative status of a chosen or specified person. The experience of the Northern Territory Land Councils demonstrates the difficulties of such a process; such authorising processes require a constant round of meetings, while achieving outcomes involves slow, cumbersome and time-consuming procedures. Ideally, the NTRB should verify such a process and sign off on it, but as this is not a mandatory requirement, the claimant group can authorise it themselves (see s.190C(4)(b)). A number of other key issues will need to be considered, not least of which is how to manage such a requirement; for instance, once group composition changes, will previous consensual decisions about the representative applicant stand? To manage this dynamic, the NTRB will need to accurately document the decision-making process, how it was reached, and details of the basis on which a representative was chosen and empowered by the claimant group, etc. The difficulties of sustaining group consent to authorisations over time is politically fraught, as the Northern Land Council is currently aware in relation to decisions by traditional owners over development of the Jabiluka uranium mine. To responsibly discharge their obligations, the NTRB would be advised to preserve and document a paper trail of the process by which authorisation is ceded to the applicant in terms of reaching decisions, the principles of eligibility involved in selecting the representative applicant, and how the groups endorsement is verifiable. The NTRB should also explore what might qualify as reasonable efforts in the discharge of this statutory obligation. A standardised approach to consensual agreements about decision-making and presentation may be one possibility. However, the evidence of procedure must be shown, and may not need to be anthropological in the description of the authorisation process. Anthropologists would be well advised to maintain careful records of what transpires in the group when an individual is authorised to act on behalf of others. Other options for authorisation might be considered; for example, using a prescribed body corporate as an authorising agent. The certification and authorisation process is not, of course, a matter to leave to the end of the application process. From the beginning of the development of a claim application, the NTRB should dedicate resources to exploring who the representative applicant will be, whether they are in fact representative and endorsed to engage in transactions on behalf of the wider claimant group. The Northern Territory Land Councils have had previous experience of similar requirements and this might be a useful reference for NTRBs facing these matters. Presumably NTRBs will need to develop transparent procedures for the certification process so that claimants are aware of what actions and processes must occur. Existing claim applications, where a traditional system of decision-making does not operate, will need to provide an affidavit endorsing the current applicant (s).
A general consideration for Native Title Representative Bodies (NTRBs) when approaching the amended claims process is that, simultaneous with the specific impact of the amendments on claims, NTRBs are also required to perform new functions in the discharge of their responsibilities to claimants (see s. 202 of the amended Act), and to establish evidence of best practice in the discharge of their service and representative functions. These benchmarks for performance will be important aspects of their bid for re-recognition of their current NTRB status.
The NTRB Certification process Under the amended legislation, an important additional statutory function of all NTRBs is certification of a native title claim application. This responsibility is broken into particular parts and encompasses the following matters:
Minimising applications for the same area With regard to overlapping claims,
The responsibility to minimise claim applications under s.202(6)a and s.202(6)b will involve negotiated agreements between claimant parties facilitated by the NTRB (s.68 requires that the Federal Court must not proceed with an application where an approved native title determination has already been made for a particular area - with certain exceptions. Para 13(1)(a) says that where a determination already exists over an area, a second determination cannot be made).
Statement of certification, reasons and actions
Certification procedures also apply with respect to NTRB involvement with Indigenous Land Use Agreements (ILUAs). There are a number of sections in the amended Act relating to this process, particularly, in terms of requirements for the signing off process. Smith (1998) provides a useful overview of ILUAs. Other additional statutory requirements are expected of NTRBs under the amended Act. These include the manner in which business and service delivery is conducted. Details of these obligations are not explicitly discussed here; since the primary focus of this manual is confined to the NTRB and claimant response (since not all claimants are lodging applications through an NTRB) to the registration provisions and the anthropological contribution to such a response.
Rigsby, B. 1996. Law and custom as anthropological and legal terms in J. Finlayson and A. Jackson-Nakano (eds) Heritage and Native Title: Anthropological and legal perspectives, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra. Smith, D. 1998. Indigenous land use agreements: the opportunities, challenges and policy implications of the amended Native Title Act, Discussion Paper No. 163, Centre for Aboriginal Economic Policy Research, The Australian National University. Sutton, P. 1984-5. Opinion formation and the problem of group consent Anthropological Forum, 5 (3): pp 382-384. Sutton, P. 1995. Atomism versus collectivism: The problem of group definition in native title cases, in J. Fingleton and J. Finlayson (eds) Anthropology in the Native Title Era, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra. Sutton, P. (forthcoming). The system as it was straining to become?- fluidity, stability and Aboriginal country groups in H. Bek, J. Finlayson and B. Rigsby (eds) (title to be announced)CAEPR Monograph No. 13, Centre for Aboriginal Economic Policy Research, The Australian National University, Canberra. Toohey, J. 1984. Seven Years On. Report by Mr Justice Toohey to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters, Australian Government Publishing Service, Canberra. |
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