Uniting the Voices Decision making to negotiate for Native Title in South Australia Judith Morrison Independent review of Aboriginal Legal Rights Movement Native Title Unit’s facilitation of decision making by South Australian Native Title Management Committees July-October 2000 Commissioned by Aboriginal Legal Rights Movement Native Title Unit 2001 This report may be cited as: Morrison, Judith. 2001. Uniting the Voices: Independent Review of Aboriginal Legal Rights Movement Native Title Unit’s Facilitation of Decision Making by South Australian Native Title Management Committees, July-October 2000. Native Title Unit, Aboriginal Legal Rights Movement, Adelaide. Project Manager for ALRM NTU: Mr Parry Agius Project Supervisor for ALRM NTU: Dr Jocelyn Davies Report submitted to NTU: February 2001 Publication date: May 2001 Copies of this report may be obtained from: Mr Parry Agius, Executive Officer Aboriginal Legal Rights Movement Native Title Unit Level 4, 345 King William Street Adelaide, 5000 ISBN: 0-646-41693-6 © Aboriginal Legal Rights Movement, 2001 The views expressed in this report are not necessarily those of the Aboriginal Legal Rights Movement or its Native Title Unit. ii “‘My expectation of a good Australia is when White people would be proud to speak an Aboriginal language, when they realise that Aboriginal culture and all that goes with it, philosophy, art, language, morality, kinship is all part of their heritage. And that’s the most unbelievable thing of all, that it’s all there waiting for us all. White people can inherit 40,000 or 60,000 years of culture, and all they have to do is reach out and ask for it.” KUMANTJAYI PERKINS iii Uniting the Voices: ACKNOWLEDGMENTS Many people contributed to the decision making process which is the subject of this report and, either directly or indirectly, to the development of the report itself. Particular acknowledgments are due to: Native Title Management Committee members and their families; The Board of the Aboriginal Legal Rights Movement Inc; The Hon Trevor Griffin, SA Attorney-General, and his staff; Dale Perkins, President of the SA Farmers Federation; Bob Goering, in his former role as Chief Executive Officer of the SA Chamber of Mines and Energy; Andrew Secker and members of the SA Government Indigenous Land Use Agreement Team; Chris Uren, in his former role as Acting Manager of the National Native Title Tribunal Adelaide Registry, and other Tribunal staff; George McKenzie of Finlaysons as legal adviser to SA Chamber of Mines and Energy; Mike Gaden, in his former role as Chair of the SA Farmers Federation Indigenous Issues Committee and Natural Resources Committee delegate; Parry Agius and the staff of the Native Title Unit and of the Unit’s Statewide Native Title Negotiations Secretariat; Dr Richie Howitt of Macquarie University as Principal Consultant to NTU for the decision making process; Dr Jocelyn Davies of Adelaide University as consultant to NTU and Project Supervisor for this report; NTU Technical Advisory Group members and other consultants to NTU. National Native Title Tribunal and National Parks and Wildlife SA for Figure 1. iv Uniting the Voices: Executive Summary EXECUTIVE SUMMARY The purpose of this Report is to present an consultations has been to allow the NTMCs independent review of a process instituted by to make an informed decision about entering the Native Title Unit (NTU) of Aboriginal into statewide native title negotiations, and as Legal Rights Movement (ALRM). The Report a means to achieve this goal, to form a reviews the NTU’s preparations to consult ‘united voice’ body to represent all their with native title claimants in South Australia interests in the prospective negotiations. about their prospective participation in statewide negotiations, focusing on the The key to the SA Government developing period from July to October 2000. During interest and support for negotiated this time, ALRM was in receipt of funding approaches to native title rights and interests from the SA Attorney-General’s Department was the prospect that any agreements to support the prospective involvement of negotiated would carry authority and native title claimants in a negotiating process. certainty. NTU has been able to offer assurances of certainty and Aboriginal The Report sets out a chronology of events community authority in negotiated leading up to and during this period, and agreements, and the prospect that it could do incorporates evaluations of the events within so in a unified approach to negotiations the period based on review of available across the state. This authority has its sources, including archive material, origins in the certification process for each comments made by Native Title Management native title claim application, which ALRM’s Committee (NTMC) members, and interviews NTU is responsible for implementing as part with NTU staff and consultants. Using these of its functions as a Native Title data, the Report independently assesses Representative Body (NTRB) under the whether the process undertaken by NTU Native Title Act 1993 (Cwth), as amended in provided the NTMCs with adequate 1998. The certification process can give opportunities to come together and consider assurance that each claim application has the proposal to participate in statewide the support of the members of the native title negotiations relating to their present and group and that the membership of the group future relationships, as Aboriginal people, is clearly identified. The Indigenous Land with others in the state of South Australia. Use Agreement (ILUA) mechanisms of the The Report incorporates perspectives and Native Title Act further promote certainty by recommendations for matters that should establishing the binding legal status of also be given attention in planning for later ILUAs. stages, depending on the progress of the statewide negotiations. Native Title Management Committees (NTMCs) are a critical component in an ALRM is the Native Title Representative organisational structure which provides Body (NTRB) in South Australia, a function assurance of Aboriginal community authority that is undertaken through its Native Title in statewide negotiations. They are the Unit (NTU). Between July and October 2000, groups within each claimant community that the NTU used funding from the SA Attorney- have been established to manage the General’s Department to consult with all interface between their native title claim Native Title Management Committees issues and the concerns of other (NTMCs) in SA. The purpose of the stakeholders and to speak on behalf of the v Uniting the Voices: Executive Summary entire claimant group about the management of the claim. Their authority stems from their NTU made it clear to proponents of the establishment, through support and negotiation proposal that its own function is facilitation provided by the NTU, during to assist claimants progress their individual meetings held as part of the certification native title claims and not to make decisions process for each native title claim application. on claimants’ behalf. This is because, in Each NTMC is appointed and endorsed by accordance with Aboriginal customary law, their entire claim group to act as delegates only Aboriginal people themselves, whose on their behalf. Their establishment is native title rights are unique within each intended to promote confidence that when claim, can talk authoritatively and make other parties talk with and negotiate with a decisions about their traditional country. As NTMC, they are dealing with authorised an Aboriginal organisation, NTU has representatives of the entire claim group. established policies in keeping with this principle of customary law. Even though the In early October 2000, most NTMCs decided Native Title Act provides that NTU may make in principle to be part of the statewide certain decisions on behalf of claimants in negotiations process and to further develop a relation to native title as part of its functions structure and operational protocols for their as an appointed Native Title Representative united voice body. With this decision, Body, NTU needs to comply with the NTMCs have shown their willingness to principles of Aboriginal customary law if it is engage with the SA government, the South to be effective in representing the native title Australian Farmers Federation (SAFF), the interests of claimants. Thus NTU requires South Australian Chamber of Mines and that claimants themselves make all decisions Energy (SACOME) and ALRM’s NTU, who about their native title rights, including are already represented at ‘Main Table’ decisions about negotiating a statewide meetings concerned with the development of ILUA. statewide negotiations. ALRM was allocated some initial funding Key features of the consultation process from the SA Attorney-General’s Department, The in-principle decision of NTMCs to and this allowed the appointment of a participate in statewide negotiations relating Technical Advisory Group (TAG) consisting to native title had an eighteen month of consultants with diverse skills, who could preparatory period. In May 1999, the SA advise NTU about the statewide negotiations Government approached ALRM with a proposal. It also allowed initial consultations tentative proposal that native title claimants between NTU and NTMCs. consider negotiating a statewide Indigenous Land Use Agreement (ILUA). Informal talks NTU convened two statewide initial meetings took place between the SA Government, of NTMCs about the proposal in