The native title system could be used more effectively if participants changed some of their practices and adopted an interest-based approach to negotiations, said Tribunal President Graeme Neate.

“The Native Title Act 1993 has been amended several times and there is always room for more improvement,” he said.

Mr Neate’s comments follow former Social Justice Commissioner Tom Calma’s release of the Australian Human Rights Commission’s Native Title Report 2009. The report includes 27 recommendations to improve the native title system.

“Practical suggestions for improvements to the native title system are always welcome," Mr Neate said.

"I note that while Mr Calma recommended a number of further amendments to the Act, he also recommended several changes to practices and attitudes that parties to native title claims can adopt, without legislative amendments.”

The Native Title Report 2009 includes recommendations for changes that can be made now, including the following:

• Removal of parties if their interests will not be affected
• Improving access to tenure information
• Promoting broader and more flexible native title settlement packages
• Parties’ attitudes
• Building relationships
• Interest-based approach to negotiation
• Anthropologists and experts – initiatives

See the link at the top right of this page to read the full report, including the chapters referred to below.

Removal of parties if their interests will not be affected
Refer to Chapter 3.6c of the report.
After a native title claim has been lodged with the Federal Court, the Court sends the application to the Tribunal to apply the registration test and then notify potential parties and the public about the claim.

This gives people with interests in the claimed area the opportunity to apply to the Federal Court to become parties to the claim and be involved in negotiations about the native title rights.

As a claim progresses it sometimes becomes clear that certain parties’ interests will no longer be affected, for example if the claim is amended to reduce the area.

The Native Title Act allows for the removal of those parties.  The process would become more efficient and effective if this power was used more frequently and consistently.

Improving access to tenure information
Refer to Chapter 3.5 of the report.
Mr Calma states that: “Improving access to land tenure information could significantly reduce the time and costs associated with claims processes. The progress of native title claims depends greatly on the time it takes states and territories to release land tenure information and assess it”.

The Tribunal agrees that the provision of relevant tenure information at the earliest possible stage in the process would save the parties much time and could enable the faster progression of matters. If parties are clear on where native title has been extinguished and what types of tenure the claim covers, party lists can be streamlined and negotiations can proceed more quickly.

Promoting broader and more flexible native title settlement packages
Refer to Chapter 3.7 of the report.
Parties to native title claims around Australia have been successfully reaching broader outcomes involving determinations of native title and indigenous land use agreements, which can be achieved under the Native Title Act.  

Sometimes parties negotiate outcomes which do not include the recognition of native title.  These alternative settlements are particularly valuable in areas where it is difficult for groups to prove their native title rights due to historical circumstances such as dispossession.

The Victorian Government announced in June 2009 that it had developed an alternative framework that would allow traditional owners to negotiate directly with the state government to settle native title claims, rather than go through the courts.

In December 2009 the Western Australian Government and the Noongar People’s representative body – the South West Aboriginal Land and Sea Council – committed to negotiating a settlement to resolve the Noongar native title claims in the state’s south-west region.

While it remains to be seen what agreements can be negotiated under these schemes, the intention is to simplify and speed up the process for dealing with some native title claims. This is line with the objectives of the Federal Government and supported by the Tribunal.

Parties’ attitudes
Refer to Chapter 2.3 of the report.
Mr Calma highlights Federal Attorney-General Robert McClelland’s statement: “Real change in native title will only come through adjusting the behaviour and attitudes of all parties in the native title system and how they engage with the opportunities native title can present”.

If parties approach negotiations with open minds and a willingness to reach an agreed outcome, matters can proceed more swiftly. Ultimately, the parties shape the outcome that they negotiate. Experience has shown that through agreement-making all parties can leave the negotiation table satisfied.

If agreement can’t be reached and the matter goes to court, there will be an imposed outcome and it might be harder for the parties to work together in the future.

To progress claims it is important that parties approach one another with mutual respect and the capacity to understand one another’s perspectives. 

Building relationships
Refer to Chapter 2.3b of the report.
When parties engage in negotiations and work through issues, an understanding and appreciation of one another’s perspectives emerges. The foundation for enduring relationships is established.

Once agreement is made the parties, in most cases, have a productive and solid relationship that supports the success and longevity of the agreement.

Mr Calma highlights the sentiments expressed by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, who emphasised the importance of partnerships in implementing the rights of Indigenous peoples.

Interest-based approach to mediation
Refer to Chapter 2.3d of the report.
Mr Calma advocates an interest-based approach to negotiations and points out that the Government has clearly expressed its preference for an interest-based approach to negotiating broader agreements.

The Tribunal’s members take an interest-based or 'problem solving' approach to mediation, which leads to the development of productive relationships and broader, agreed outcomes.

Anthropologists and experts – initiatives
Refer to Chapter 3.8 of the report.
Initiatives to improve the quality and quantity of anthropologists working in the field are both necessary and welcome.

One of factors that holds up the progress of many native title claims is the time taken to secure an anthropologist to prepare the connection reports that are so important to the process.

Conclusion
Changes can be made to current practices to speed up the progress of native title claims. If parties are willing to make these changes and work collaboratively within the systems and frameworks in place, they will be better equipped to tackle the many challenges ahead to resolve native title issues.