Ritter, David --- "Book Review - When History Meets the New Native Title Era at the Negotiating Table: A Case Study in Reconciling Land Use in Broome, Western Australia" [1997] AboriginalLawB 7; (1997) 3(88) Aboriginal Law Bulletin 16

• Book Review When History Meets The New Native Title Era At The Negotiating Table: A Case Study In Reconciling Land Use In Broome, Western Australia

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Book Review

When History Meets the New Native Title Era at the Negotiating Table:
A Case Study in Reconciling Land Use in Broome, Western Australia

by Sue Jackson

North Australia Research Unit, Australian National University, 1996.

58 pages. $12.00

Reviewed by David Ritter

The central role of the National Native Title Tribunal ('the NNTT') is to mediate individual resolutions to claimant applications for a determination of native title. This mediation process is fundamentally connected with the business of history, because the parties to negotiations are inevitably conditioned by their personal, familial, and cultural histories, and these histories raise issues that must be dealt with, if mediation is to progress. The National Native Title Tribunal then, is required to undertake a project that is, of its essence, historiographical in nature. A recent short publication that considers the issue of the interaction between historical understanding and native title is When History Meets the New Native Title Era at the Negotiating Table: a Case Study in Reconciling Land Use in Broome, Western Australia, by Sue Jackson. In this work Jackson evaluates the performance of the NNTT in its role as the impartial mediator of native title claims, in the context of the historical experience of Aboriginal people in the Shire of Broome in North Western Australia. Jackson's basic, and probably uncontroversial, proposition is that:

'An historical background is crucial to an understanding of the contemporary degree of disaffection in the Aboriginal community in Broome and, above all, important because it is the experience of past events and the grievances suffered which people bring to the negotiating table when pursuing native title claims. The recent history of the exclusion of Aboriginal people from plans and planning processes informs their assessment of their ability to influence today's decisions and to negotiate as equals. This history cannot be dismissed as a thing of the past' (ppl-2).

In order to support this proposition, just over half of the book is spent describing the history of land use in the Broome region. The story is all too familiar: by statute, regulation, economics, politics and administrative practices, the Aboriginal people of the Broome region have been systematically ignored, or intentionally deprived of rights, and disempowered by sources of white authority. The result, as set out by Jackson, is that:

'Aboriginal peoples' aspirations for land and sea rights have not been met in Broome: they directly own very little land within the township and have been largely ignored by land use and marine resource decisions, excepting very recent instances' (p4).

Jackson reveals how even though recent State and Shire governments may have adopted the rhetoric of consultation with Aboriginal people over land use, they have 'been unable or unwilling to even attempt to address' the fundamental causes 'of Aboriginal disenchantment and disempowerment' (p22).

It is against this historical background that Jackson considers one practical dimension of the new law of Mabo [No. 2] (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) and the Native Title Act 1993 (Cth) ('the NTA') - what she describes as 'the New Native Title Era'. The initial native title claim in Broome was the first to be lodged under the auspices of the NTA in Western Australia, and it was soon followed by a number of others, totalling eight in the Broome region at the time of the author's writing. Once a native title claim has met certain formal administrative requirements, the NNTT is compelled by s72 of the NTA to attempt to mediate the consensual resolution of the claim between the native title claimants and other parties with interests in the claimed area.

Jackson's basic position is to indict the NNTT for failing to make reasonable allowance for the effects of historical experience on Aboriginal people, in its management of the dynamics of the mediation process. She claims that the NNTT's mediation strategy is premised on the naive assumption that the NNTT 'can divorce itself from the history of power relations which continue to influence the contemporary political environment in which it operates' (p38), and further states that the NNTT is 'deluding itself if it believes it can remove itself from history and society so easily and painlessly (p38). Jackson argues that such delusions and assumptions manifest themselves in the NNTT taking an overly-simplistic approach to mediation. Commenting on the NNTT's Mediation Procedures, Jackson warns that mere 'shuttle diplomacy' is insufficient to redress the impacts of 'dispossession and colonisation' (p38). She argues that the interests-based model of mediation developed by the Harvard Mediation Project (and adopted by the NNTT) through its Mediation Procedures may be culturally inappropriate to negotiations involving Aboriginal people (See M Sauve, 'Mediation: Towards an Aboriginal Conceptualisation', Vol 3, 80 Aboriginal Law Bulletin 10).

Commentaries like Jackson's probably act as a necessary corrective to the NNTT's errors of approach. The NNTT itself formally welcomes criticism, and its Mediation Procedures begin with an acknowledgment that they are to be modified over time in light of feedback from parties to the mediation process. Thus, if the NNTT has not been sufficiently sensitive to the extent to which historical experience underpins all native title mediation then, as an institution, it will very much want to be informed of such failure. Perhaps Jackson might be rebuked for concentrating on the negative, but if that is her perception then it may well be shared by the Aboriginal actors in the process. Her book was written with the collaboration of the Kimberley Land Council and the Rubibi Land, Heritage and Development Working Group (set up by the Yawuru, Djugan and Goollarbooloo Aboriginal Groups in September 1994 as the umbrella group for a number of native title claims in Broome). Nevertheless, the very existence of the Rubibi Group is a ground-breaking event, as the establishment of a process-generated structure for integrating a number of Aboriginal groups and Aboriginal decision making systems with the requirements of the Commonwealth legal system.

In a broader sense, underlying Jackson's book (and indeed a fair chunk of the post-Mabo analysis in all its algal bloom proportions) is the basic question as to what extent the Mabo [No. 2] decision and the enactment of the NTA has marked a rupture or a continuity with past Aboriginal-white power relations; however, that question is too broad for both this review and for Jackson's discussion paper, although her work does very much raise the question.

Ultimately, the National Native Title Tribunal would be foolish not to heed criticisms such as those of Jackson. All parties bring their historical baggage to the mediation process, and a failure to make sufficient allowance for this in the conduct of the process will, without doubt, have a deleterious effect on the fruitfulness of those meditations and on the reconciliation project in general, in all its multiple micro-manifestations around the country. In this respect, the Tribunal must be relentlessly self critical: but self critical with hope. Federal legislative intervention permitting, the NNTT lives and learns.