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Introduction to North J’s comments by David Ritter
On 8 September 2004, Justice Tony North QC formalised a consent determination in favour of the Karajarri People from the south-western Kimberley in Western Australia (‘WA’), marking the resolution of another of the longstanding native title claims that have all but covered Australia since the passage of the Native Title Act 1993 (Cth) (‘NTA’). It has become customary for a special sitting of the Court to be convened when a non-litigated outcome has been achieved, usually somewhere within the determination area. On the occasion of a ceremonial sitting of the Court to formally resolve a native title claim, it is the convention that the presiding Judge will congratulate the parties and may perhaps provide curial observations in the nature of a postscript to proceedings.
In the final stages of the mediation of the Karajarri claim, his Honour North J became aware of limitations on the substantive capacity of the prescribed body corporate (‘PBC’) established to hold the native title of the traditional owners to perform the required statutory functions. The NTA, of course, requires that successful applicants must establish PBCs to hold their newly acknowledged property. The final irony of a process that is often and glibly assumed to be furthering ‘self-determination’ is that those who are found to have extant native title are then compelled to submit the administration of their newly-acknowledged property rights to a compulsory form of ownership structure. It might have been assumed that a necessary concomitant to the mandatory nature of PBCs would be an adequate level of support for their administration by government. However, the current position is that there is no program or policy, state or federal, to provide targeted and ongoing assistance to PBCs.
1. On 12 February 2002 the Court sat here in Bidyadanga to hear an application under s 87 of Native Title Act 1993 (Cth) (the Act) for consent orders relating to part of the area subject to the claim for determination of native title by the Karajarri people. The Court made the orders sought. Those orders related to an area which was called Determination Area A, and comprised the Frazier Downs pastoral leases held by the Karajarri Traditional Lands Association, unallocated crown land and reserves for the use and benefit of Aboriginal people.
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4. Once the agreement was reached the parties advised the Court that they wished to apply for consent orders reflecting the agreement. The Court may make such orders under s 87 of the Act if satisfied that the orders are within the power of the Court and if it appears to the Court to be appropriate to make the orders. The parties were asked to file written submissions addressing these matters, which they have done. The purpose of the hearing today is to consider whether the orders sought by the parties should be made.
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9. One issue has caused me some concern. The proposed determination provides for the native title rights and interests to be held in trust by the Karajarri Traditional Lands Association (Aboriginal Corporation) which is a prescribed body corporate (PBC) for the purposes of s 56 of the Act. A PBC is required to perform functions specified by the Act and Regulations (s 57 and 58). For instance, Regulation 6 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 requires a PBC:
(a) to manage the native title rights and interests of the common law holders of those rights and interests;
(b) to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust;
(c) to invest or otherwise apply money held in trust as directed by the common law holders;
(d) to consult with the common law holders in accordance with regulation 8;
(e) to perform any other function relating to the native title rights and interests as directed by the common law holders.’
It seemed relevant to the question of the appropriateness of the agreement for the Court to know something about the capacity of the PBC to perform the required functions. Consequently, the parties were asked to provide written submissions to the Court on this issue. In response, the applicants filed a written submission which described the Karajarri Traditional Lands Association’s lack of resources and consequent inability to carry out its statutory functions. In part the submission stated:
‘The KTLA has no office, no telephone and no fax machine. As the Chairman has stated, “I may be the Chairman, but we can’t afford a chair.” The lack of basic equipment means that its capacity to hold meetings, respond to Future Act notices and otherwise carry out its functions in accordance with the Act and with the KTLA Rules is severely limited.’
10. Some have pointed to policy objections to the whole concept of PBCs. They have argued that it would be more appropriate to utilize the existing representative bodies for the purpose of administering land which is the subject of native title determinations. Whatever merit there is in that view is not reflected in the present statutory arrangement.
11. There is a good argument that the inability of a PBC to fulfil its statutory functions is a relevant factor in the Court’s consideration of whether an agreement providing for such a PBC is appropriate for the purposes of s 87. In the end, I accept the respondents’ arguments that, in this case, that consideration is not determinative because no party wishes the Court to refuse to make the orders on that ground. It can only be hoped that the goodwill which has led to the successful mediation of the application will be harnessed in an effort to ensure the proper functioning of the Karajarri Traditional Lands Association. It would be an absurd outcome if, after the expenditure of such large sums to reach a determination of native title, the proper utilisation of the land was hampered because of lack of a relatively small expenditure for the administration of the PBC.
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13. Before signing the orders it is appropriate to make some observations as to the significance of this event. Whilst the making of the orders is the end of a very long legal saga, it is the beginning of a new set of challenges for the Karajarri people in utilising the legal recognition which comes with the making of the determination.
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15. The people of Australia, through laws made by our elected representatives in parliament, have recognised that indigenous people have rights and interests in land. The law sets out the circumstances in which the rights of those people are recognised and gives the Federal Court the power to determine when those circumstances exist. This law does not grant land rights to Aboriginal people. It creates nothing new with respect to the land. It recognises long standing traditional rights and interests under Aboriginal law.
16. Today is the day of formal recognition under the laws of Australia by all the people of Australia of the ancient rights and interests of the Karajarri people in their land. It is a moment of celebration and joy for all Australians. This act of recognition is a foundation upon which reconciliation is being built. I am immensely proud that my signature on these orders will carry the message of the Australian people to the Karajarri people that justice is now being done.
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19. As this hearing concludes, I wish to express the hope that the events of today will be seen in due course as part of the tide of history which washed away the past injustices which, according to the evidence, were visited upon the Karajarri people.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2004/65.html