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McLaughlin, Sean --- "Towards a Coherent Claim Strategy: Developing a Framework Agreement in the Northern Rivers Region of NSW" [1999] IndigLawB 44; (1999) 4(21) Indigenous Law Bulletin 18

Towards a Coherent Claim Strategy –
Developing a Framework Agreement in the Northern Rivers Region of NSW

by Sean McLaughlin

For some time now observers of the native title claim process have been frustrated and perplexed by the lack of progress in the resolution of claims.

There are some obvious explanations – inadequate resources is one and the uncertain fate of proposed amendments to the Native Title Act through 1997-98 didn’t help – however a major cause in my experience is the absence of clearly thought through and coherent claim strategies on the part of claimants and their legal advisers (including their representative bodies) and a lack of policy leadership from the primary respondent to claims, namely, the State.

The Northern Rivers Project

Mindful of this the National Native Title Tribunal commissioned a project which sought to do three things: (i) more actively engage with claimants and parties affected by the claims process to determine what technical problems were impeding resolution of claims; (ii) pursue a more focussed and pro-active approach to the management of claims to provide a more informed basis for judging which claims should proceed to mediation, and how to better assist the parties involved in the mediation process; and (iii) explore the potential for negotiations between claimants and the State directed to producing a framework agreement for the region.

The project, which was endorsed by the NSW Aboriginal Land Council (as the Native Title Act representative body for the area), commenced in April 1998 with a series of meetings with the various parties to assess progress, discuss strategies and to consider whether the parties’ understanding of and expectations from the claim process matched the likely reality of that process.

The Northern Rivers Region

The Northern Rivers region of NSW (an area roughly bounded by Grafton in the south, north along the Great Dividing Range to the Queensland border and down the coast) was chosen as a suitable region for implementing the project because of a number of desirable pre-existing conditions.

Notwithstanding the piecemeal nature and ad hoc lodgement of the claims process thus far, it was clear that there is overall coherence and general agreement within the region as to country affiliation as between the different claimant groups and between clan or sub-groups within single claimant groups. There is a strong and palpable sense of cultural identity and belonging to country, associated with a strong desire to operate as a regional grouping where appropriate whilst retaining local sub-group identity and responsibility.

It is also a region in which the representative body had committed significant time and resources, acknowledging the need to pursue more coherent claim strategies and agreeing to explore the potentiality of the framework agreements concept.

Local and State government agencies had responded positively in preliminary discussions and were similarly keen to find ways of progressing the resolution of claims

So, What is a Framework Agreement?

A Framework Agreement is simply that - it provides a procedural framework by which State agencies and claimants can more effectively progress and resolve native title claims through a negotiated process under which it is agreed to resolve particular aspects of a claim in a certain manner.

However, there are two preliminary requirements:

• the claimants need to have clearly thought through what it is they want to achieve from their claim and in what order (this may seem self-evident but experience suggests otherwise – claims may have been lodged for years but these basic issues may never have been canvassed);
• the State has to commit time and resources to negotiations and has to be ready to assist in those areas in which it has expertise. The State as the manager of public land also has a particular opportunity in developing new management regimes that involve local indigenous communities whether as native title holders or otherwise.

The Lismore Native Title Workshops

Once the initial consultative rounds were concluded the Tribunal, in conjunction with the NSW Premier’s Department, conducted workshops in the region for officers of state agencies and representatives of the claimants to discuss current problems with the claim process and to explore the potential of the framework agreement concept.

The workshops canvassed a range of matters which were seen as currently impeding progress in the resolution of claims in NSW. These included the following:

• the limited resources available to claimants were inadequate to properly participate in the claim process or be involved in negotiations;
• the frailty of senior claimants and the possible loss of their knowledge of country, culture and history suggests an urgent need to seek more expeditious means of resolving native title claims – preferably in their lifetimes;
• if the State could be provided with basic connection material at an early stage in the claims process, negotiations could proceed more expeditiously with better indications of the basis for achieving the desired outcomes;
• applications for determinations of native title have in the past been poorly defined in their geographical boundaries and in the specificity of tenures claimed - this causes problems for those State agencies which are required to prepare land tenure status reports and tenure histories;
• correctly ascertaining the status of land under claim is critical to the State formulating a negotiating position - it is difficult to talk in a meaningful fashion about the disposition of particular land if its tenure status or history is not known;
• the State is reluctant to commit to extensive tenure searches (which is time-consuming and specialist work with few experienced practitioners available) if there is no material indication of the nature of the evidence founding the claims.

Credible Evidence – Connection Reports

In 1995 the NSW Government declared that it would recognise native title when presented with ‘credible evidence’ of the claim. However there was little guidance as to what this phrase really meant, beyond presuming that it would be of a similar standard to that required to satisfy a court in a determination application.

In the course of the workshops the Tribunal put the view that a different approach should be considered whereby ‘connection reports’ could be prepared, consisting of basic material connecting claimants to country, but the depth and coverage of the report could be negotiable, acknowledging that the nature of the material required by the State for resolution of native title claims may depend to some extent on the objectives or desired outcomes of the negotiations. For example, the transfer of freehold land would require more comprehensive and compelling material than that required for negotiating access arrangements over public land such as forests and parks. A staged process of preparation of such material was considered.

Adopting a discretionary approach to this issue is also justified in those parts of the country where Aboriginal communities currently have strong connections to country, live on it and use it, but may not be able to satisfy the heavy evidentiary burden of proof posited by the High Court in Mabo [No 2}.

This approach could also be helpful to the State as manager of public land as it explores the opportunities for developing new management regimes involving local Indigenous communities, whether as native title holders or otherwise.

Resolving Native Title Claims through Alternative Statutory Legislation

The workshops discussed the possibility of using current state legislative mechanisms for resolving some aspects of native title claims:

• The Aboriginal Land Rights Act 1983 (NSW) (the ‘ALRA’) provides a basis for returning crown land to Aboriginal ownership. It is likely that there is land which continues to have cultural, historical or economic significance which could play a role in resolving current NSW native title claims. Claimable crown land is land not needed or likely to be needed by the State for residential or other essential public purposes. The interrelationship between this and the native title system is complex and sensitive, and utilisation of it will not always be appropriate.
• The ‘Aboriginal ownership’ provisions of the NSW National Parks and Wildlife Act provide a mechanism for the transfer of national parks into Aboriginal ownership with negotiated leaseback arrangements along the Uluru/Kakadu model. The scheme requires the identification of ‘Aboriginal owners’ under a less rigorous but similar test to that for determining native title holders under the Mabo [No 2} principles.
• The Northern Rivers region contains a significant amount of public land (consisting of nature reserves, recreation reserves, national parks and forests) in relation to which native title interests may continue to exist. State agencies managing public land in the region have identified the following as matters for negotiation: employment, joint-management, joint ventures, access to and protection of significant sites, and cultural awareness programs for non-Aboriginal visitors.

Framework Agreement Structure

The following operational structure was developed at the Lismore workshops:

Part One addresses technical procedural aspects for progressing the claim and includes the following elements

• a clear description by claimants of the areas and specific tenures claimed;
• assistance from the State in identifying land tenure status and tenure history;
• agreement on the nature of the connection reports to be prepared and the outcomes sought;
• State response to the connection report and to the outcomes sought
• an agreed timetable for advancing through each stage of the process.

Part Two of the agreement provides a framework for claimants to initiate negotiations with the State in relation to national parks, forests, crown reserves, vacant crown land, and water. These negotiations could proceed whilst aspects of Part One are being pursued – they do not need to await a final determination of native title but could utilise the current statutory regimes described above. The framework agreement also provides for negotiating alternative ‘right to negotiate’ regimes and compensation for past extinguishment of native title.

The essence of the framework agreement is that it provides the means for introducing some certainty – of tasks, timeframes and tangible outcomes - into what otherwise appears to be an amorphous process which rarely seems to go anywhere.

Postscript – NSWALC and Premier Carr’s ‘Parks Agreement’

In December 1998 shortly prior to concluding discussions directed to fine tuning the workshop draft described above the Tribunal was requested by NSWALC to put the draft aside as it was pursuing separate discussions with the Cabinet Office in the context of the Regional Forest Agreement scheme. As a result of these discussions, on 7 March (three weeks before the state election) NSW Premier Bob Carr signed a ‘parks agreement’ with NSWALC the principal features of which are as follows:

• the agreement relates exclusively to ‘land and waters which have been reserved or dedicated as a national park or a wilderness area or otherwise reserved since 1 January 1994 under the National Parks and Wildlife Act, Wilderness Act or Forestry and National Park Estate Act 1998’.
• negotiations under the agreement are triggered by the State when it makes a request to NSWALC for negotiations leading to an Indigenous Land Use Agreement – there is no provision enabling claimants to initiate negotiations.
• the agreement does not apply to other tenures affected by native title claims such as vacant crown land, crown reserves, current state forests, or national parks created before 1994.
• there is no provision for the costs of claimants who participate in the process.

The first stage of the ‘parks agreement’ commences operation with the preparation of maps (likely to exceed 100 in number) for each area of land upon which a park has been created since January 1994. The NSWALC will next mark out the ‘various tribal’ language or clan groups, associated with each area. The agreement envisages a long-term process, the operational details of which remain to be worked out.

It is hoped that by one means or another negotiated agreements become the way of the future for the expeditious resolution of native title claims in NSW. Time will tell.

Sean McLaughlin is a lawyer with almost two decades of experience working in the area of Indigenous law and policy. He has worked with the Northern Land Council, was a senior adviser to the former minister for ATSI Affairs, Robert Tickner, during the formative native title era 1992-96 and briefly worked for the Native Title Branch of the NSW Dept of Land & Water Conservation. He is currently a presidential consultant to the NNTT.