MANAGEMENT OF NATIVE TITLE AUSTRALIA’S NEXT “WICKED PROBLEM” Session 11-11:Formalizing Indigenous Rights in Developed Economies MANAGEMENT OF NATIVE TITLE AUSTRALIA’S NEXT “WICKED PROBLEM” Raelene Webb QC President, National Native Title Tribunal Australia

Mabo 1992 – possibilities and dissenters New land management order Realignment of power relations New relationship Dissenters Puny reward, nothing in the way of justice Retain terra nullius, repeal the Racial Discrimination Act Referendum to overrule Mabo

Native Title Act 1993 – mechanism for determining native title 2003 - 10 years on …sun may have set, with native title fatally wounded by the Native Title Act and the High Court. 2013 – 20 years on Renewed sense of optimism for native title reaching the broader potential promised after Mabo Tehan (2003, p. 571)

The next level – managing native title From proving traditional culture To western style corporate management

The management problem Prescribed Bodies Corporate (PBCs): hold and manage native title on behalf of native title holders are the corporate interface with third parties Underlying issues: complex corporate rules in conflict with culture no shared understanding of the roles of PBCs or the nature of native title no common understanding of what ‘success’ looks like aspirational gap between what governments expect of PBCs and what native title holders want

The wicked problem How to manage native title to ensure its full potential and access its opportunities in accordance with the aspirations of native title holders, not that of government or the broader community. Government Indigenous people in Australia Closing the gap Self-determination

PBC Financial and Human Resources Native title existing in over 30% of Australia being managed by >160 PBCs over 80% are “small” corporations over 70% have no employees nearly 50% have no income

The Dead Zone So there is a dead zone in the native title world made up of these small organisations. These organisations face great complexity and must continue without the necessary resources to administer their bit of the native title world. Marcia Langton, ‘Maximizing the Potential for Empowerment: The Sustainability of Indigenous Native Title Corporations’, in Sean Brennan, et al (eds) Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2015) p 177

Types of Governance Indigenous Cultural Governance Federal Government Native Title Holders PBC Corporate Governance Indigenous Cultural Governance contrasting with “Meddling” with customary mechanisms for managing traditional land Land Tenure Governance States and Territories

Effective management of native title by PBCs Fundamental preconditions drawn from International research on strong and effective Indigenous governance: Genuine indigenous control over PBCs and decision making Capable, effective and well resourced PBCs that can get things done PBCs that have cultural legitimacy in the eyes of native title holders

What needs to happen Sustained behavioural change and collaborative strategies No quick fixes Holistic approach Informed policy development and evolution Work across organizational boundaries Whole of government approach Federal government working with state, local government and other organizations – bilateral support Effective engagement across a full range of stakeholders – shared understanding of the problem

Getting to a conclusion – 25 years after Mabo Changing mindsets and behaviours Managing expectations Unified framework, which is both integrated and interactive Partnerships between governments, native title holders, industry and the wider Australian public To achieve New land management order Realignment of power relations New relationship