1. 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

2. 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

3. Native Title Act 1993 – mechanism for determining native title
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)

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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