A Sick Institution - Diagnosing the Future Act Unit of the National Native Title Tribunal Commentary 7 Australian Indigenous Law Reporter 2002

7 Austl. Indigenous L. Rep. 1 (2002)
A Sick Institution - Diagnosing the Future Act Unit of the National Native Title Tribunal

handle is hein.journals/austindlr7 and id is 145 raw text is: A SICK INSTITUTION? DIAGNOSING THE FUTURE ACT
UNIT OF THE NATIONAL NATIVE TITLE TRIBUNAL
David Ritter'

Introduction
The principal statutory instrument governing the relationship
between the Australian nation ,rate and Australia's
Indigenous peoples' traditional interests in land is the
Commonwealth's Natwve Title Act 1993 (NTA). It is a
legislative regime enacted as beneficial legislation that has as
its first 'main object' the 'recognition and protection of native
title.'1 One of the principle utilities of the NTA was to
establish the National Native Title Tribunal (the Tribunal) to
act as an impartial mediator of native title claims and to
oversee future dealings affecting native title, known as 'future
acts'. The NTA demands that the Tribunal must, above all,
conduct its business in a fair, just, economical, informal and
prompt way.2 Although native title in Australia has given rise
to a vast literature, the effectiveness of the Tribunal has,
curiously, not figured prominently. The texts about the
Tribunal have largely been written from within the Tribunal
itself, with external critiques few and far between.3 The
purpose of this article is to critically analyse one of the chief
future act functions of the Tribunal, the administration of
objections to the application of the expedited procedure. This
process requires the Tribunal to inquire into whether an
objecting Aboriginal group should have a right to negotiate
over the grant of a mining tenement. In broad terms, it is
argued that in administering objections to the expedited
procedure, the Tribunal's bureaucratic ideology fails
Indigenous people and in so doing, favours resource interests
and governments.
The perspective of this article is from the parapet, looking
over the current struggle between Indigenous representatives
and the Tribunal over the limits of Indigenous power.4 Seeing
relations between Indigenous representatives and the
Tribunal in this light reflects the notion that the 'intake
section of a bureaucracy is a theatre of war between two
cultures.'s Importantly though, this paper is not an attack on
the Tribunal's staff or Members: it is about a bureau, not
about individuals.6 Accordingly, this article largely ignores

actual decisions made by Members of the Tribunal and
concentrates on the Tribunal's administration of process.7
Such an approach is common to literature that attempts to
expose inequalities and ambiguities that are latent in
processes and structures that exhibit formal equality.8
The institutional babushkas
The expedited procedure for mining tenements is a number of
conceptual and institutional steps removed from Mabo v The
State of Queensland (No 2) (1992) (Mabo)9 and it is
important to understand the chain of connection between
them in order to appreciate the significance of the former.
Mabo recognised the existence of native title under the
common law of Australia, but did not mandate any process
for how native title would interact with interests in land that
were yet to be created. Accordingly, in articulating a
legislative response to Mabo, one of the chief aims of the
Commonwealth Labor Government was to set out a process
for the interaction of inchoate undetermined native title with
the future creation of interests in land (future acts).10 This
system, eventually contained under part 3 of the NTA is
known as the 'Future Act System'. In essence, the 1993
version of the Future Act System afforded a right to
negotiate'1 to native title claimant groups in respect of
(among other things) future acts that constituted the creation
of a right to mine.
Thus Mabo begat the NTA, which begat the Future Act
Sy stem, which begat a further system known as the
,expedited procedure'.12 In a sense, the term 'expedited
procedure' is a misnomer, because the expression refers to an
absence of procedure or, more specifically, the exemption of
a tenement from the right to negotiate. It may be that to
Indigenous people 'the application of the expedited
procedure' appears as no more than the latest in a long line
of colonial euphemisms and is merely a coded way of the
Government saying 'the resource interest does not have to
talk to you about the grant of this tenement'. Importantly, the

(2002) 7(2) AILR

1

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