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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