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65 David Ritter
Box 2: The Badimia Working Group
Since 1997, the Badimia Working Group – a group of
approximately one dozen ethnically and culturally
Badimia people (a tribal group from near Mt Magnet
in Western Australia) have met regularly to make
decisions about native title processes associated with
all proposed exploration, mining and development
on the land that they are claiming under the Native
Title Act. There are many other tribal working groups
throughout the north west of Western Australia.
under the greatest pressure to obtain the
necessary permissions to go ahead as (for
example) a precondition to further capital
investment.
The system set out above constituted a
radical departure from the functioning of
indigenous societies in the north west prior
to the NTA. Having never before held
rights in relation to development, there
were no pre-existing indigenous systems
for dealing with such matters. The whole
edifice for maximising access to the rights
and opportunities inherent in the future
act system was imposed – albeit with the
active participation in design and consent
of the communities in question. Nevertheless, the system described was never
completely detached from indigenous law
and custom.
However, native title meetings take
time and are often stressful, imposing a
considerable burden on indigenous
communities. The social realities of indigenous people in Australia also mean that
many of those attending native title meetings may often have very serious mental or
physical health issues.
The representative structures
mandated by the NTA and further elaborated in native title practice acted as a
substitute for direct participation by the
entire community at all times. The point of
the substitution was essentially practical:
to provide a legal and administrative mechanism by which certainty of indigenous
consent and agreement could be given
under the NTA. However, a variety of feedback loops exist in the native title process to
try and minimise the extent to which the
representative structures may become
distanced from the broader communities
which they represent. For example, under
section 66B of the NTA, a named applicant
to a native title claim who is not acting in
accordance within the scope of community
authorisation can be removed as an applicant. This presents an intersection of
traditional authority with statutory power.
In the case of Daniel v Western Australia
[2002] FCA 1147, for example, an applicant was removed, after the broader
community which he was meant to represent had authorised him to execute a native
title agreement and he refused to do so.
Behind the face of the decision, lay considerable community stress and conflict
around the land use decisions in question.
Rights to participate in decisionmaking, for example, were often
determined by traditional authority and
would be manifested in people being
chosen to conduct negotiations, or heritage
surveys on the basis of their right to ‘speak
for the country’ in question. ‘Speaking for
country’ is an expression commonly used
in the Yamatji and Marlpa lands to refer to
an individual having the right of traditional
authority over an area of land or waters.
For example it might be said ‘Old Jack
speaks for that country’.
Lessons learnt, critical reflections and
analysis – Australia’s Native Title era
Undoubtedly, the system described above
was successful in ensuring that development did not take place on land under
native title claim in the north west without
some process of engagement with the
indigenous traditional owners taking place.
Many hundreds of individual dealings took
place, giving rise to numerous agreements
and tens (possibly now hundreds) of
millions of dollars worth of commitments
by developers. It seems likely that numerous sites of traditional significance were
saved from destruction. A generation of
post-colonisation indigenous people experienced a hitherto unknown level of