17/08/2026
IMPORTANCE OF DECISION-MAKING – OLD WAY - OUR WAY
Here’s a question: Governance?
My question goes to decision-making on native title issues. For those with continuing native title claims, do you understand what you have agreed to, when you agreed to hybrid decision-making
for the purpose of native title claims? So you may ask: What the hell are you talking about?
This yarn goes like this. When a native title claim is lodged the lawyers sitting at the front ask the collective claimant group at an authorisation meeting: How do you make decisions? What
type of governance do you have and understand under Traditional Law? For us, in the southeastern states, particularly those that I am aware of, have to think deep and do a bit of soul
searching before answering this question.
The first thing that comes to mind to those within the claimant group is: How did our People make decisions the Old Way? The ultimate answer is: We don’t fully know of the Old Way of
decision-making. For those people who are in their mid to late sixties plus, who have experienced Old Ways of decision-making when growing up in our old camps, are not assertive enough to convince the fifty year olds and under, that we did have a strong leadership and long-standing ways of governance that have stood the test of time. Let me give you an example.
It may surprise you to know that in Coe v Commonwealth [1979] HCA 68, Justices Murphy and Jacobs demonstrated their understanding in their dissenting argument that the High Court was well versed in Aboriginal leadership and tribal governance. This was revealed when Murphy J said that Paul Coe’s Sovereignty claim had merit, but that his claim was too broad and general.
What Murphy J was referring to was that Paul could not lodge a sovereignty claim of the type that was being argued in a general sense. Murphy J suggested that Paul could not represent all
Aboriginal people, including his own Wiradjuri Nation as a whole. Murphy J, supported by Jacobs J, suggested that Paul go away and refile his application, setting out the defined territory of his family clan, or clans, that is, mother’s and father’s. Paul did not file another application.
I have referenced this 1979 case because it showed that the High Court judges were familiar with the internal structures and governance decision-making Old Way. This knowledge is guided by
the Law Reform Commission’s reports on traditional Aboriginal societies, especially Aboriginal Law and customs. [see: The Recognition of Aboriginal Customary Laws (ALRC Report 31,
1986].
It should be noted that the Law Reform Commission’s reports are influenced by the writings of anthropologists and ethnographers such as R & C Berndt, Radcliffe-Brown, Daisy Bates and others. In these writings there are clear descriptions of decision-making and the role of Elders.
It was the Elders, within our communities, who understood how family clan groups’ connected to specific clan Country within our Nations made decisions. When growing up in camps, our Elders
and parents would tell and instruct us to not go to certain houses in the camps as we were required to avoid contact or closeness in any way. What we did not understand as children at this time was Law of Avoidance under our Law and customs. Bringing this into the present day means that we should not be at a general meetings voting the way white people do. In respect of this, 2021 amendments to the Native Title Act provided for greater flexibility to claim groups around developing their own internal decision-making structures. It is also said that the changes sought were to ensure accountability of the applicant group to the broader claim group.
The 2021 Native Title Act amendments sought to achieve:
a) Allow the applicant group to act by majority and make this the default position, but the amendments also permit that a claim group can displace this default position by imposing alternative conditions on the applicant group. For example, Old Way would require an understanding of our clan system. If we understood this, when decisions are being asked for at an authorisation meeting and/or an applicant meeting, Old Way means that each clan group break off from the general meeting where they talk amongst themselves about the question(s) being asked and the decisions being sought. The clan groups would then bring back their decisions to the plenary. If after this process there is not a decisive decision, then the clan group would appoint their own negotiators to sit with the other clan groups’ nominees to negotiate their own outcomes on the questions being asked, which would then be taken back to the plenary session for finalisation, without any further discussion.
Doing it white-way is the corrupt way, because the native title lawyers have an inside running in being able to suggest what they deem to be in the applicants’ best interest, but often this is doublespeak which is underlined by following the government’s best interest in land and water matters.
b) Allow the claim group to impose conditions on the authority of the applicant group, and to require those conditions to be recorded on Registrar of Native Title Claims. This means that this decision becomes a condition to require the applicant to get approval from the claim group (Old Way as described above) before agreeing to a consent determination, or discontinuing a claim.
c) These amendments also make it law that the agreed duties of the applicant group are determined by the claim group, whichever way decision-making is decided to be. And finally
d) The amendments simplify a process for a claim group to replace individual members of the applicant group, e.g. a member passes away, or is no longer able to perform their duties. It is also possible to include, through pre-agreed succession planning arrangements as may be determined by each clan group, who fills the vacant position, as may be agreed to by all parties concerned in the native title claim.
Unfortunately for us in the east and southeast of australia, we think Black but decide white-way.
I say this because, when the lawyers ask at native title claim applicant group meetings how we make decisions, we ultimately go white-way. This pleases the authorities because they own that
colonial decision-making process and we lose, because we are now trapped within their system of decision-making and governance, if we do not change our methods to suit our processes.
Just ask yourselves a second question: When we establish organisations we say it’s a Black organisation. It is that in name only. Ultimately, we are subject to the rules that govern that
organisation through ORIC, the Office of the Registrar of Indigenous Corporations, established under the CATSI Act, Corporations (Aboriginal and Torres Strait Islander) Act 2006. Our
corporations are also governed by the rules of the ATSI Act, Aboriginal and Torres Strait Islander Act, 2005, all of which belong to the government, written by the colonial legislative largess and to my knowledge there are no Black people participating at this level. In reality, the we are not free to make decisions outside of the parameters of the above named Acts, if our decisions are contrary to any sections in these Acts. The question is: How is it possible to make decisions Black way? The need to comply with these Acts overrides any ability we may have in deciding how to execute decisions our way.
Without realising it, deciding at a general authorisation meeting to make native title decisions white-way is to our detriment. We have entrapped ourselves into the colonial process, by not setting our own rules in place, and making these rules our default position.
By agreeing to the dictates of the Native Title Act as amended denies us from registering a PBC, Prescribed Body Corporate, under ASIC, Australia Securities and Investment Commission, Having said this, I acknowledge that the Native Title Act does provide for the ability of the Common Law Holder group to pass a resolution at a General Meeting to make application to the Federal Court to approve such a resolution from the Common Law Holder group.
Again, we see the subtle colonial rules of controlling our processes, making it difficult for us to be self- determining.
By incorporating under ORIC we find our minds imprisoned by the rules and regulations that govern the way decisions are made, and once again the colonial authorities maintain the upper hand and control the way we should think and decide.
Consequently, under the modern way of decision-making, there is no room for negotiated outcomes for the Nation because the loudest voices get to override the decisions that many people truly want as an outcome. This process does not take into account the thinking of the silent participants. Unfortunately the voting methods are based upon the leadership within the family groups. These claimants will talk in their claim groups, but not in the plenary session, and their voting patterns are led by their Elders and speakers for their families, without ever having an input, other than over a cup of tea or lunch.
If we are to adopt Old Way decision-making and true governance, it will provide an opportunity for the young and the silent to express their views within their clan group, without them having
their voices shut down because they don’t truly participate in the general meeting, nor fully understand the processes. Old Way brings them all together where they can express their views before decisions are made. This is the democratic and transparent way of making decisions.
This would also strengthen any native title determination in the claimants’ favour as traditional Law and custom are being maintained into the present. By admitting that there is no Old Way of governance and adopting white-way makes you a loser before a hearing begins and the court will recognise this.
Our People must realise that with the Native Title Act amendments of 2021, we can control the process by setting our rules and not be led by the nose by lawyers and anthropologists, who are beholden to the Crown. These lawyers and anthropologists follow the rules set down by the colonial masters who have written the legislation.
WE MUST LEARN TO EXERCISE WHAT LITTLE POWER WE HAVE TO CONTROL OUR OWN DESTINIES.;
- By Professor Ghillar, Michael Anderson, Convenor of the Sovereign Union, last surviving member of the founding four of the 1972 Aboriginal Embassy in Canberra and Head of State of the Euahlayi Peoples Republic provides an insight into decision-making processes in native title matters.
Sovereign Union Media release 13 August 2026
