The National Native Title Council (NNTC) has plans to create a pool of lawyers to internally procure and share legal resources in the Native Title sector, despite being a non-profit peak body.

It’s understood NNTC members put forward a proposal suggesting the Council facilitate the sharing of lawyers cross-sector to save financially on briefing external lawyers and firms.

The NNTC’s commercial subsidiary, Native Title Enterprises (NTE) Pty Ltd, would potentially provide lawyers to Native Title Representative Bodies and Service Providers (NTRB/SPs) at their request. The work would then be procured internally, shutting out external solicitors and law firms from the tender process.

“We have been having plenty of conversations this year about … different compensation options,” said NNTC CEO Jamie Lowe.

“Facilitating lawyers around the system was one of those … it’s very early conversations at the moment.”

To work on the proposal, a working group was put together including NNTC Directors and staff, regional member representatives and Directors of NTE. One NTE Director in the working group is Yamatji Marlpa Aboriginal Corporation (YMAC) CEO, Simon Hawkins, whose role in the Juukan Gorge blasts is currently being questioned.

When asked if representative bodies would want to use YMAC’s lawyers due to questions around the agreement negotiated with Rio Tinto, Lowe was unsure.

“When you negotiate you have to give up a whole lot of stuff … it’s just what it is.”

In April 2020, the working group put together a concept paper outlining the drivers, benefits and issues of creating such an entity.

In a copy of the concept paper obtained by NIT, it said the proposal’s initial driver was the “unavoidable need” for representative bodies to brief external lawyers to “avoid the real or perceived conflict of interest of the NTRB/SP acting in certain circumstances”.

“The main driver was just to create more efficiency in the Native Title sector,” Lowe said.

“Even within the representative body system some lawyers are conflicted out of matters.

“Say you have a pool of five lawyers and you’re dealing in one matter, and then there’s other parties that need to be represented … you can’t represent them because you’re already representing [the other] party.”

An internal pool of lawyers would allow representative bodies to access counsel from inside the sector, but separate to any conflicting matters.

Lowe said he thinks the concept is “quite unique”.

 

Cartel behaviour

A major issue with creating such an entity is that the NNTC may be engaging in anti-competitive and cartel behaviour under the Competition and Consumer Act 2010.

Section 45 of the Competition and Consumer Act 2010 forbids any “arrangements, understandings or concerted practices that have the purpose, effect or likely effect of substantially lessening competition in a market”—essentially any business practices that limit or prevent competition.

To this end, the NNTC would be limiting the market for Native Title lawyers not already engaged by the sector.

The Act also says cartel behaviour relates to price-fixing, restricting output in production and supply chains, allocating customers or suppliers, and bid-rigging by parties that would otherwise be in competition with each other.

Even the NNTC are questioning whether they are in breach of competition and consumer laws, noting in their concept paper the “risk” that drawing on internal lawyers “would be contested by [the] private sector as anti-competitive behaviour”.

The concept paper neglects to mention any benchmarks for quality should such a body exist.

While Lowe said there “could be a perception” the NNTC is “trying to monopolise the system”, he said he believed there will always be a need for external firms.

“I think you’ll always be briefing out to other firms … you’ll always need that,” he said.

Lowe said there is no rush on the NNTC’s behalf to get this proposal moving as the idea is still at board level—not all NNTC members are aware of the proposal as yet.

“We’re just in pre-discussions really, we have to talk to the Council about it,” he said.

“Because of COVID everything has slowed down a little bit in regards to this, we don’t necessarily have a timeline on it.”

A spokesperson for the National Indigenous Australians Agency (NIAA), however, told NIT the NNTC is already in discussions with the Agency regarding funding a study into the feasibility of the internal legal body.

“The National Native Title Council has approached NIAA for a grant under the Indigenous Advancement Strategy to conduct a feasibility exercise into whether the NNTC’s subsidiary company, Native Title Enterprises Pty Ltd, could play a role in facilitating Native Title Representative Bodies and Services Providers to share legal officers as needed,” the spokesperson said.

“The proposal is under consideration by the Agency.”

By Hannah Cross