McAvoy, Tony --- "Native title litigation reform" [2009] ALRCRefJl 10; (2009) 93 Australian Law Reform Commission Reform Journal 30

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Native title litigation reform

By Tony McAvoy*

Contrary to the beliefs of a number of the individuals involved in native title processes, native title litigation is unique.

While it is true that the preparation and hearing of evidence is not markedly different to any other litigation,¹ the whole of the codified system for determination of native title rights and interests must be recognised as a process which continues to be mired in unresolved race politics. The challenge is to diminish or remove that which makes it unique.

There can be no doubt that the 1998 amendments to the Native Title Act 1993 (Cth) (NTA) were designed to deliver ‘bucket loads of extinguishment’.² Nor can there be any doubt that the introduction of the threshold test and tying of future act procedural rights to Federal Court proceedings were acts designed to make access to procedural rights a difficult and costly process.

I have been asked and will attempt to corral my comments to areas for necessary reform in native title litigation. Additionally, I have made some brief comments which I have grouped under the headings ‘substantive reform’ and ‘if I had my way reforms’. As partisan as it may be, the aim of my reform recommendations are to protect the native title rights and interests of Indigenous people in Australia, while streamlining the convoluted processes.

Litigation reform

There are four areas in which reform may be easily and readily achieved and which would dramatically improve the rate of resolution of native title litigation (and case flow figures for the Federal Court). They are:

• corporate applicants;
• separating future act procedural rights from native title determination proceedings;
• regularising the application and pleading process; and
• clarifying the consent determination process.

Corporate applicants

The NTA provides for native title applications to be made by a person or persons claiming to hold native title either alone or with others.³ The interpretation of the wording in s 61(2) and (3) of the NTA by the Court in Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title Registrar and Others⁴ had the effect of removing the capacity to claim native title through an incorporated body.

In that case, O’Loughlin J observed, at [42], that s 61 required an application to be made by a person or persons claiming to hold native title either alone or with others. His Honour said:

The concepts of corporations and statutory bodies are, in relative terms, recent inventions of the Western world and are unknown in Aboriginal law or custom. The provisions of the Acts Interpretation Act 1901 (Cth) cannot be called in aid, according to the applicants’ argument, because the relevant provision, para 22(1) (a) states that a reference to a person including a body corporate will not apply where a contrary intention appears; here it is said that such a contrary intention appears.

The above passage appears to have settled the issue and applicants in all native title applications have since been required to be natural persons. An amendment, which could be made relatively easily, could require an applicant to be a ‘person or persons claiming native title either, alone, with others, or on behalf of others’.

The need for such an amendment arises out of other rulings of the court to the effect that the applicant in native title proceedings is a single entity, and therefore the persons who comprise the applicant must be of one mind.⁵ In the event of there being some deadlock because of the inability to reach singularity of mind, the courts have shown a readiness to remove one or more people from the application.⁶ The process for the removal of people from the group comprising the applicant is not a simple process and has the potential to create division in the claim group, which is difficult to overcome.

A further difficulty that I have observed is the knowledge the applicants have of the difficulties that accompany removal. This equates to an overall lack of accountability to the claim group. Bearing in mind that many claims presently before the courts were filed prior to 2000, the opportunities for abuse of the position are apparent.

If, however, a claim group was able to authorise a corporate entity to be the claimant, the decision makers in respect of the all - important role of providing instructions would be the directors of the corporation. The benefits would include: the existence of a decision-making framework which could ultimately be challenged, in separate proceedings if necessary; the decision makers (directors) would be subject to scrutiny and accountability; and decision makers could be changed with relative ease. Most importantly, for the purposes of reforming the native title system, the legal representatives of the applicants would be able to obtain instructions quickly and with certainty.

Since the introduction of the 1998 amendments to the NTA, native title holders are required by law to nominate a corporate entity to hold their native title rights and interests as an agent or on trust. There is no logic in forbidding the making of an application by what, in many cases, will be the same corporation which may ultimately hold the native title.

Separating procedural rights from determination applications

The coupling of access to procedural rights to the making of an application for determination of native title rights and interests was premised upon the misguided view that such coupling would expedite the resolution of native title rights and interests over those areas in which there was ongoing interest and activity. The 1998 amendments were pushed through—with a new threshold to establish a claim—under the mistaken belief that native title would cripple mining and other industries. This has not transpired, and it is now appropriate to re-cast the balance.

I propose that the National Native Title Tribunal (NNTT) become the procedural rights oversight and management body, and a specialist mediator as and when so appointed by the Court. I suggest that if the applicants in proceedings presently before the Court were given the option of discontinuing proceedings on the basis that they would retain their procedural rights, a vast majority of current applicants would take this opportunity.

There are numerous reasons why there are so many applications currently before the Federal Court that are registered but proceeding at an inexorably slow pace. For a large proportion of those claims, however, the progress or lack thereof is out of the applicant’s hands.

Under the above-noted proposal, the NNTT would continue to be the body that applied the registration test to native title determination applications. Groups claiming native title, however, could simply apply for registration without the need to commence court proceedings.

The NNTT also should keep a register of s 29 notices, and an online diary of closing dates for the making of applications for registration as a registered procedural rights holder. At present, it does not appear that any single agency keeps a register of s 29 notices—the obvious candidate would be the NNTT. Upon being entered on the register as a registered procedural rights holder, the registration would remain in place until such time as native title is determined, but without the obligation on any party to bring a determination application.

Regularising the application process

Assuming access to procedural rights could be separated from the determination process, it also is my view that the native title determination application process needs to be regularised to some extent. In particular, the application merely should be, a document that sets out the parties and the relief sought, together with any interlocutory relief sought. An application in the form of the Federal Court Rules Form 5 is appropriate.

I also would recommend a practice direction to the effect that:

• at or about the expiration of the notification period the applicant would be required to file and serve Points of Claim;
• within a suitable time, all respondents who had entered an appearance would be required to file Responses to the Points of Claim;
• the parties would then be directed to attend before a Registrar of the Court for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceedings had been taken, and to clarify the real issues in dispute so that appropriate directions may be made for disposition of the matter; and
• the matter would be remain in mediation before the Registrar for as long as progress towards a negotiated outcome was being achieved. The Registrar also would have the power to refer matters or issues to the NNTT for further mediation.

Again, I stress that such a realignment of native title litigation process with the mainstream of court business can only be done where claims which are not ready to proceed are discontinued, and procedural rights retained.

Clarifying the consent determination process

At present there appears to be three different schools of thought within the Federal Court concerning the requirements which must be established before the court will be satisfied that it is ‘appropriate’ under ss 87 and 87A to make consent orders. The three views appear to be:

• nothing less than evidence meeting all the essential elements of native title will suffice;
• an agreed statement of facts addressing each of the elements as required by the statute will be sufficient; and
• a statement from the government parties to the effect that the they have received the applicant’s evidence and are satisfied that it is sufficient to make out the native title rights and interests sought.

To address this issue, an amendment could be made to ss 87 and 87A to make it clear that appropriateness is confined to ensuring that the parties have had appropriate legal advice. Alternatively—which in my view involves an unnecessary level of scrutiny by the courts— appropriateness could be demonstrated by the filing of an agreed statement of fact.

Such reforms, if implemented, would reduce the Federal Court list, ensure that all applications have clearly identified issues in dispute, enable parties to provide instructions to legal representatives with speed and certainty, and establish a uniformity of approach in applications for consent determinations.

Substantive reform

Substantive reforms which should, at the very least, be the subject of detailed discussion include:

• greater protection for native title rights and interest pending determination of proceedings—including the repeal of s 24HA of the NTA⁷ —and remedying the disastrous effects of the decision in Lardil ⁸ (which has effectively neutralised procedural rights);
• taxation reform to allow native title groups to receive and distribute native title benefits in a tax free environment. It is also worth considering incorporating statutory trusts into which native title groups could, but would not be obliged to, direct compensation monies to be received and distributed; and
• amending the procedural onus in respect of claims of extinguishment. The only parties in native title proceedings which have information concerning the extinguishment of native title are government parties. They are also the only parties that raise claims of extinguishment. Government parties should be required to give notice to the applicants of those lands over which native title is said to be extinguished at an early stage in proceedings.

‘If I had my way’ reforms

Finally, if I was the Attorney-General of Australia, I would:

• amend s 223 of the NTA to make it clear that native title rights and interests are all those rights and interests in the land which the sovereign has not alienated and in respect of which there is a satisfactorily described claim group, who have proved descent from the original inhabitants;
• contemplate removing native title claims from the adversarial process necessarily required by the Federal Court and consider the creation of a Commission which would conduct inquiries; and
• provide a framework for comprehensive regional settlements, with substantial incentives for the states to commence, negotiate in good faith and conclude such agreements within reasonable timeframes.

The demand for a more outcomes-focused native title claim process is not something you would hear a native title claim group or applicant disagree with—unless of course the blame for the difficulties in the process were laid at their feet. Some of the problems can be dealt with relatively easily, but others will take real understanding of the process and a commitment to pushing aside the obstacles.

* Tony McAvoy is a New South Wales barrister, working in the areas of native title and land rights. Born and bred in Brisbane, Tony’s traditional country is the Clermont area of Central Queensland.

Endnotes

1 Putting to one side the preparation of statements regarding matters of spiritual belief and the

general preference for applicant lay evidence to be heard ‘on country’.

2 Tim Fischer, Deputy Prime Minister, interview with John Highfield, ‘ABC TV World at Noon’,

4 September 1997.

3 NTA 1993 (Cth) s 61(2).

4 Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title

Registrar and Others [1995] FCA 1484 (24 August 1995).

5 Eg, Ankamuthi People v Queensland [2002] FCA 897 (17 July 2002).

6 Button v Chapman on behalf of the Wakka Wakka People [2003] FCA 861 (20 August 2003).

7 Section 24HA of the NTA provides a right to comment in respect of the management or

regulation of water.

8 Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland [2001] FCA 414

(11 April 2001).