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The President of the National Native Title Tribunal is required by s. 133 of the Native Title Act 1993 to give to the Commonwealth Minister (in this case the Attorney-General) a report of the administrative affairs of the Tribunal during the financial year, amongst other things. This Annual Report covers the period 1 July 1994 to 30 June 1995.
The extracts reproduced here are the President's Overview, Chapter 3: Mission Statement and Statement of Objectives and Chapter 4: Policies, Practices and Procedures of the Tribunal. It should be noted that the comments in the President's Overview pre-date the decisions of the High Court in North Ganalanja (Waanyi) v Queensland [1996] HCA 2; (1996) 135 ALR 225; (1996) 1 (3) AILR 382 and Wik Peoples v Queensland (1996) 141 ALR 129; (1997) 2 (1) AILR 35. The references to appendices are to appendices to the Annual Report and are not reproduced here.
On 1 January 1994, the National Native Title Tribunal was established under the Native Title Act 1993. The main purposes of the Act are to provide for the recognition and protection of native title, to establish ways in which future dealings affecting native title might proceed to set standards for those dealings and to establish a mechanism for determining claims to native title. The establishment of the Tribunal created a mechanism for resolving native title determination applications through mediation as a first resort before litigation. In this way, it was sought to further the objective of recognising native title. Through its role as a mediator and arbitrator in relation to future acts affecting native title, the Tribunal also serves the protection of native title and the establishment of standards for future dealings affecting it. This, the Second Annual Report of the Tribunal, covers the period of its operations from 1 July 1994 to 30 June 1995.
In the course of the year, the Tribunal defined its task by way of a mission statement as being:
1. To facilitate the recognition of native title.
2. To promote just agreements about native title and the use of traditional Aboriginal and Torres Strait Islander lands and waters in ways that:
* are fair, just, economical, informal and prompt;
* take account of the cultural and customary concerns of Aboriginal and Torres Strait Islander people, and the interests of all other people affected by native title issues;
* promote an informed discourse between Aboriginal and non-Aboriginal Australians.
The subject matter of the Native Title Act 1993 is native title and that
is the statutory concern of the Tribunal. It is a concept defined in the Act by
reference to communal, group
or individual rights and interests of Aboriginal
peoples or Torres Strait Islanders in relation to land or waters where those
rights
and interests are recognised by the common law of Australia. The subject
matter of the Act therefore takes its content from the common
law. But the
common law of native title is yet to be fully developed. Native title was a
term which was said by Sir Gerard Brennan
in
Mabo v The State of
Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 conveniently to describe the interests
and rights of indigenous inhabitants in land whether communal, group or
individual, possessed
under the traditional laws acknowledged by and the
traditional customs observed by the indigenous inhabitants. The content of the
native title rights of any indigenous community is dependent upon laws and
customs defining its relationship to the land. It does
not matter that the laws
and customs may have changed since European colonisation provided that the
connection with the land remains.
The kind of connection which supports native
title does not necessarily import exclusive possession of the land.
An important limitation on native title is that it is subject to extinguishment in the exercise of the Crown's sovereign power, whether by legislative or executive action.
The exercise of that power must reveal a clear and plain intention to have that effect. The ultimate test of extinguishment appears to be one of inconsistency but a fuller enunciation of the operation of the doctrine of extinguishment is yet to be developed.
In areas in which traditional connections with land have survived and native title is unimpaired by the creation of inconsistent tenures, it may resemble beneficial ownership of a communal character. In some areas it will co-exist with other non-indigenous interests in a form limited or qualified by the grant of those interests. In many places it has been extinguished altogether by the grant of inconsistent interests.
The common law as explained in the Mabo decision contemplates the possibility of the surrender of native title. The Crown's sovereignty over the land carries with it the capacity to accept the surrender of native title which may be on purchase or voluntarily. The Native Title Act 1993 makes explicit provision for agreements to be made under which native title can be surrendered. Importantly, it takes a step beyond the common law in allowing native title holders, by agreement with governments, to authorise any future act that will affect their native title. This provision has important practical potential for the resolution of issues between Aboriginal people asserting title to traditional country and government and other interests wishing to engage in activities on that country.
The experience of the National Native Title Tribunal in the year under review
emphasises the truth that those who deal with native
title deal with two
systems of law. There is the indigenous law and the law of those whom came
afterwards. From the indigenous perspective,
it is their law and custom which
defines their relationship to country. The concept of native title is an
artefact of non-indigenous
law. It has limitations which must be recognised by
the whole community. It reflects an uneasy alliance of common law ideas of
"right"
and "interest" with traditional concepts of ownership of country that
have few or imperfect analogies at common law. The boundaries
of native title
at common law are defined by conditions, particularly in relation to
extinguishment, which have little rationale
in terms of the traditional beliefs
of Aboriginal people and the strength of their relationship with the land.
Native title may have
been lost by the enforced removal of people from their
land or extinguished by legislative or executive
acts. It involves rights
which may have limits in scope or content which render them narrow and
incomplete
when measured against the richness, complexity and wholeness of
surviving traditional relationships between Aboriginal people and
their land.
It is not surprising that many native title claims are but highly visible manifestations of indigenous agitation for recognition of rights to country previously expressed by resort to heritage legislation, land rights legislation and general political and social campaigns. Nor is it surprising in that context that negotiations about native title tend to involve Aboriginal aspirations about country as a whole.
It is a corollary of that observation that the extinguishment of native title at common law does not dispose of Aboriginal aspirations about country or the need to deal with those aspirations on a proper basis. The application for a native title determination made by the Waanyi people in the gulf country of North Queensland was not accepted for reasons to do with historical extinguishment. (The decision is under appeal to the Full Federal Court). Nevertheless substantial negotiations have been carried on between the people and the Century Zinc group which wishes to develop a major lead/zinc mining operation in the area. The negotiations have been undertaken by a Presidential Member of the Tribunal appointed as a mediator under Commonwealth heritage legislation.
The procedures for which the Act provides and the procedures which the Tribunal itself has adopted have been the subject of continuing scrutiny and debate in the year under review. This is to be welcomed. The process which was begun with the decision of the High Court in Mabo (No. 2) and furthered by the enactment of the Native Title Act 1993 is evolutionary in character. It is an historical process from which it does not seem there can be any turning back. It will lead to the resolution of some native title applications by determinations of native title. In some more complex cases involving a wide range of different interests and parties and development pressures, the resolution may involve comprehensive agreements about country. The Tribunal has encouraged those involved in native title applications generally to consider ways of resolving applications or development issues connected with pending applications by the use of agreements under s. 21 of the Act in a local or regional setting.
A Discussion Paper published shortly after the end of the reporting period
pointed to the use of framework agreements which could
be made with traditional
owners in a regional or sub-region dealing with Aboriginal aspirations for
traditional country and development
issues relating to that country. It was
suggested in the paper
that mechanisms could be established for the
authorisation of such developments on undertakings to negotiate in
good
faith and on agreed timeliness. Such agreements could provide for a range of
other matters, including
transfer of some land to indigenous interests,
provision of opportunities to develop an economic base, including the provision
of
contract services in relation to proposed developments, employment and
training opportunities, protection of areas of significance
and lifting the
profile of cultural tourism in the area. While these proposals provide
approaches rather than answers, it is hoped
to encourage among Governments and
mining and other interests
a more creative and proactive approach to the
resolution of native title and related issues. To that end the Tribunal,
together with
the Aboriginal and Torres Strait Islander Commission and the
Council for Aboriginal Reconciliation, organised a conference to be
held in
Darwin in September to consider ways of arriving at indigenous land
use
agreements.
The year under review has seen significant developments in the legal and political environment in which the Tribunal operates. The validity of the Native Title Act 1993 was established by the decision of the High Court in Biljabu and Others v State of Western Australia [1995] HCA 47; (1995) 128 ALR 1 delivered by the High Court on 16 March 1995. At the same time the Court held the Land (Titles and Traditional Usage) Act 1993 (WA) to be invalid for inconsistency with the Racial Discrimination Act 1975.
The number, variety and complexity of applications lodged with the Tribunal
increased substantially. At
30 June 1994, 15 claimant applications for
determinations of native title had been received. By 30 June 1995, that number
had risen
to 81. For the most part each of these applications, if it were to go
to court, is potentially a major piece of litigation.
The membership and establishment of the Tribunal have been expanded to meet the demands of the existing and projected workload. Membership increased from three at 30 June 1995 to 14 at 30 June 1995. There are six Presidential Members, of which one is full time. Three of the Presidential Members, other than the President, are serving Judges whose availability for the work of the Tribunal is severely limited. Of the non-Presidential Members, four are full time and three part-time. The Tribunal has been fortunate in the choice of its Members. They bring a wide range of skills and backgrounds to the difficult and complex work of mediating in native title applications and the other functions of the Tribunal. Some Members have held political office as Ministers of the Crown in Commonwealth and State Governments. That is entirely appropriate. The mediation function of the Tribunal is assisted by those who have an understanding of the ways in which competing and sometimes conflicting public and private interests can be reconciled. There is a need for additional indigenous Members of the Tribunal to deepen the collective understanding of Aboriginal and Torres Strait Islander perspectives and to assist in the resolution of intra-indigenous conflict which characterises some of the applications before the Tribunal.
There has been in the year under report considerable focus on legal questions
arising in relation to the extinguishment of native
title. Preliminary issues
relating to extinguishment were argued before the Federal
Court in common
law native title proceedings commenced in that Court by the Wik peoples before
the enactment of the Native Title Act 1993. Judgment on those issues,
including the question of the effect of Queensland pastoral
leases on native
title, was still reserved at the end of the reporting period. Similar issues
were ventilated before the Tribunal
in relation to the acceptance of the Waanyi
peoples' application. The Tribunal approach to acceptance of applications
generally was
set out in a ruling given on 15 September 1994 in that matter --
Re: Waanyi
Peoples' Native Title Application (1994) 129 ALR 100. In a
subsequent decision given on 14 February 1995, the Registrar was directed not
to accept the application - Re: Waanyi Peoples' Native Title Application
(1995) 129 ALR 118. That ruling, which dealt with the impact of pastoral leases
on native title, was the subject of an appeal to the Full Federal Court
which
heard argument over four days in June 1995. Judgment was still reserved at the
close of the reporting period.
An application by the Wadi Wadi Peoples was also the subject of a ruling
directing the Registrar not to
accept the application -- Re Wadi Wadi
Peoples' Native Title Application (1995) 129 ALR 167. It was held that,
under the law as it presently stands, there is no general fiduciary duty
historically owed by governments to Aboriginal
people which could be used as a
basis for invalidating past grants otherwise extinguishing native
title.
That ruling is also under appeal to the Full Court of the Federal
Court. Two other decisions rejecting applications have also been
appealed to
the Full Court. The acceptance process has been the subject of attention from
State and
Territory Governments which have initiated judicial review
proceedings in relation to some acceptance
decisions. The Tribunal's
approach to acceptance, including its undertaking of historical land tenure
searches, has elicited criticism
from some interests. Nevertheless in a number
of cases it has led to amendment and refinement
of applications.
A legal issue of considerable significance to the Tribunal was raised by the decision of the High Court of Australia in Brandy v Human Rights and Equal Opportunity Commission (1995) 127 AILR 1. That decision called into question the validity of legislation under which determinations of the Human Rights and Equal Opportunity Commission were registered in the Federal Court and took effect as orders of that Court. The provisions of the human rights legislation found to be invalid were similar in all relevant respects to the provisions of the Native Title Act relating to registration of Tribunal determinations in the Federal Court. The Tribunal responded to the decision by indicating that in future where parties to a native title application reach an agreement as to a determination, they would then be referred to the Federal Court and seek a consent order. This would bypass the inquiry and determination functions of the Tribunal and ensure that the final determination takes effect as an exercise of judicial power.
The Brandy decision however, gave rise to consideration of legislative change which would address not only the constitutional question but also procedural aspects of the Act, including the tension between the role of the Tribunal as decision-maker and its role as mediator. These issues were canvassed in a Discussion Paper on Proposed Changes to the Act which was published on 14 March 1995. The paper was released to Aboriginal Representative Bodies and other interests and submitted to Government. Subsequently, the Government has announced an intention to amend the Native Title Act along lines somewhat similar to those set out in the Discussion Paper.
Up to April 1995, the Tribunal had been faced with virtually no work under the future act regime. Following the High Court's decision in Biljabu v State of Western Australia however, the Minister for Mines and Energy in Western Australia announced that the Government would issue future mining titles only after an assessment of the possibility that native title continued to exist. In any case, where native title remained a possibility, the future act regime would be used. By 30 June 1995 therefore the Tribunal had received approximately 500 notices issued by the State of Western Australia pursuant to s. 29 of the Act. All of them related to mining tenements. The Tribunal has established a Future Act Section and dedicated a Member to the management of cases through that Section in order to meet this challenge. At the close of the reporting period, the process was still in its infancy but published procedures and administrative arrangements to deal with the future act regime were in place. These are described more fully in the body of the report.
There were during the reporting period some 49 non-claimant applications lodged, mostly in New South Wales. Thirty-two inquiries in relation to these applications were conducted during the reporting period and eight determinations made which were registered in the Federal Court. Twenty-four of the inquiries were adjourned by agreement on the basis that the intended future acts on the areas of land the subject of the applications could validly be carried out while the applications stood as unopposed. A protocol for this procedure was developed by the Tribunal in response to a suggestion made by the Commonwealth Pipeline Authority which had some 17 non-claimant applications affecting the path of a proposed gas pipeline from Moomba to Sydney. The suggestion thus made was a useful example of an attempt to take a creative and proactive approach to the resolution of Aboriginal and non-Aboriginal interests under the Act. The adjournment procedure aside, the utility of the inquiry and determination making process to which the non-claimant procedure is directed by the legislation, may be questionable following the decision of the High Court in Brandy's case.
In the year under review, the Tribunal has been actively engaged in explaining its own processes and the processes under the Act to a wide range of community groups and interests. It has put in place a community liaison policy which is explained more fully in the Report. It has also continued with a system of State and Territory-based user groups, known as State Liaison Committees, through which various interests affected by the work of the Tribunal have an opportunity to discuss its procedures and operations directly. A second round of these committee meetings was held in December 1994 and included for the first time a National Liaison Committee in Canberra. A third round of State meetings has been concluded since the close of the reporting period.
Tribunal Members and staff have also been involved in speaking to Aboriginal communities and representative bodies around the country. Brochures and explanatory pamphlets have been published and a newsletter established. Media interviews have been provided by Tribunal Members and staff to assist in developing community understanding of the native title process.
The mediation of applications has proceeded during the year under report. None
has yet led to an agreed determination of native
title. A partial agreement
between the applicants and all parties except the State of New South Wales was
reached in relation to
an application by Wiradjuri people at Wellington in New
South Wales. It gave a promising indication of the reconciliation of Aboriginal
and non-Aboriginal interests which can emerge from the native title process.
Four applications were referred to the Federal Court
under s. 74 of the Act
following unsuccessful mediation. The time frames and contents of pre-trial
directions in two of these cases
are indicative of the likely demands on
resources that will be imposed by native title litigation. In a number of
cases, mediation
has opened up promising avenues for resolution or partial
resolution of applications. Negotiations on native title matters can be
delicate, time-consuming and difficult. Generally speaking, parties prefer to
keep negotiations confidential while they are underway.
It is therefore
difficult to report in a concrete and open way on their progress. Some
mediations which may look unpromising initially
become more promising as the
result of a change of policy on the part of
the Government or other major
interest.
Negotiation about native title has the special character of negotiation in which Aboriginal people are asserting that they have existing legal rights which grow out of their law and culture. For those involved in such negotiations, there is a powerful lesson to be learnt about the central place of country in Aboriginal and Islander life, even among those who may have been physically removed from their land. The mediation process is difficult and time-consuming for a variety of reasons. These include varying levels of sophistication and resource support amongst Aboriginal applicants and others. Mediation can be, for both Aboriginal and non-Aboriginal interests involved in it, a voyage of mutual discovery which involves the painful modification of attitudes and expectations. In a number of cases, local governments have been at the forefront in seeking ways to resolve native title applications in the interests of the whole community. There are recent indications of a more proactive approach to the resolution of native title applications by elements of the mining industry and some pastoralists. Useful discussions have also been held with fishing and pearling interests about the resolution of water claims. State or Territory Government approaches to native title vary and appear in some cases to be linked to the resolution of issues between State and Commonwealth Governments.
Conflict has arisen in a number of cases between Aboriginal interests. These conflicts have to be addressed and, if not resolved, at least managed by the Aboriginal interests themselves. The role of properly resourced representative bodies is fundamental in this respect. It is also of critical importance to enabling Aboriginal applicants to engage in effective negotiation with other interests. In this respect, the review of native title representative bodies initiated by ATSIC during the reporting period was timely.
It is encouraging to note that some claims have emerged during the reporting period which do not face the same difficulties of extinguishment and interaction with a complex variety of interests as many of the earlier claims lodged with the Tribunal. There is a real prospect in these cases that determinations of native title will be possible.
The process upon which the National Native Title Tribunal and the people of Australia have embarked in relation to indigenous interests in country is one of historical importance. It is a process from which there is no turning back. If the Tribunal was to cease to exist and the Native Title Act 1993 be repealed, native title would continue to exist and the choice for resolution of native title issues would lie between litigation and negotiation. That is the choice which exists under the present system. Despite the publicly expressed impatience of some interests, there is a generally encouraging readiness of those directly involved to embark upon negotiation with a view to seeking agreed outcomes. As Aboriginal and non-Aboriginal interests accumulate experience in these matters, it can be expected that agreed outcomes will emerge and provide precedent and support for an acceleration of successful mediations. Global settlement of groups of applications may also be achieved through local or sub-regional or regional agreements about country. The Tribunal is encouraging the development of options for achieving such outcomes.
The year under report has been challenging, difficult and at times stressful
for Members and staff of the
Tribunal. Nevertheless, their commitment and
dedication has been exemplary. All are building up a unique accumulation of
experience
and expertise in dealing with these difficult issues. They have
shown patience, fortitude and a readiness to work, in the public
interest, well
beyond the normal call of duty. It is a pleasure and a privilege to work with
them.
Justice RS French
President
The purpose of the Tribunal is:
1. To facilitate the recognition of native title.
2. To promote just agreements about native title and the use of traditional Aboriginal and Torres Strait Islander lands and waters in ways that:
* Are fair, just, economical, informal and prompt;
* Take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders, and the interests of all other people affected by native title issues;
* Promote an informed discourse between Aboriginal and non-Aboriginal Australians.
On 24 and 25 October 1994, the Tribunal Members and staff took part in a strategic planning workshop to formulate a mission statement and key objectives for the Tribunal over the next 2-3 years. The workshop was facilitated by consultants from the Australian Institute of Management. The workshop agreed upon a mission statement and identified preliminary objectives for the Tribunal as a whole. These objectives were further developed in subsequent consultation with staff.
The objectives were refined by staff at a further planning workshop on 26 June 1995, conducted in-house. The objectives have been revised to take account of the changing environment within which the Tribunal operates.
These objectives are set out below. They are intended to reflect the statutory standards for the Tribunal's method of operating, and to give content to the mission statement. The Tribunal will continue to refine its objectives in the light of any changes to the Act, its own experience and feedback from user groups.
It is intended by the end of the current calendar year to develop specific business plans in each section of the Tribunal to provide a framework for carrying out the objectives.
Community and specific interest group understanding and acceptance of the Tribunal and its processes
* General community education policy.
* Community liaison activities - addresses to community groups by Tribunal Members and staff.
* Media briefings and interviews.
* Information columns for regional newspapers.
* Development and distribution of brochures and pamphlets.
* Tribunal newsletter.
* Provision of information in an accessible manner and form.
* Publication of discussion and information papers.
* Specific interest groups education policy.
* Addresses and presentations to Aboriginal representative groups and industry bodies.
* State, Territory and National Liaison Committee meetings.
* Pre-mediation meetings with affected interest groups.
Full, informed and effective participation by parties involved in Tribunal processes
* All items addressed under objective A above.
* Ready access by interested parties to case-specific information.
* Accurate information provided to parties promptly.
* Procedures of the Tribunal take into account constraints on participation of various groups.
* Identify ways to reduce costs to parties participating in Tribunal processes.
Understanding by Tribunal Members and staff of indigenous Australian culture and society
* Continuing program of cultural awareness training.
* Promote employment of indigenous staff at all levels of the Tribunal.
* Ensure that implementation of Australian Public Service policies and development of Tribunal policies takes account of indigenous and other cultural sensitivities.
Expertise in issues relating to Aboriginal land use, the law relating to native title, and applicable mediation techniques
* Induction procedures that ensure all incoming staff understand the role of the Tribunal and its functions.
* Staff development policy directed to understanding of native title, indigenous law and culture, and mediation.
* Regular staff workshops to exchange knowledge and ideas on native title issues.
* Analysis of effectiveness of mediation procedures.
* Effective dissemination of information about current developments within the Tribunal.
* Publication of papers relevant to aspects of native title.
Creative and flexible resolution of native title applications
* Development of a research program to identify elements of potential agreements by:
1. Identifying and proposing solutions to constraints on reaching agreements.
2. Interacting with other agencies to identify promising lines of research.
3. Coordinating workshops and training (with other agencies) to discuss novel solutions or approaches.
* Effective dissemination of the results of research through working groups consisting of industry and other bodies.
* Continuing liaison with Commonwealth, State, and Territory agencies to identify emerging issues.
* Identify ways in which the procedures of the Tribunal can be streamlined,
* Effective dissemination of agreements or processes which have been found to be successful or productive.
From
time to time, the Tribunal has issued policies relating to particular facets of
its operation in areas related to the mediation
and determination of native
title applications. During the reporting period, the Tribunal issued
the
following:
* A conflict of interest policy for Tribunal staff and Members.
* Assistance to applicants procedures.
* A community liaison policy.
The Conflict of Interest Policy was released in September 1994. It is attached at Appendix C. The aim of the conflict of interest policy is to avoid the perception or reality of any bias or partisanship in the way the Tribunal carries out its functions.
The policy provides that no Member or officer of the Tribunal will carry out work on any application in which that person has been involved prior to appointment to the Tribunal or to its staff. If a Member or officer has been involved with a representative Organisation, or party or prospective party to an application, she or he may not do work on that application if involved with it within six months prior to the lodging of the application.
If a conflict of interest, pecuniary or otherwise, is perceived in relation to
any Member or staff of the Tribunal, the Member or
officer should not do any
work in relation to the application. Interests which might give rise to a
conflict of interest include
an interest in relation to land or waters in an
area covered by the application, or shares in any company which is a party to
the
application. Tribunal Members and staff are requested to provide, to the
Registrar a list of past associations, involvements or any
other interests
which may give rise to the appearance or fact of a
conflict of interest.
The President may, at his discretion, authorise a person to do work in relation to an application notwithstanding that a past association is disclosed. No such authorisation was given during the reporting period. Conflict of interest is also covered in relation to Members in s. 122 of the Native Title Act 1993.
The Assistance to Applicants Procedure was issued on 14 March 1995. It sets guidelines for the discharge by the Registrar of her functions under s. 78 of the Act. That section provides that the Registrar is authorised to provide such assistance as the Registrar considers reasonable to applicants in preparing an application. The Assistance to Applicants Procedure is attached at Appendix D. The aims are as follows:
* To assist in the preparation of native title applications where such assistance is needed.
* To ensure that applications lodged with the Registrar meet the requirements of the Act and regulations.
* To ensure that applications are in a proper form and are accompanied by adequate information.
* To ensure that persons who are considering making applications are aware of the assistance that is available from the Registrar and to ensure that the resources available to providing assistance are directed according to need.
During the reporting period, Tribunal staff provided assistance to applicants in several ways. These included provision of information about how to lodge an application and explanations of the provisions of the Native Title Act and regulations relevant to the application. Applicants were provided with maps to help them determine areas which may be the subject of prior freehold grants, pastoral leases or other grants, and some land tenure history searches were conducted to enable applicants to refine their application before lodgment.
In other instances, Tribunal Case Managers visited applicants' communities to discuss native title processes and provide comment on draft applications provided by prospective applicants. Information was provided at community bush meetings to facilitate the resolution of traditional boundary issues.
Requests for assistance are likely to increase as Tribunal procedures become better known. Meetings with potential applicants are scheduled, where possible, to take advantage of any mediation meetings already scheduled in the area.
Arrangements were made in June 1995 with the Australian Surveying and Land Information Group (AUSLIG) to provide "negotiation maps" which identify freehold and other current tenures. The cost of these maps to the Tribunal is $285 each. These maps provide claimants with a basis on which to identify boundaries before lodging an application.
The Tribunal's Community Liaison Policy is intended to facilitate mediation by improving general community awareness of the native title process.
The Act requires the Tribunal to conduct mediation to seek agreements where applications for native title determinations are disputed. For this process to succeed, it is essential that participants have a broad understanding of the nature of native title, the relevant provisions of the Native Title Act and the Tribunal's procedures.
The policy is designed to:
* Inform Aboriginal and Torres Strait Islander people and the wider public about the native title claims process.
* Foster a positive understanding of the native title claims process and relevant interests that will engender a constructive approach to the mediation of claims.
* Assist applicants and potential applicants to manage their applications and publicise the process in a way that minimises the incidence of community responses based on fear, uncertainty, ignorance or prejudice.
The Tribunal's Community Liaison policy is set out at Appendix E.
The President published general procedures for applications for native title determination and compensation on 16 May 1994. Since then, the Tribunal has revised its general procedures and issued supplementary procedures to deal with particular aspects of its mediation and determination functions.
The Tribunal's general procedures were amended on 12 September 1994, and further amendments were made to those on 8 September 1995, as set out at Appendix F.
The general procedures were amended on 12 September 1994 to take account of issues raised in consultation with interest groups through the first round of State Liaison Committee meetings in all States in mid-1994. An appendix to the general procedures was issued on 30 August 1994 to set out guidelines for acceptance of applications over freehold land and over certain leasehold tenure. A further appendix outlining the Tribunal's guidelines for description of areas covered by native title determination applications was issued in December 1994. A further amendment to the general procedures was published on 8 September 1995.
Procedures in relation to the right to negotiate process (Subdivision B of the Native Title Act) under the future act regime were published by the President in June 1995.
The general procedures are intended to operate as guidelines and are subject to modification in the light of experience and submissions or suggestions from persons affected by the work of the Tribunal. The general procedures apply to applications for claimant and non-claimant determinations of native title, applications for the revocation or variation of an existing native title determination, and compensation applications.
Amendments made during the reporting period were intended to encourage greater specificity in applications and to set out administrative mechanisms for providing the general public with details of claimant applications prior to acceptance.
Map Specifications
The general procedures include desirable specifications for maps lodged with applications. This is intended to alleviate problems that arose with earlier applications that were accompanied by inadequate maps, which impeded the Tribunal's ability to advise the general public and interested parties of the exact location of the areas within those applications. The Tribunal has received comments that the map specifications listed in the general procedures are unduly onerous. It is emphasised that the map specifications are intended to operate only as guidelines.
Amendment of Applications
The amendment to the procedures also permitted applicants to amend their applications at any time prior to a decision on acceptance, and after acceptance by leave of the Registrar or a Member of the Tribunal before a determination is made. The amended procedures provide for freehold, leasehold and pastoral leasehold and mining tenements, to be identified to supplement information provided by applicants. The Registrar was authorised to commission land tenure history searches and to enter into arrangements directly with State and Territory Governments to obtain that information. The purpose of these amendments was to ensure that where possible, information concerning the tenure history and current interest status of land was available to the Tribunal and applicants prior to an acceptance decision.
Tenure Searches
Where native title applications were accepted without tenure searches, they could -- unbeknown to applicants or the Registrar -- include freehold or pastoral leasehold land. The Tribunal has commissioned tenure history searches pursuant to these procedures to provide information which may assist the mediation of native title applications and enable applicants, if they choose, to refine their application to exclude areas of freehold or other potentially extinguishing events.
The Tribunal maintained the view that there is no statutory obligation to undertake such searches. It did not undertake to conduct tenure history searches on all applications, and the Registrar was entitled to take into account the cost and the time involved to determine the scope and nature of any searches to be conducted. This approach was consistent with that adopted in the ruling on the Waanyi Peoples application, in which the President said on 15 September 1994 (129 ALR 100 at 116) that:
"A claim prima facie cannot be made out if at first sight or as a matter of first impression it could not succeed. ... The Registrar may, but is not obliged to, make enquires or receive information to determine whether it can be said at the outset that a claim could not be made out. These inquiries may include land tenure and land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective."
Dissemination of Information
The procedures were also amended to provide for information to be disseminated upon receipt of claimant, non-claimant and compensation applications to the following people and organisations:
* The Commonwealth Attorney-General's Department.
* The Secretary of the Parliamentary Joint Committee on Native Title
established under s. 204 of the
Native Title Act.
* Head Office and State Manager of the Aboriginal & Torres Strait Islander Commission in the relevant State or Territory.
* Any Aboriginal representative body in the area.
* The relevant State or Territory Government.
* Any local government authority within the area of the land or waters covered by the claim.
* The National Farmers Federation.
* Farmer or pastoralist organisations within the State or Territory.
* The Chamber of Mines in each of the States and Territories.
* The Australian Mining Industry Council.
* The Australian Petroleum and Exploration Industry Association.
* If forested areas are affected, the National Association of Forest Industries, Forest - Protection Society and relevant State timber industry association.
* If waters are affected, the National Fishing Industry Council and relevant State fishing industry body, if any.
* Where a national park is affected, the National Parks Association.
* Any other relevant specific industry association.
Information is disseminated to ensure that, as far as possible, industry bodies are aware when applications are lodged and that they receive a summary of the details.
Notification Process
The notification procedures now provide that upon acceptance of an application, notice of the acceptance decision and of any amendment to the application is sent to each of the bodies to whom information of lodgment was given. This is intended to ensure that a wide range of potential parties receive information about applications. The Tribunal also provides local government authorities with information about applications and maps for public display in council foyers etc.
The Community Liaison Policy supplements the notification process by providing for visits to application areas, where possible, to further explain Tribunal processes to the general public and provide information about nature and scope of applications.
Interested Parties
People who wish to become parties to an application are required by the procedures to specify the interest which may be affected by any determination. Persons who wish to become parties would ordinarily be treated as a party unless the Registrar refers to a Presidential Member the question of whether the interest of that person may be affected by a determination.
Acceptance Guidelines
The general procedures were supplemented on 30 August 1994 with guidelines concerning the acceptance of applications over freehold and pastoral leases. These guidelines were intended to clarify the position in relation to acceptance of applications over past and present leasehold interests other than mining leases. Applications over mining leases are dealt with on a case-by-case basis.
An application for a determination that native title exists over land which includes land which is or has been subject to a lease held from the Crown will not ordinarily be accepted if the lease confers or conferred exclusive possession, or the native title rights and interests being asserted are wider than any reservation contained in the lease in favour of Aboriginal or Torres Strait Islander people.
The guidelines also relate to applications including land subject to leases where the applicants can show that they have an arguable case for the proposition that the lease was invalid and had not been validated by either the Native Title Act or the equivalent provisions of the State or Territory law.
The guidelines also provide that applications may be accepted over land which has been the subject of a lease, whether created by a statute or otherwise, in relation to reservations not explicitly in favour of Aboriginal or Torres Strait Islander people, where the interests claimed are not wider than the reservation.
The guidelines state that each case will be considered on its own merits and that the approach taken by the Registrar at the point of acceptance does not indicate that any inference should be drawn that the Registrar or the Tribunal has formed the view that native title exists.
Mediation Strategy
The Tribunal issued a draft mediation strategy in November 1994 and circulated it among members of the State and National Liaison Committees. The strategy sets out some Tribunal approaches to mediation, particularly in relation to complex applications involving significant numbers of parties.
The mediation strategy dealt with the following issues:
* The desirability of conducting ex parte meetings and specific interest negotiations.
* Calling of plenary conferences.
* Strategies for managing mediation.
The mediation strategy drew on the Tribunal's experience in relation to its
"first round" of acceptance
decisions, which had been made in May 1994. Some
of these applications were characterised by large areas and numerous interested
parties.
Since the release of the mediation strategy, other types of
applications have involved land areas of varying sizes, and varying numbers
of
interested parties. Nevertheless, the mediation strategy's basic elements
remain as necessary ingredients of effective native
title mediation. The
mediation strategy's main
elements were:
* Progressive reduction of parties.
* Group representation of interests.
* Provision of time to consider options.
* Cultivation of broad community support for the process.
* The making of partial agreements to narrow issues in dispute.
* The use of team mediation where Members and Case Managers with particular skills in an area become involved as mediators as the need for specialist, information and advice arise.
* Preparation of options by the Tribunal.
* Maintaining confidentiality and a regime for protecting the integrity of mediation meetings.
* Management of media interest.
* Logistical arrangements sensitive to the parties' surroundings and cultural values.
The draft mediation strategy will be revised in the light of further Tribunal experience with the mediation of native title claims. It is attached at Appendix G.
Right to Negotiate Procedures
Draft right to negotiate procedures were released by the Tribunal for comment in August 1994. At that time, there had been little experience in negotiation where a Government proposed to undertake a future act such as the grant of a mining interest or the acquisition of an interest in land under a compulsory acquisition scheme.
Settled procedures were issued on 7 June 1995. The aim of these procedures is to provide a speedy and flexible method of dealing with the following processes:
* The giving of a notice by Government party of intention to do an act which attracts the right to negotiate.
* An application by a native title party objecting to the inclusion of a statement that an act is an act attracting the expedited procedure.
* A request by a negotiation party to the Tribunal to mediate in relation to the doing of the proposed act.
* An application by a negotiation party for a determination that a future act may or may not be done, or may be done subject to conditions.
The right to negotiate procedures are attached as Appendix H and the procedure with respect to right to negotiate applications is further discussed in Chapter 5.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/31.html