Bartlett, Richard H. --- "Undermining the National Native Title Tribunal -- Waanyi No.1 and 2" [1995] AboriginalLawB 28; (1995) 3(73) Aboriginal Law Bulletin 14

• Undermining The National Native Title Tribunal – Waanyi No.1 And 2
• Introduction
• Registering A Claim
• Waanyi No 1
• Waanyi No 2
• Showing A "Clear And Plain Intention"
• Conclusion

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Undermining the National Native Title Tribunal – Waanyi No.1 and 2

Richard H Bartlett

Introduction

The Waanyi case involves the Century Mine in Queensland and a dispute between the traditional owners of the land, the State, Century Zinc Co and CRA. The decision of the National Native Title Tribunal (NNTT) afforded a surprising victory to the miners. The victory was surprising because:

• it was declared before the claim was even registered;
• it was declared by the NNTT, a tribunal especially designed to recognise the "unique character" of native title and provide for their "just and proper ascertainment".

The victory was achieved when the President failed to apply those principles of the common law which presume against the extinguishment of native title.

Registering a claim

The June 1993 Discussion Paper on the High Court decision on native title contemplated a "system of specialised tribunals for the registration and determination of claims - and for conciliation" which "could provide a quicker, more efficient, less adversarial and more systematic process than reliance on the courts ... sensitive to Aboriginal and Torres Strait Islander cultural concerns and with as little technicality and formality as possible". (Pp 32-38.) The Native Title Act 1993 (Cth) ("the NTA") put such a system in place making extensive provision for negotiation and mediation with respect to proposed grants of interests over native title land (and see preamble). But the duty to negotiate is limited to "native title parties". In order to be a native title party a native title claim must be registered within two months of notice of the proposed grant being given (s29,30).

If the Registrar does not accept a claim within that period the proposed grant may be made. It will override native title without any negotiation or mediation (s28). Acceptance of a claim then is the critical step in the path to negotiation and mediation. It is the threshold to the NNTT processes for determinations of native title. The Registrar must accept the claim unless, inter alia, she is of the opinion that prima facie the claim cannot be made out.

Waanyi No 1

In Waanyi No 1 (September 1993) the President ruled that a prima facie claim is made out when "evidence exists or can be obtained which is capable of establishing each of the elements of native title". This was then qualified by the view that on questions of law "it is not sufficient to conclude that the question is arguable and that on that basis a prima facie claim exists. If there is an issue of law which in the view of the Presidential Member is fatal to the application that should be resolved at the threshold" (p3l). It. my opinion this interpretation is wrong. It is inconsistent with the language of s63 and all authoritative interpretations of "prima facie" and makes nonsense of determinations on unopposed applications under s70. More importantly it grossly undermines the intended function of the NNTT.

Native title claims involve a myriad of issues uncertain in law and fact. Final determinations at a stage prior to negotiation reduce possibilities for compromise, severely weight the process against the claimant and encourage litigious obstruction by third parties. The ruling turns the Tribunal proceedings into a court providing for determination of preliminary matters. Such is not the Tribunal's function. Significantly none of the authorities cited by the President or relied upon by the mining companies support the Tribunal's interpretation. It is also at odds with the authority which seems most apposite: Re Paulette (1973) 6 WWR 97 (NWTSCt). In that case the Dene people of the Canadian Northwest Territories sought to file a caveat for unextinguished native title over 400,000 square miles. The court upheld that right. Morrow J commented:

Because of the nature of these proceedings I do not consider it necessary to consider the evidence in depth. As I see my function it is to look for a prima facie situation or a situation which may promise the possibility of a claim. At such point, if reached, I must then stop. It will be for some other tribunal to make the in depth analysis of the evidence, to rework the same ground, and to make the final assessment.

The court found a prima facie case despite the existence of a treaty under which the Dene purported to surrender their title. The court considered that the Dene had a prima facie case - it was arguable - and the result has been the negotiation of comprehensive regional agreements over the region. By contrast the decision of the President in Waanyi No I discourages negotiation. It is also, of course, inconsistent with the language of the Act.

The proposals released by the President on March 20, 1995 seek to correct the problem that the decision in Waanyi No 1 has brought about. It would be better if the misinterpretation of s63 was corrected along with the guidelines that were based upon it. The ruling is reminiscent of the conservative and restrictive approach adopted in the early years of the Indian Claims Commission in the United States. A subsequent Chairman of the Commission commented that it focused on a "narrow" interpretation of the law and failed to "actively encourage the settlement of the claims". He added, "The Commission has chosen to sit as a court and as a result, the Congressional mandate has been utterly frustrated." (J Vance, "The Congressional Mandate and the Indian Claims Commission" (1968-69) 45 N Dak L Rev 313,335).

Waanyi No 2

The error in Waanyi No I is accentuated by the conclusion reached by the President in Waanyi No 2. Despite having a manifestly arguable case the Tribunal denied acceptance of the claim. In Waanyi No 2, the President held that native title had been extinguished by:

(i) the grant of a pastoral lease where none issued, but "had a lease issued ... it is accepted on all sides that I should assume ... that it would have contained a reservation" of free access to the Aboriginal inhabitants for the purposes of sustenance. Such a reservation was part of the standard form used in leases issued at that time.

The President was prepared to uphold the validity of a lease where none in fact issued, but not to imply a term which was part of the standard form of leases issued at that time.

(ii) the grant of a new pastoral lease from January 1, 1905 until the proclamation of a reserve in June 1907.

The President's interpretation of the Land Acts 1897 and 1902 appears wrong. The proper interpretation would seem to be that the original lease was extended in July 1904; the new lease did not issue until November 1907 and when it did it was back dated to July 1904 (s8(4), Land Act 1902) excluding the claimed area from that time.

Showing a "clear and plain intention"

Totally absent from the President's determination in Waanyi No 2 is any reference to the principle that the onus of showing that a "clear and plain" intention to extinguish lies upon those asserting extinguishment. The weight of common law authority was clear prior to Waanyi No 2 and it has since been affirmed in the High Court decision in State of Western Australia v The Commonwealth of March 16, 1995. It is doubtful that the circumstances contemplated by the history of land tenure surrounding Lawn Hill Reserve can discharge an onus of showing a "clear and plain intention" to extinguish native title. The President criticises the moral shortcomings of the principles of native title. It might be much more appropriate to question the President's application of the principles requesting extinguishment.

Conclusion

The decisions in Waanyi No I and No 2 have resulted in a refusal to even register a claim which the common law under its processes might well ultimately sustain. The requirement of showing a prima facie case has been transmuted into a need to succeed upon all important questions of law before a claim is even registered. In this particular case, the threshold of registration has been raised even higher because of the failure to acknowledge and apply the onus with respect to the "clear and plain intention" to extinguish.

The interpretation of "prima facie issue" in section 63 adopted by the President of the NNTT is fundamentally wrong and severely undermines the functioning of the NNTT and the protection accorded native title by the NTA. Many of the problems attributed to the NTA by the President in the Proposals dated March 14 1995 are more properly a problem of erroneous interpretation. The Tribunal "has chosen to sit as a court".