Speeches
Native Title Representative Bodies Conference
Plus ca change, plus c’est la meme chose?- The 2007 Amendments to the Native Title Act
Justice Robert French
8 June 2007
1 It is not always easy to detect progress in Australia’s dealings with its indigenous people. It requires a
long view back and a long
view forward. Sometimes the view is not clear.
2 Forty years ago, in 1967, the Australian people
amended the Constitution. Today almost every media outlet and many
commentators mistake what that amendment did. It did not confer a single right
on, nor lift a single burden from indigenous people. It simply expanded the
power that the Commonwealth Parliament already
had, under s 51(xxxvi) of the
Constitution, to make laws for the people of any race so it would cover
Aboriginal people and Torres Strait Islanders. The great triumph
of the
referendum was that its purpose was beneficial and that it elicited from the
people of Australia a powerful expression
of goodwill directed to its first
inhabitants. But despite the purpose of the amendment, the expanded power it seems
can
be exercised to the advantage or disadvantage of its subjects. [1]
3 Thirty six years separated the 1967 amendment
from the enactment of the Native Title Act 1993 (Cth). That 36 years
saw the failure of the Milirrpum Peoples’ claim for recognition of their
traditional ownership in the
Supreme Court in the Northern Territory.[2] It saw the reaction to that
failure in the establishment of the Woodward Royal Commission and the enactment
of the Aboriginal Land Rights (Northern Territory) Act 1976. It
saw numerous cases taken to the High Court as the Northern Territory and
traditional owners litigated over land rights
claims under that Act.[3] Through that litigation the
High Court was repeatedly exposed to concepts of traditional ownership and the
essential elements
of the relationship between indigenous peoples and their
country described by Brennan J in one such case as “primarily a spiritual
affair rather than a bundle of rights”.[4]
4 In that 36 years Eddie Mabo began his epic
litigation in 1982 and ten years later, on a day he did not live
to see, the
High Court held that the common law of Australia could recognise native title.[5]
5 The 36 years that elapsed between the 1967
referendum and the enactment of the Native Title Act saw a failure to
enact comprehensive national land rights legislation. It also saw a failure to
enact such legislation in
Western Australia despite the recommendations of a
Land Rights Inquiry which the State Government had commissioned. Had a
national land rights scheme, based upon the expanded race power, been enacted
the common law of native title might well have
been relegated, beneficially, to
a far less significant role in the recognition of traditional ownership of
country. The
Mabo decision did not unveil a judge-made comprehensive
land rights scheme of the kind that the Commonwealth Parliament could have
enacted. The rules for the recognition of native title set out in the judgment
were conditional, uncertain and difficult
to satisfy. They laid a heavy burden
on those who invoked them and on all who were involved in their application.
It was
clear from the day the decision was given that native title litigation
would impose such human and other costs that some alternative
mechanism for the
resolution of claims would be necessary.
6 Thirty six years after the 1967 amendment the Native
Title Act was enacted in reliance upon the race power. It provided, among
other things, for a pathway to recognition less difficult than
that which Eddie
Mabo had had to follow. The Preamble to the Act made that clear:
A special procedure
needs to be available for the just and proper ascertainment of native title
rights and interests which
will ensure that, if possible, this is done by
conciliation and, if not, in a manner that has due regard to their unique
character …
Government should,
where appropriate, facilitate negotiation on a regional basis between the
parties concerned in relation
to:
(a) claims to land, or aspirations
in relation to land, by Aboriginal people and Torres Strait Islanders;
(b) proposals for the use of such
land for economic purposes.
The Act provided for mediation by the National Native Title Tribunal
(the Tribunal) as a first and primary process for the resolution
of native
title claims. It provided also for a litigious pathway to determine claims
which could not be resolved by negotiation.
7 Since the Native Title Act was enacted
there have been 67 determinations that native title exists. Twenty of those
have resulted from litigation. Around
Australia there are 538 applications for
native title determinations pending in the Federal Court. There are 11
compensation
applications and 36 applications for determinations that native
title does not exist.
8 The period of operation of the Native Title
Act between 1993 and 1998 was affected by general uncertainty over
important legal issues, resistance to the whole idea of native
title by some
governments and industry groups and difficulties between and within some
indigenous groups reflected in numerous
overlapping claims. The future act
process which provides for negotiation and arbitration of proposals by
governments to
grant mining tenements over areas covered by registered native
title claims or otherwise to acquire native title rights and interests
for the
benefit of third parties, imposed additional pressures on applicants for native
title determinations. While their
applications were pending such applicants
were involved in negotiations and arbitral processes concerning what they said
was their country, as they tried to protect its cultural values and to derive
what they saw as just benefits from its use by
others.
9 Since the Native Title Act was enacted
there have been a number of significant cases in the High Court and in the
Federal Court which have elaborated
upon the Mabo principles and
provisions of the Act which have affected their application. The essential
nature of the process created
by those first rules and the burdens and costs
they impose have not been greatly ameliorated over the years. There are an
increasing number of mediated determinations but they still involve long and
costly investigations and negotiation. Absent
a national land rights statute,
the rules for the determination and definition of native title rights set out
in the Native Title Act cannot shake off the difficulties of their
origins in a common law judgment.
10 Between 1993 and 1998 the Tribunal was the
exclusive custodian of the mediation process for which the Act
provided. In
1998 the Act was amended so that all applications which until then had been
commenced in the Tribunal were
commenced in the Federal Court. All
applications pending in the Tribunal became proceedings in the Court. The
Court was
required, unless it ordered otherwise, to refer every matter to the
Tribunal for mediation.[6]
The Court could also order that mediation cease.[7]
It could conduct its own alternative dispute resolution processes under powers
conferred by the Federal Court of Australia Act 1976 and the rules under
that Act. In some cases it did so. But the Native Title Act made it
clear that Tribunal-based mediation was the primary dispute resolution
mechanism contemplated by the Parliament.
An attempt by Western Australia at
one time to argue that the acquisition of connection evidence was a pre-condition
to mediation
was rejected by the Court.[8]
The exchange of information was seen as an essential part of mediation. There
was no principled basis upon which information
exchange could be quarantined
out of the Tribunal mediation process.
11 The transformation of native title applications
in the Tribunal to court proceedings, referred to the Tribunal
but subject to
Court supervision, was necessary for constitutional reasons. A Tribunal
consent determination of native title
for which the 1993 Act provided could not
validly be registered as a judgment of the Court.[9] The transfer of all native
title claims into the Court was also desirable because it made clear that
Tribunal mediation
had the authority of the Court behind it and, to some
degree, could be supported by orders of the Court.[10] There was also the capacity
for the Tribunal or the parties to ask the Court to determine questions of fact
or law important
to the mediation process although this never happened.
12 Importantly a system evolved in the Court of
placing all matters in mediation in a particular State or part
of a State under
the supervision of a Provisional Docket Judge who would review them from time
to time and receive reports
from the Tribunal about their prospects. Where
mediation was not making any progress and was not likely to, the matter could
be referred to a “substantive docket judge”, the idea being that he or she
would see the matter through to trial. The practice
was not uniform across Australia. In New South Wales, for a time all cases were allocated to substantive docket
judges from
shortly after filing.
13 Another practice that evolved was the
development of regional management of claims. Groups of claims from
the same
region in a State were reviewed at the same time, in the light of work plans
and priorities proposed by the applicants,
their representative body and the
State Government. The Tribunal began to produce regional reports so that the
judge, on
a regional case management review, could adopt and support by Court orders
appropriate timetables. In some places it took a
more active role in the
development of some of its own ADR procedures using case conferences presided
over by a Registrar.
These practices, while they were more sophisticated than
those which had existed previously, could not escape the labour intensive
character of native title proceedings even when entirely focussed on
mediation. In each case there was a need for an authorisation
process by the
native title claimant group, the gathering of connection information, the
limited number of anthropologists
available to do the work and the resource
limitations of representative bodies.
14 The amendments to the Native Title Act effected by the Native Title Amendment Act 2007 relevant to claims
resolution can be viewed in this historical context. They represent the
government and the parliament’s
response to the report of the Claims Resolution
Review which was undertaken by Mr Graham Hiley QC and Mr Ken Levy in 2005. They
are intended to speed up the resolution of claims by conferring on the
Tribunal more authority and legal tools in relation
to mediation. Important
features of the amendments relevant to mediation are:
1. Section 86B(6) which provides that while a matter
is in mediation by the Tribunal no aspect of the proceedings is to be mediated
under
the Federal Court of Australia Act.
2. Section 86BA which gives the Tribunal a right of
appearance in the Court at a hearing that relates to any matter currently
before
the Tribunal for mediation. The right of appearance is for the purpose
of assisting the Court.
3. Section 86E(2) which authorises the Court to
request the Tribunal to provide, for particular areas, a regional mediation
progress report
and a regional work plan.
4. Section 87A which facilitates determinations over
part of an area.
5. Section 94B which requires the Court to take into
account mediation reports, regional mediation progress reports and regional
work
plans provided to it.
6. Section 136B(1) under which the Tribunal’s
presiding member may direct a person to attend at a conference.
7. Section 136B(4) which requires parties and their
representatives to act in good faith in relation to the conduct of the
mediation.
8. Section 136CA which allows a presiding member of
the Tribunal to direct that a party produce a document in its possession,
custody
or control.
9. Section 136DA under which a question about whether
a party should be dismissed can be referred to the Court on the basis that the
person
no longer has a relevant interest.
10. Section 136GA under which the Tribunal can report
the failure of a person to act in good faith to a variety of persons including
to
the funding bodies and the Federal Court. The Act is silent on what the
Court is to do with such a report.
11. Section 136GB where the Tribunal considers that a
Government party or its representative did not act in good faith it may include
that
failure in its annual report.
12. Section 136GC to 136GE authorise a Tribunal member
to conduct a review on whether a native title claim group holds native title
rights and interests
in the relevant areas. This is a kind of early neutral
evaluation process. It does not involve determinations by the Tribunal
of
native title rights and interests.
13. Section 138A-138G. These provide a much broader
power to the Tribunal to conduct an inquiry “in relation to a matter or an
issue relevant
to the determination of native title under s 225”.
These new provisions may all be regarded as intended to enhance the
powers and effectiveness of the Tribunal in the conduct of
mediation
proceedings. They do not affect the constitutional distinction between the
functions of the Court and those of
the Tribunal. They do not alter the
essential character of the native title proceedings as proceedings in the Court
and
subject to its supervision and control. Nor do they overcome the
inescapable burdens and costs associated with the application
of the Mabo rules as transmogrified by the Native Title Act. In their effect upon
the role of the Tribunal and the Court the amendments represent a partial
return to the pre 1998
Native Title Act in that the Tribunal is again given
exclusive authority in relation to mediation while mediation is on foot.
15 Reference should also be made to two important
new provisions which, while not relating specifically to the
mediation process,
have an impact on the disposition of certain classes of application. Section
94C mandates dismissal by the Court of certain classes of application for
native title determinations which are lodged in response
to future act notices
when the question whether the future act can be done is resolved in some way.
The obligation to dismiss
however becomes an obligation not to dismiss where
there are compelling reasons not to do so. There is also a new provision
for
dismissal of claims by the Court under s 190D where the Registrar of Native
Title refuses their registration on merit grounds under s 190B.
16 How some of these powers and obligations will be
interpreted and applied by the Court will be a matter for
particular judges in
particular cases. The Court has, however, recently reviewed its management of
native title proceedings
having regard to the effect of the amendments on the
institutional relationship between the Court and the Tribunal.
17 The Chief Justice of the Court, on 8 June 2007,
issued a Notice to Practitioners relating to the conduct of
native title
proceedings in the Federal Court. The Notice reflects a change in the
provisional docket/substantive docket
system to one in which cases in mediation
will generally be managed by a designated Native Title List Judge assigned to a
particular region. Matters referred for trial after mediation has been
terminated will be assigned to a trial judge. In each
Registry one or more
judges, designated Native Title List Judges, will manage first instance native
title matters. They
will be assisted by existing Native Title Registrars. The
Native Title List Judge for Western Australia is French J; for South
Australia
and the Northern Territory, Mansfield J; for Victoria and Tasmania, North J;
for New South Wales and the ACT, Moore
J and for Queensland, Dowsett, Spender,
Kiefel and Greenwood JJ. Dowsett J also acts as a co-ordinating judge of the
Native
Title List in Queensland.
18 There will be greater emphasis on the regional
management of native title cases with a view to allowing their
progress to be
coordinated and streamlined across a region or regions. The Native Title List
Judge may conduct regional
case management conferences in conjunction with any
trial judge’s allocated native title cases in the region. The object of
the
management of the list by the Native Title List Judge is to ensure that groups
of applications within a particular region
can be reviewed together regularly
and that there is a specific and credible mediation timetable on a case
specific and/or
regional basis prepared and complied with. The objective of
the Native Title List Judge will also be to pursue the timely resolution
of
cases which are in mediation.
19 The Native Title List Judges and Native Title
Registrars may conduct case management conferences with the
Tribunal and the
parties to applications within a particular region to identify cases that
should proceed to trial with priority.
Cases may be given priority if they can
function as lead cases within a group of claims or for a region. By resolving
legal
or factual questions of general application, such matters may provide a
basis for consent determinations or negotiated agreements
in other matters within
the region. As a general rule a case will be allocated to a trial judge only
once it has actively
progressed into trial.
20 When mediation before the Tribunal has ceased, a
trial judge may give consideration to case management measures
to assist in the
progress of the case. These may include the appointment of an expert to assist
the Court, the referral
of a case to a form of ADR such as mediation or a
compulsory conference of experts.
21 In those cases which have been previously
allocated to substantive docket judges and on which there is little
prospect of
progress to trial within the foreseeable future, the judges will be invited to
review the case in order to identify
whether it is better to have it sent back
to the relevant Native Title List Judge. That decision will be a matter for
each
judge after hearing submissions from the parties.
22 From the point of view of many practitioners,
not a great deal will change so far as the management of the
native title list
is concerned. Native title claims which are in mediation are regularly
reviewed in regional groups. Recently
the Tribunal has been submitting
regional reports and proposed work plans to the Court with a view to obtaining
directions
from the Court to ensure that ensuing mediation is able to occur
within a structured and Court supported timetable.
23 The essential character of native title
litigation is such that it imposes burdens in terms of both financial
and human
resources on many of the parties involved. To that extent there is a limit upon
the degree to which expeditious
resolution is possible. However, with the
amendments there are some new legal tools available to the Tribunal and,
indeed,
to the parties. Creatively and appropriately applied, these should be
able to assist a more efficient and logical approach to
mediation of claims.
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