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Hayes, Paul --- "National Native Title Tribunal: Effective Mediator or Bureaucratic Albatross? A User's Perspective" [2002] IndigLawB 40; (2002) 5(18) Indigenous Law Bulletin 4

National Native Title Tribunal: Effective Mediator or Bureaucratic Albatross? A User’s Perspective

by Paul Hayes

The National Native Title Tribunal (‘the NNTT’) performs a range of functions under the Native Title Act 1993 (‘the NTA’).[1] This paper focuses on the mediation functions of the NNTT.[2] It considers how effective the NNTT has been in carrying out those functions and asks whether the NNTT’s role as a mediator is consistent with its other functions.[3]

The NTA encourages parties to mediate native title claims to reach consent determinations, and establishes the NNTT as the mediating body. The Federal Court usually refers all native title claims at first instance to mediation by the NNTT.[4] The mediation functions of the NNTT are carried out under the auspices of the presiding Member with the assistance of relevant case management staff.

The effectiveness of the NNTT as a mediator varies greatly depending on the particular Member who has carriage of the matter.[5] However, to the extent that generalisations can be made, the track record of the NNTT in mediating claims suggests that many of its Members and staff are ill equipped to effectively carry out their mediation functions.[6] There are a number of specific areas of constructive criticism that might be made in relation to the NNTT’s mediation functions.

Impartiality

All too often, NNTT mediations involve:

This inefficiency results in part from misplaced concern for the requirement of impartiality. While a mediator does not have an adjudicative role nor powers of compulsion, that does not mean that they should simply engage in pleasantries with parties and not use their position to press parties to progress matters.

While it is important to understand what obligations impartiality positively imposes, it is also of some import to note what impartiality does not demand. It does not prevent the giving of frank advice from time to time where it is warranted. Nor does it demand that a mediator only ever tell the parties what they want to hear nor encourage mediators to avoid difficult questions which might cause offence.

An example of these points occurred during the mediation of claims in the Torres Strait.[7] One party to the mediation, which had no interest in the matter that would justify its continuation as a party, was seeking to use the native title processes to generate non- Indigenous rights that did not otherwise exist in law. All other parties had settled upon the terms of a consent determination. The presiding NNTT Member was unable or unwilling to frankly advise the party of the untenable nature of its stance. When the claimant group commenced a strike out motion, the NNTT went to great lengths to advise against taking this course of action as it had the potential to upset the ‘good naturedness’ of the negotiations.

At a directions hearing, the Federal Court was happy to render the advice to the party that the NNTT seemed incapable of rendering. The Federal Court triggered its own mediation jurisdiction and referred the matter to the relevant Deputy District Registrar who then explained to the party that its position was unsustainable. The party was told it was facing the prospect of being struck out if it did not rapidly reach agreement with the claimant group. The matter then settled very quickly. The Federal Court was able to make frank comment both from the bench and through the Registry’s mediation without sacrificing its impartiality.

Mediation and other functions

It is also important to note that people who are unhappy with decisions of the NNTT in the performance of its other functions, may have some difficulty accepting the NNTT as an impartial mediator. For example the NNTT is responsible for applying the registration test to applications for determinations of native title.[8] Due to the novelty of the law in this area, the application of the registration test by the NNTT has been an issue of some controversy.[9] To its credit, the NNTT has sought to address the issue by ensuring that NNTT officers with carriage of mediation have little involvement in the application of the registration test.[10] However, this action has not always been successful in addressing a perception of bias. In a number of instances, a controversial registration decision has had a significant and retardant effect upon the Member’s capacity to progress mediation.

It is noted that this issue does not necessarily amount to criticism of the NNTT but is more criticism of the legislative structure that vests adjudicative powers in a mediating body. This dual role is problematic.

Another difficulty has arisen when the NNTT has had a dual mediation role. An example is where the NNTT is mediating both intra-Indigenous issues on a claim and an agreement arising from right to negotiate dealings.[11] When the NNTT does not make a clear and obvious distinction between the two processes, its intimate involvement in the conclusion of one matter in controversial circumstances, clearly has the potential to adversely impact upon its mediation services in the other. This has most recently occurred in the context of a western New South Wales claim where the same NNTT officers were involved both in the primary mediation of intra-Indigenous issues relating to the progress of the claim, and also in the mediation of a mining agreement. The controversies involved in the mining agreement had prejudicial implications for the NNTT’s role in successfully progressing the mediation between various intra-Indigenous parties.

Innovative mediation

The NNTT adopts a fairly formulistic approach to mediation, and has shown a reluctance to respond innovatively to the varied situations that come before it. In one intra-Indigenous matter, a native title representative body (‘NTRB’)[12] sought the assistance of the NNTT to engage an anthropologist, at the cost of the NTRB. One of the Indigenous parties had a concern about the NTRB being the principal contractor of the anthropologist. The NTRB, with the consent of both the Indigenous parties, sought to address that concern by inviting the NNTT to perform that role. However, the NNTT’s approach appeared to be that the novelty of the suggestion almost created a prima facie assumption that the NNTT should not perform this role. An excessively narrow and legalistic approach was taken to the matter even though numerous provisions of the NTA enable the NNTT to perform that role.[13] This legalistic approach prevents the NNTT from imaginatively and flexibly dealing with difficulties that arise.

Is a mediation service necessary?

In the marketplace, most negotiations proceed and succeed without the need for a mediating body. Usually the assistance of an independent mediator is only sought if the parties hit a bottleneck or adopt unnecessarily extreme positions. There is no reason why this approach cannot apply in the native title context.[14] This is especially the case where all parties involved are skilled in the negotiation process and represented by capable people.

Admittedly, usually the Federal Court has referred the matter to the NNTT,[15] and the NNTT must therefore keep an eye on the progress of negotiations and report to the Federal Court as directed. It is therefore important that the NNTT is kept informed of the progress the parties are making. However, there is no inherent reason why the NNTT must be more involved in a process that is otherwise proceeding smoothly. Often the meetings and conferences convened serve no purpose other than to inform the NNTT of what is going on. On other occasions, its convening of meetings has actually been detrimental to the progress of negotiations. The NNTT processes take on a life of their own, rather than being a positive contribution to difficult negotiations.

The NNTT’s role as a mediator often duplicates functions performed by other bodies. Such unnecessary duplication is a poor use of limited resources. In intra-Indigenous mediations the relevant NTRB is often better equipped to perform the mediation role. NTRBs are Indigenous bodies and will generally have a sounder understanding of the context of intra-Indigenous issues. NTRBs also have professional expertise such as in-house anthropologists. In the case of Indigenous/non-Indigenous disputes, mediation could be just as or more effectively carried out under the auspices of the Federal Court mediation services.[16]

It should be noted that the majority of states and territories now have a range of land rights schemes in place, but none of these schemes has an equivalent of the NNTT. This raises the question of whether the scheme established by the NTA benefits from the NNTT performing such a formal mediation role.

Confidentiality

Confidentiality is another concept that is important in mediation but misunderstood by the NNTT. While the NTA has quite clear provisions as to confidentiality in mediation proceedings,[17] the NNTT in many mediations has exhibited an unhelpful obsession with the issue in circumstances where the parties themselves were not particularly concerned in keeping the negotiations confidential. An obvious example has been where the wider community has been keenly interested in the progress of a native title claim. Unnecessary concern for confidentiality has created an equally unnecessary public perception of secrecy. So often in the public mind, secrecy equals conspiracy.

In the intra-Indigenous context, the NNTT has occasionally fallen into the trap of seeking to exclude Indigenous persons with legitimate interests on the basis of a faction within the group promoting tenuous theories about the ‘true traditional owners’. Confidentiality was given as the reason why such persons should be excluded from meetings.

The obligations of confidentiality and the purposes served by those obligations need to be carefully understood by all parties. In instances where no purpose is served (and this is surprisingly often) and it is appropriate for the information to be disseminated, the parties should be encouraged to break free of confidentiality constraints.

Misunderstandings about confidentiality have also infected the substance of the NNTT’s progress reports to the Federal Court. Such reports are an invaluable tool for the NNTT to keep the Federal Court informed of the progress of the matter. Regrettably, the authors of such reports have often construed the constraints of confidentiality as obliging them to reduce their reports to vacuous puffery. Such reports do little to assist the Federal Court to make informed directions regarding the case management of a matter.

Membership of the NNTT — Creating a culture

Some generalisations can be made about the 14 current members of the NNTT. The great majority are non-Indigenous. The great majority are male. The great majority are lawyers by training. The great majority are from the big end of town. The early days of the NNTT, which had a number of imaginative appointments, seem to have passed us by. It is possible that the present make-up of the membership of the NNTT has engendered a culture that is, in the author’s view, excessively legalistic and bureaucratic. This culture manifests itself in numerous ways often antithetic to the appropriate recognition of native title rights and interests. An example of this is the NNTT’s initial Guidelines on Acceptance of Expedited Procedure Applications released in May 2001. These guidelines outlined an approach to expedited procedures certainly not required by the NTA and arguably contrary to it.[18]

Conclusion

The NNTT has not turned out to be the body it was intended to be. In part, this was forced upon it by the Brandy decision,[19] and the NTA amendments,[20] which transferred all native title proceedings to the Federal Court. As a result of this reduction in the NNTT’s role we are left with an unnecessarily bureaucratic and often gratuitous mediation body, whose mediation services could be performed by other more appropriate bodies. Appropriate legislative reform would see the removal of the mediation functions of the NNTT, and appropriate resourcing of NTRBs and the Federal Court to provide mediation as and when it is needed.

The NNTT could be a much more streamlined body performing more focused functions such as the application of registration tests, an educative role, and the provision of central mapping and research services. Some of its existing adjudicative roles might also remain.

A more bold reform would be to establish an inquisitorial Native Title Court to deal with all claims from lodgement to mediation to contested hearing. This approach would free up the Federal Court to deal with areas of law which are part of its more traditional jurisdiction. It would also recognise the unique nature of native title as a discrete area of law and would prevent a considerable amount of the duplication that presently occurs. There are precedents for courts with such specific jurisdictions, such as the Family Court of Australia. Given the problems with the current regime, perhaps a bold move is the best way forward.

Paul Hayes is a solicitor who has been working in native title for several years in the Northern Territory and Queensland, and now New South Wales. The views expressed in this article are his personal views and not those of any organisation with which he might be associated.


[1] Native Title Act 1993 (Cth) (‘the NTA’) s 108.

[2] NTA s 108(1A) and Part 6, Division 4A.

[3] I have been mindful not to breach the confidentiality of past or present native title mediations in writing this article. Accordingly, while I have given some specific examples, I have not given specific examples when I thought it would be inappropriate.

[4] NTA s 86B(1).

[5] For example, of the eight consent determinations in the Torres Strait, the NNTT’s role varied greatly from substantial and positive (Kaurareg People v State of Queensland [2001] FCA 657; Saibai People v State of Queensland [1999] FCA 158) to minimalist and counter-productive (Masig People v State of Queensland [2000] FCA 1067; Dauan People v State of Queensland [2000] FCA 1064).

[6] A scientific statistical analysis of successful outcomes, be they consent determinations or Indigenous Land Use Agreements (‘ILUAs’), is difficult given the varying role that the NNTT may have played in any particular outcome. Any generic observations about the lack of consent determinations or ILUAs to date would be unfair on the NNTT, as the lack of outcomes may often be attributable to the negotiating parties rather than the mediator.

[7] These mediations eventually resulted in consent determinations over several islands in the Torres Strait, made on 6 and 7 July 2000.

[8] NTA ss 190A-190C.

[9] Some also argue that the controversy is due to the inconsistent approach the NNTT has taken in the application of the registration test. See Greg McIntyre, David Ritter and Paul Sheiner ‘Administrative Avalanche; The Application of the Registration Test under the Native Title Act 1993 (Cth)’ [1999] IndigLawB 31; (1999) 4(20) Indigenous Law Bulletin 8.

[10] In practice the registration test is applied by a delegate of the Registrar.

[11] NTA Part 2, Division 3, Sub-Division P; and see NTA s 31(3) for NNTT involvement.

[12] NTA Part 11.

[13] NTA ss 108 (2), 131A and 132. This matter was resolved with the Indigenous parties eventually agreeing to the NTRB being the principal contractor of the anthropologist.

[14] Useful comment in support of this point can be found in the Northern Land Council, Submission to the Parliamentary Joint Committee on Native Title and Aboriginal and Torres Strait Islander Land Fund Inquiry into Indigenous Land Use Agreements (July 2001).

[15] NTA s 86B(1).

[16] Although it can be argued that the administration of native title matters by the Federal Court has not been unproblematic.

[17] For example, see NTA ss 136A(4), 136E and 136F.

[18] This issue is dealt with in further detail in Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2001) 16-24.

[19] Brandy v Human Rights and Equal Opportunities Commission [1995] HCA 10; (1995) 183 CLR 245.

[20] Native Title Amendment Act 1998 (Cth) usually referred to by the misnomer ‘the Wik Amendments’.


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