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by Graeme Neate
The Native Title Amendment Act 2007 (Cth) is part of a package of reforms aimed at providing more efficient and effective outcomes from the current native title system. The changes affect native title representative bodies and prescribed bodies corporate; many respondent parties to native title claims; the Federal Court (‘the Court’) and the National Native Title Tribunal (‘the Tribunal’).
These changes will be supplemented by other amendments to the Native Title Act 1993 (Cth) (‘the Act’) to be made by the Native Title Amendment (Technical Amendments) Bill 2007 (Cth), introduced into the House of Representatives on 29 March 2007. This article focuses primarily on the enacted reforms to the claims resolution process, and particularly those that affect the powers and functions of the Tribunal.
New provisions ensure that mediation cannot be conducted by both the Tribunal and the Federal Court at the same time.[2] To strengthen the presumption that mediation in native title proceedings should take place in the Tribunal, the general discretion of the Court[3] not to refer matters to the Tribunal for mediation has been removed, and other provisions have been amended.[4]
The Federal Court will continue to supervise the mediation process, and the Tribunal will work closely with the Court and the parties in prioritising and progressing the resolution of claims.
To help alleviate delays in the mediation of native title claimant applications, the Tribunal is able to direct a party to attend a mediation conference,[5] and, for the purposes of a conference, may direct a party to produce a document if that document may assist the parties to reach agreement on any of the matters in subsection 86A(1) or (2).[6]
Such powers could be used to direct that specified documents be provided by certain dates, or that nominated parties attend mediation conferences, for the purpose of giving effect to regional work plans endorsed by the Federal Court. This would build on a coordinated approach between the Court, the Tribunal and the parties.[7]
The Tribunal has additional functions to assist the mediation of claims, including the power to:
● hold inquiries in relation to a matter or issue relevant to the determination of native title;[8] and
review whether a native title claim group holds native title rights and interests to land or waters that are the subject of a native title claim.[9]
Those reforms will assist the Tribunal to take more control of the claims resolution process and focus parties on seeking negotiated outcomes.
The criteria for becoming a party to native title proceedings have been tightened[10] and there are other changes which could affect the role of some parties in mediation and in the determination of claimant applications.
If the Tribunal member presiding at a mediation conference considers that a party does not have a relevant interest in the proceeding, the member may refer to the Federal Court the question of whether they should cease to be a party to the proceeding.[11] This may occur, for example, if a claimant application has been amended to remove certain areas of land from the claim area and, as a consequence, some parties’ interests could no longer be said to be affected by a determination in the proceeding.[12]
Amendments to make it easier to obtain a consent determination over part of a native title application area mean that a determination may be made without the consent of people that do not hold the relevant registered proprietary interest in that determination area (such as parties with lesser interests in the determination area, and those parties who have an interest in the area covered by the application but outside the determination area).[13]
The additional powers and functions that come from the amendments will not alone expedite the resolution of native title claims by agreement. Important as the Tribunal and the Federal Court are to the operation of the native title system, it is the parties that determine whether, what and when any outcomes are agreed.
The native title scheme expressly favours the resolution of claims by agreement, however the Act and the structures created by it cannot compel agreement. To reach agreements, the parties to the proceedings need to be willing and able to participate productively and in a timely manner.
The recent amendments to the Act introduce measures directed at ensuring parties act responsibly by making it clear that each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.[14] The obligation to act in good faith will provide an incentive to improve behaviour and to focus attention on the seriousness of the process and the need for a committed approach with a spirit of goodwill.
One of the most significant changes for influencing the behaviour of parties may be the reforms to the funding of respondent parties. These reforms come in the form of administrative guidelines rather than legislative amendments.
The new ‘Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993’[15] set out financial assistance possibilities for native title inquiries, mediations and proceedings; or for those entering into an Indigenous Land Use Agreement (‘ILUA’) or an agreement about rights under subsection 44B(1) of the Act, where the people seeking assistance are not members of the native title claim group concerned.[16] The aim of revising these guidelines is to encourage the resolution of native title matters through agreement-making rather than litigation. That aim is assisted by the conditions on the making of grants and on reporting requirements.
Various amendments are aimed at formalising and facilitating better communication between the Tribunal and the Federal Court, thus improving coordination between the institutions.[17]
The kinds of reports that the Tribunal makes to the Court have been expanded to include regional mediation progress reports;[18] regional work plans;[19] reports concerning a failure to comply with a direction of the presiding member;[20] and a report on failure to act in good faith in relation to a mediation.[21] Judges are now required to take into account reports from the Tribunal.[22]
The development of regional work plans and regional mediation progress reports have the potential to substantially improve how claimant applications progress. The amendments to the Act formalise what has been happening in parts of the country[23] where the Tribunal actively works with representative bodies and parties to prioritise work on claims, optimise the allocation of scarce resources, and develop longer term prioritisation and planning.
The Tribunal has a right to appear before the Federal Court in various circumstances, primarily at a hearing in relation to a matter that is currently before the Tribunal for mediation.[24] The President of the Tribunal can give directions about which persons are to appear on behalf of the Tribunal.[25]
The Native Title Registrar is required to apply the registration test to groups of claimant applications that are not currently on the Register of Native Title Claims (and a few that are on the Register). Particular focus will be on whether each application satisfies all of the merit conditions in section 190B of the Act. These provisions are aimed at removing native title applications from the system that do not meet (and are not amended to meet) the merit requirements of the registration test and there is no other reason why the application should not be dismissed.[26]
This will mean that some claimant applications will be amended to comply with the registration test and therefore be in better shape for substantive mediation. Others will be removed from the system, with potential for better prepared claims to be made in the future. The process will divert some of the resources of the Registrar in the next year or so, as well as resources of the native title claim groups whose claims are affected, their representatives, and potentially the Federal Court.
The history of long and expensive litigation informs the need for a more rigorous agreement-making regime. Properly administered, and with the constructive engagement of key parties and institutions, the amended Act has the potential to significantly improve the operation of the native title system, and offers the best chance of achieving improvements in performance within the current legislative framework.
Graeme Neate is the President of the National Native Title Tribunal.
[1] A much longer paper on this topic, ‘New Powers and Functions of the National Native Title Tribunal: An Overview and Analysis’, is available at <www.nntt.gov.au/metacard/speeches.html>.
[2] Native Title Act 1993 (Cth) s86B(6). For the basis of this change see G Hiley and K Levy, Native Title Claims Resolution Review (2006), Recommendation 1, paras 4.28-4.32.
[3] Previously Native Title Act 1993 (Cth) s86B(2). The subsection has been repealed.
[4] Native Title Act 1993 (Cth) ss86B(1), (3) and (4), 86C.
[5] Native Title Act 1993 (Cth) s136B(1A).
[6] Native Title Act 1993 (Cth) s136CA.
[7] If the Tribunal reports to the Court that a direction has not been complied with, the Court may make orders in similar terms to the directions: Native Title Act 1993 (Cth) ss86D(3), 136G(3B).
[8] See primarily Native Title Act 1993 (Cth) ss138A-138G.
[9] Native Title Act 1993 (Cth) ss136GC-136GE.
[10] Native Title Act 1993 (Cth) s84(3) and (5).
[11] Native Title Act 1993 (Cth) s136DA(1).
[12] Native Title Act 1993 (Cth) s136DA(6).
[13] Native Title Act 1993 (Cth) s87A.
[14] Native Title Act 1993 (Cth) s136B(4).
[15] Commonwealth Government, ‘Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993’ (2006). These guidelines commenced 1 January 2007.
[16] Section 183 of the Native Title Act 1993 (Cth) prohibits the Attorney-General from providing assistance to government Ministers, native title holders or claimants, and claimants for compensation in relation to native title. Their funding is dealt with under Div 4, Pt 11 of the Act.
[17] See G Hiley and K Levy, above n 2, Recommendations 5-8, paras 4.43-4.56.
[18] Native Title Act 1993 (Cth) ss86E(2)(a), 136G(2A), 136G(3A)(a).
[19] Native Title Act 1993 (Cth) ss86E(2)(b), 136G(2A), 136G(3A)(b).
[20] Native Title Act 1993 (Cth) ss136G(3B), 86D(3).
[21] Native Title Act 1993 (Cth) s136GA(4).
[22] Native Title Act 1993 (Cth) ss 86C(5), 94B.
[23] See, eg, Franks v Western Australia [2006] FCA 1811.
[24] Native Title Act 1993 (Cth) s86BA.
[25] Native Title Act 1993 (Cth) s123(1)(ca).
[26] Native Title Act 1993 (Cth) ss190B, 190D(1B), (6) and (7).
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2007/19.html