Mediation
Native Title
4.1 The first Outline document (p.37) proposed a change in the Tribunal's
role in native title matters. It would retain the status of an arbitral
body for the right to negotiate process, but its main role in native title
and compensation claims would be as a mediator.
4.2 Item 39 of the Amendment Bill proposes the insertion of s.86A. It
provides at s.86A(3) for the referral of applications by the Federal Court
to the Tribunal; it also defines the purposes of mediation through the
Tribunal.
4.3 The purpose of mediation in proceedings not involving compensation
is set out at s.86A(1); at s.86A(2) that for proceedings involving compensation
is defined. In each case the first matter listed on which the parties
may be assisted to reach agreement is whether native title exists. Justice
French has commented:
The expressed purpose of mediation in proceedings not involving
compensation applications is defined in s.86A(1) and (2). [sic] The
purpose of mediation thus expressed does not allow for the possibility
of a mediated outcome which would lead to a withdrawal or discontinuance
of the application. For example, a State Government which is a party
to a native title application might be prepared to negotiate with the
applicants an agreement involving the provision of a range of benefits,
including land rights, in consideration of the applicants discontinuing
their application. In some such cases, governments and applicants may
be content to negotiate directly without the assistance of the Tribunal.
In other cases, however, the assistance of the Tribunal may be necessary
if only to establish a negotiating framework acceptable to both parties
which will potentially lead to a resolution of the native title application.
[1]
4.4 Does the Act, then, need to articulate the option of withdrawal or
discontinuance of the application? If that point is reached during mediation,
it may be reported by the Tribunal to the Federal Court which can respond
pursuant to s.86A(9) of the Amendment Bill:
The Court may, of its own motion, at any time in a proceeding,
order that mediation is to cease in relation to the whole or a part
of the proceeding if the Court considers that:
(a) any further mediation will be unnecessary in relation to
the whole or that part; or
(b) the parties will be unable to reach agreement on, or on
facts relevant to, any of the matters set out in subsection (1) or
(2) in relation to the whole or that part.
Alternatively, a party to the mediation may do so pursuant to s.86A(10):
A party to a proceeding may, at any time after 3 months after
the start of mediation, apply to the Court for an order that mediation
cease in relation to the whole of the proceeding or a part of the proceeding.
The approach then to be taken would depend on the aspirations of the
parties. One option is to negotiate an agreement outside of the regime
of the Act. The President's concern seems to be that the Act should provide
a mediation role for the Tribunal in the latter circumstance.
4.5 This is an important issue and goes to the question of the proper
role of the Tribunal. Justice French has elaborated:
In proceedings before the Court, other than native title proceedings,
a very high percentage of applications is resolved by agreements involving
a discontinuance. To effectively prohibit the Tribunal from assisting
such negotiations imposes a limitation on the range of resolutions available
to parties through its processes. This is also at odds with the general
consensus reached between indigenous and industry interests through
the Reconciliation Council process that the Act should be providing
more rather than less support for entry into agreements that may resolve
actual or potential native title applications without native title determinations.
[2]
4.6 Several important questions are raised by the President's view. They
include:
- Should all native title claims be processed through a native title
regime of law, court and tribunal?
- If not, what would be the status of the native title recognised in
agreements outside of the statutory process?
- If not, what scope is there for confusion about the status of agreements
reached through the regime compared with those outside it?
- If not, how would an agreement outside of that regime be recognised
as a native title agreement?
- If not, what would be the incentive for Government to provide enough
resources for the Tribunal to cover mediation/negotiation outside of
the regime?
- If not, what justification is there to involve a body (the Tribunal)
funded to mediate native title agreements in the negotiation of agreements
that may resolve actual or potential native title applications without
native title determinations?
4.7 There is considerable scope within which these questions may be answered
but the essential view advocated in this report is as follows:
- For a range of reasons native title agreements should be negotiated
through the native title regime.
- It is desirable to have a settled and established status for native
title even though the content of that native title may vary from
case to case.
- Registration of native title holders is necessary in their own
interests and for the benefit of others.
- The regime can provide certainty for dealings by non-native title
holders with native title holders.
- Native title recognition of 'country' should always involve Government,
the state having an interest by virtue of the Constitution; the
involvement of Government necessitates a statutory approach.
- Obversely, for a range of reasons it can be undesirable for 'actual
or potential' native title agreements to be negotiated outside the native
title regime.
- Lack of statutory status to the process can depreciate the value
of native title.
- There may be no certainty of registration of native title without
a statutory scheme.
- Without a statutory regime there is consequent potential for fraudulent/inappropriate
agreements concerning future acts.
- In any event, the National Native Title Tribunal is established pursuant
to the Native Title Act 1993 whose objects centre on native title,
the first object being (s.3(a)) to provide for the recognition and protection
of native title.
- And registered native title claims under the regime should receive
priority in mediation by the Tribunal.
4.8 On this basis, the amendments pursuant to the proposed s.86A are
supported. In summary, those amendments provide for:
- the primary matter for consideration in mediation is whether native
title exists (subsections 1 and 2);
- flexibility of referrals to mediation (subsections 4 and 8);
- the Court to make an order that there be no mediation where mediation
would not be appropriate (5, 6 and 7); and
- the Court may terminate mediation where further mediation is either
unnecessary or would not be conclusive (9) or where cessation was requested
by a party after 3 months (10, 11 and 12).
Non-Native Title
4.9 It is important to emphasise the distinction between native title
agreements and land use agreements which, although involving Indigenous
persons as parties, need not be native title agreements. The Committee
heard views in public hearings which praised two particular agreements
- the May 1996 Interim Agreement between the Rubibi Working Group and
the Shire of Broome, and the February 1996 Heads of Agreement [3] between the Cape York Land Council, the
Cattlemen's Union and the Australian Conservation Foundation. The Heads
of Agreement purports to be the first step towards a s.21 agreement. [4]
4.10 Paragraph 1 of the Interim Agreement acknowledges 'Aboriginal people'
as the original inhabitants of the Broome region and that 'it remains
their traditional country'; similarly, paragraph 2 acknowledges the colonisation
of Broome by non-Aboriginal people. The Cape York Heads of Agreement is
like a native title agreement in acknowledging 'Aboriginal people' as
the original inhabitants 'who are entitled by their traditional law to
their traditional customs and culture, including access to areas of traditional
significance' (paragraph 1). And paragraph 9 provides that 'The Aboriginal
people agree to exercise any native title rights in a way that will not
interfere with the rights of pastoralists'. Further, paragraph 10 acknowledges
the continuing right of traditional owners. However, neither agreement
names the Aboriginal people who are acknowledged: no family, clan or tribal
names are mentioned.
4.11 If it is not specified in the agreements who the Aboriginal persons
are, then it cannot be determined what is the nature of the traditional
law, customs and culture that is acknowledged. Not knowing these details,
there is no information in the agreements indicating what would be the
content of native title. For these reasons neither the Interim Agreement
nor the Heads of Agreement is a native title agreement. Indeed, the backgrounder
to the Heads of Agreement states:
There needs to be a defined process to facilitate negotiations
with Aboriginal interests without having to lodge a native title claim
with the Native Title Tribunal. [5]
4.12 Similarly, the Committee was advised of the agreement reached between
the Miriuwung and Gajerrong Land Council and 'Ord Hydro':
We could have stalled every agreement that we have negotiated
on heritage matters, on the waters matters, on the traditional use of
closed areas or land under quarantine or on the land use agreements
with the private and the public sector, because in each of those agreements,
when those negotiations started off, there was a clause in the recital
of those agreements which says that you must recognise that we have
native title. As the negotiations went on, that was the first clause
we agreed to have deleted and be replaced by a clause which said that
we do not waive any of our native title rights and we do not expect
the company to recognise it. It was just left open. [6]
Clearly, this agreement also is not a native title agreement. Any agreements
that leave open the question of native title can be agreements of several
kinds, including commercial; but they cannot amount to native title agreements.
4.13 Whatever the merits of individual non-native title land use agreements,
and whatever encouragement they took from the native title process, they
are not agreements within the present scope of the Native Title Act 1993.
The mediation work of the Tribunal pursuant to the proposed s.86A is to
reach agreement whether native title exists. In accepting the High Court's
judgement in Mabo (No2) the Parliament intended this to be one of its
major responses. In the interests of native title holders the Tribunal
should concentrate on this primary duty.
4.14 For these reasons, the Federal Court's role pursuant to the proposed
86A(9) is strongly endorsed. That is, the Federal Court should have the
power to order mediation to cease where the parties will be unable to
reach agreement on native title as articulated in 86A(1) and (2).
4.15 Further, the mediation of native title claims should be expedited
pursuant to s.109(1). [7] They will
not be expedited if the Tribunal is significantly distracted by non-native
title land use agreement matters. And there is clear evidence that aspirations
that might have originated in the acknowledgment of native title are expanding
well beyond it. The Aboriginal Legal Service of Western Australia has
advised the Committee:
Certainly I see that the land is just a lever that really opens
up the door for political, social and economic rights as determined
by Mabo, which dispelled the myth of terra nullius. I think that most
Aboriginal people, particularly the powerful movers and shakers, understand
that native title is only a lever that opens up a whole ambit of special
rights that are granted under the dispelling of terra nullius. That,
in a nutshell, is how I feel about it.
... Right through to being judged by your peers and having no
Aboriginal people in courts - the whole lot. It goes down to the actual
invasion of the country and how Aboriginal law and Aboriginal ways of
doing things were not taken into account and were incorporated into
a new country. Mabo has dispelled all of that. It opens up a huge picture
of rights, and it will not be long before Aboriginal people are looking
at that particular part of the Native Title Act and going for the wider
implications under Mabo.
... It could mean the wider sense of self-determination, sovereignty,
right through to local and regional agreements to manage resources at
a local level. It has major implications. [8]
4.16 It is not within the native title process that the pursuit of these
aspirations is to be sought. [9] The
process under s.86A would concentrate the activities of the Federal Court
and the Tribunal on native title matters. The Committee emphasises that
that should be so in the interests of all those who seek recognition of
their native title rights.
4.17 Nevertheless, the Committee accepts the Tribunal President's view
that the Act should provide sufficient flexibility to enable the resolution
of native title mediations in circumstances where that entailed agreement
on a non-native title outcome. Accordingly, the proposed s.86BA of the
Exposure Draft (p.4) is endorsed on the basis that this may assist the
resolution of native title applications filed in the Federal Court and
expedite the court's work on native title; it provides:
Court Order
(1) If:
(a) a party to a proceeding in relation to an application applies
at any stage in the proceeding to the Federal Court for an order under
this section; and
(b) any other party whom the Court considers relevant agrees to the
Court making an order under this section on the application;
the Court may make such order as it considers appropriate to
assist in achieving the aim mentioned in subsection (2).
Agreement to settle application
(2) The aim is that the relevant parties should agree to action
that will result in any one or more of the following:
(a) the application being withdrawn or amended; or
(b) the parties to the proceeding being varied; or
(c) any other thing being done in relation to the application.
The agreement may involve matters other than native title.
Assistance by NNTT
(3) If:
the Court may also request the NNTT to do such things as it considers
appropriate to assist the parties to reach the agreement.
[Table of Contents]
Indigenous Land Use Agreements (ILUA)
4.18 Further, as this chapter has argued, it is undesirable for agreements
that may have a potential native title association to be agreed outside
of the native title regime. ILUAs are agreements that may have a native
title connection. The second Outline document (p.14) defines such agreements
as:
an agreement in writing under which persons agree that one or
more future acts in a particular area may be done subject to conditions
to be complied with by one or more of the persons.
And the Exposure Draft (s.25B) defines an ILUA as:
an agreement in writing under which:
(a) a representative Aboriginal/Torres Strait Islander body
for an area; or
(b) one or more persons claiming to hold native title in relation
to land or waters in an area;
agree with one or more persons that one or more future acts affecting
any native title in relation to land or waters in the whole or part
of the area may be done subject to conditions to be complied with by
one or more of the persons.
In that it refers to native title, this definition is preferred.
4.19 Part 4 of the Exposure Draft amendments provides for the registration
of ILUAs by the Native Title Tribunal Registrar subject to certain conditions
(s.25C, D and E). Such agreements under s.25B would involve either a native
title representative body or one or more persons claiming to hold native
title. For the benefit of Indigenous people and in the interests of expediting
development, these amendments are endorsed.
Role of the President
4.20 By virtue of the proposed amendments to the roles of the Tribunal
and the Federal Court, the functions of the Tribunal President (and Deputy
President) would change. Presidential members would cease to have a function
in the acceptance of applications pursuant to s.63 of the Act. Although
the Tribunal would continue to have a determination role concerning non-agreed
future act applications, the Court would determine native title and compensation
applications. Under the proposed s.86A(13) questions of law and fact which
arise in a mediation being conducted by the Tribunal may be referred to
the Federal Court. The Court would retain overall control of the process.
4.21 Accordingly, the justification for requiring presidential members
of the Tribunal to be either judges of the Federal Court or former judges
now does not prevail. The first Outline document (p.35) advises:
Another proposed amendment which recognises the changing role
of the NNTT and would provide greater flexibility is to permit suitably
qualified lawyers to be appointed as presidential members of the NNTT.
At present, only judges of the Federal Court and former judges may be
appointed as presidential members.
4.22 This view is accepted. That is, the proposal to expand the scope
of persons qualified to be either President or Deputy President is sound;
the Amendment Bill provides at item 130 for persons enrolled as legal
practitioners for five years to be eligible. However, the amendment as
proposed is not endorsed. Rather than adding a further (and lesser) qualification
for presidential members, the Amendment Bill should propose this as a
substitution and omit the existing requirements for presidential members
to have judicial experience. Of course, judges could still be appointed
to the office; it simply makes no sense to continue with a reference to
judges where any person enrolled as a legal practitioner for five years
qualifies for appointment.
Recommendation 8
| That the proposed item 130 be amended to provide
for the omission of reference to judges at s.110, table, row dealing
with presidential members. That the words 'is, and' be deleted
from the addition so as not to preclude judges whose names may
have been removed from the practitioners' list upon their judicial
appointment. That the proposed amendment be otherwise adopted.
|
Role of Members
4.23 In Chapter 4 of its 1994/95 annual report the Tribunal discussed
its conflict of interest policy. The aim of the policy is:
to avoid the perception or reality of any bias or partisanship
in the way the Tribunal carries out its functions.
Paragraph 1.1 of the policy states:
It is essential to the success of the Tribunal that it be and
be seen to be independent, impartial and professional in the discharge
of its functions under the Native Title Act 1993.
4.24 The Committee has been advised that a member of the Tribunal could
be in breach of this policy. Mr Peter Poynton, a lawyer, asked:
How can a member purport to be impartial and yet run a consultancy
out of a major national law firm that represents parties in many claims?
[10]
This was a reference to Mr Rick Farley. [11]
4.25 Mr Farley [12] has advised the
Committee that he has not acted as a consultant in any native title claims
although he was involved in the Cape York Land Use Heads of Agreement;
he has also confirmed that he has never provided advice on particular
native title claims either to the legal firm to which he is a consultant
nor to any of its clients. And Mr Farley advised that he would not be
renewing his consultancy contract with the legal firm.
4.26 Mr Farley's assurances are accepted. Nevertheless, there are in
principle two major difficulties that arise where a member of the Tribunal
conducts a consultancy in native title related matters. First, there is
the problem identified by Mr Poynton of avoiding the perception of partisanship.
Although it may be possible in theory for a Tribunal member's duties to
be quarantined from any matters or persons with which his consultancy
or legal firm has contact, it would be difficult to ensure that in practice.
Certainly the risk of a perception of bias, one target of the Tribunal's
conflict of interest policy, could not be avoided.
4.27 Second, and of equal concern, is the possibility that a member's
consultancy could benefit from the fact that he is known to be a Tribunal
member: there is a significant risk that he (or firms with which he is
associated) could benefit commercially from the perception that he has
valuable inside expertise, if not influence. For both of these reasons
it would not be proper for anyone to maintain a consultancy in native
title and accept appointment as a Tribunal member (or any other Tribunal
engagement). Any Tribunal members or staff currently in that situation
should resign either from the Tribunal or from their other appointments.
Recommendation 9
| That the following amendment to the Native Title
Act 1993 be adopted:
Section 111
Add:
(3) Persons conducting consultancies in matters related to native
title, or employed by companies, firms or partnerships accepting
work in that field, are not eligible for appointment, or must
cease such activity upon appointment.
|
[Table of Contents]
Footnotes
[1] French J, Response to Native Title Amendment
Bill 1996, p.12 (see Appendix 3 of this report).
[2] ibid.
[3] Evidence, pp.1647-1651.
[4] Evidence, pp.1645, 1653.
[5] Native Title Report July 1995 - June
1996, p.12.
[6] Evidence, p.2137.
[7] 'The Tribunal must pursue the objective
of carrying out its functions in a fair, just, economical, informed and
prompt way.'
[8] Evidence, pp. 2440-2441.
[9] Notably, in Coe v Commonwealth CLS 1993
HC 80 Mason C J struck out a statement of claim described as a 'sovereignty
claim':
Mabo (No 2) is entirely at odds with the notion that sovereignty adverse
to the Crown resides in the Aboriginal people of Australia.
[10] Evidence, p.1785.
[11] Evidence, p.1794.
[12] Letter to Committee Secretary dated 21
October 1996.
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