The Brandy Amendments
3.1 It is essential for the operation of the Native Title Act that all
determinations of native title and compensation be valid and enforceable.
The outcome of the Brandy case required amendments to the Native Title
Act to remove the Tribunal's ostensible power to make approved determinations
of native title and compensation, and vest it in the Federal Court. These
amendments were first proposed in the Keating Government's Native Title
Amendment Bill 1995 and are supported.
3.2 However, one concern in relation to the proposal that native title
claims be filed in the Federal Court (rather than the Tribunal, as is
presently the case) is that they would be subject to strike-out proceedings
under the Court's general powers. [1]
The bill should ensure that respondents cannot initiate strike-out proceedings
until after mediation has been bypassed by all parties or terminated.
Minority Recommendation 2
| That appropriate amendments be made to the Federal
Court of Australia Act 1976 to ensure that a native title claimant
application cannot be summarily dismissed or stayed upon the application
of a person other than the applicant until mediation pursuant to s.86A
has been bypassed or terminated. |
Footnotes
[1] Order 20 rule 2 of the Federal Court Rules
deals with the summary stay or dismissal of proceedings.
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