Mediation
Section 86BA
5.1 The proposed s.86BA [1] provides
that the Federal Court may, where relevant parties agree, make orders
to assist the parties to reach an agreement that proceedings be withdrawn
(among other things); this may resolve the matter on a pragmatic basis
without determining the area's native title status. It is also envisaged
that the Tribunal may assist the parties to reach such an agreement. This
principle is supported.
Section 86A
5.2 However, the proposed s.86A(1) and (2) would require the Federal
Court to assess the suitability of a native title or compensation application
for mediation by reference to whether mediation would be likely to assist
the parties to reach agreement on some or all of the factual elements
of the native title or compensation application. For example, subsection
(1) provides that if the application in question is for a native title
determination, the purpose of mediation is to assist the parties to reach
agreement on some or all of the following:
- whether native title exists in relation to the area of land or waters
covered by the application;
- if it exists:
- who holds it;
- whether the native title rights and interests confer possession,
occupation, use and enjoyment of the land or waters on its holders
to the exclusion of all others; and
- if the native title rights and interests do not confer such exclusive
rights - the nature of any native title rights and interests; and
- the nature and extent of any other interests in relation to the
land or waters that may affect the native title rights and interests.
[2]
5.3 The Federal Court must order that there be no mediation in relation
to the whole or any part of proceedings if:
- mediation will be unnecessary; or
- there is no likelihood of the parties being able to reach an agreement
relevant to whether any of the factual elements of the application referred
to in s.86A(1) or (2) can be made out. [3]
Further, the Court may, of its own motion, order that mediation cease
if:
- any further mediation will be unnecessary in relation to the whole
or that part; or
- there is no likelihood of the parties being able to reach an agreement
on the question of whether any of the factual elements of the application
referred to in s.86A(1) and (2) can be made out. [4]
Where a party makes an application (after three months of mediation)
for an order that mediation cease, the Court must order that mediation
cease unless the Court is satisfied that mediation is likely to be successful
in enabling the parties to reach such an agreement. [5]
5.4 Section 86A of the Native Title Amendment Bill 1996 enshrines a narrow
approach to mediation, and it is inconsistent with the more flexible approach
to the Tribunal's role adopted in proposed s.86BA and in the Indigenous
Land Use Agreement amendments. It seeks to confine the matters discussed
in mediation to the matters that would be litigated in Court. Instead,
mediation should seek to reconcile the interests of the parties rather
than force them into entrenched positions and complex legal negotiations
over their perceived rights. As the proposed s.86BA and the Indigenous
Land Use Agreement amendments appear to recognise, an application may
be resolved without agreement on the existence of native title and its
incidents. For example, native title claimants may consent to withdraw
an application and allow development on the basis of financial or site-maintenance
undertakings. The negotiation parties, and the Tribunal, should not be
deterred from seeking such a resolution; the proposed s.86A in the Native
Title Amendment Bill 1996 would reward a party for 'digging its heals
in' and refusing to negotiate. [6]
5.5 By contrast, the s.86A proposed in the Keating Government's Native
Title Amendment Bill 1995 does not seek to limit the purposes of mediation.
It is also a simpler provision and philosophically more consistent with
s.86BA of the Native Title Amendment Bill 1996 and the proposed Indigenous
Land Use Agreement amendments. Section 86A of the 1995 Amendment Bill
proposed:
Federal Court must refer proceedings to mediation
(1) Unless an order is made under subsection (4), the Federal
Court must refer every application under section 61 to the NNTT for
the purpose of mediation as soon as practicable after the end of the
period specified in the notice under section 66.
Whole or part of proceedings may be referred at any
time
(2) In addition, the Federal Court may, at any time in proceedings,
refer the whole or a part of the proceedings to the NNTT for the purpose
of mediation.
Referral even if parties not determined
(3) A referral may be made even if all of the parties to the
proceedings have not been determined.
Party may seek no mediation or cessation of mediation
(4) A party to the proceedings may apply to the Federal Court
for an order that there be no mediation, or that mediation cease, in
relation to the whole of the proceedings or a part of the proceedings.
Referral unless mediation will be unsuccessful or
unnecessary
(5) The Federal Court is not to order that there be no mediation,
or that mediation cease, unless the Court considers that any mediation
will be unsuccessful or unnecessary.
NNTT's views on success of mediation
(6) Before making an order that there be no mediation or that
mediation cease, the Federal Court must request the NNTT to provide
a report setting out the NNTT's views on whether mediation would result
in agreement or partial agreement within a reasonable time.
Federal Court may determine law or fact
(7) The Federal Court may, at any time during mediation, determine
a question of law or fact that is referred to it by the NNTT.
Minority Recommendation 5
| That the proposed Item 39 (s.86A) of the Amendment
Bill 1996 not be adopted. That s.86A as proposed in the Native Title
Amendment Bill 1995 be considered for adoption. |
Members of the Tribunal and Conflicts of Interest: Recommendation 9
in the Majority Report
5.6 We have reservations about Recommendation 9 in the majority report.
Native title practitioners or consultants are usually appropriately qualified
persons to perform the important duties that membership entails. Only
a limited number of candidates possess the necessary experience and community
standing.
5.7 The appointment of practitioners to similar positions or bodies is
not unprecedented. Arbitrators are routinely appointed from the ranks
of legal practitioners to adjudicate civil causes where parties wish to
avoid the delays of the court system [7];
and other specialist tribunals may utilise the expertise of part-time
members who practise as lawyers or with some other kind of speciality
in the relevant field. [8] The general
rule with such bodies is that a member must not deal with a particular
matter in which it is likely that there would be actual bias or a reasonable
suspicion or apprehension that the member might not bring an impartial
or unprejudiced mind to the parties or the issues. [9]
It is relevant that the Tribunal's conflict of interest policy provides
(inter alia):
1.1 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.
. . .
1.7 No member of the Tribunal nor member of staff of the Tribunal
shall carry out any work on any application in respect of which that
person has been involved prior to his or her appointment to the Tribunal
or its staff. For the purposes of this paragraph, a prior involvement
in relation to applications includes the preparation of the application,
the provision of any advice to any person in relation to the application,
whether before or after it has been lodged with the Tribunal, and the
gathering of evidence or information in relation to such application.
1.8 No member of the Tribunal nor member of staff of the Tribunal
shall do work on an application if, within the period of six months
prior to the lodging of an application, that person has carried out
any work in relation to native title matters for a group, person or
organisation which is or represents a party or prospective party to
the application.
1.9.1 No member of the Tribunal nor member of the staff of the
Tribunal shall do any work in relation to an application in respect
of which that person has any interest, pecuniary or otherwise, that
could conflict with the proper performance of that person's functions
in relation to the application.
1.9.2 Without limiting the generality of the foregoing, a conflict
of interests may arise if a person has:
(i) an interest in or in relation to land or waters in an area
covered by the application:
(ii) shares or options in any company which is a party to the
application or has an interest in or in relation to the land or waters
covered by the application.
1.10 Each member of the Tribunal and member of the staff of the
Tribunal is requested to provide to the Registrar and to the President
of the Tribunal a list confidential to the Registrar and the President
of past associations or involvements and of interests which may give
rise to the appearance or fact of a conflict of interest in relation
to any application.
1.11 Notwithstanding the preceding paragraphs of this policy,
a member of the staff of the Tribunal may participate in the work of
the Tribunal in respect of any application where:
- that person has disclosed to the parties any past associations
or present interests of a kind that may give rise to the appearance
or fact of any conflict of interest and;
- the President directs that the person may do work in relation
to the application.
The proposed Recommendation 9 requires further consideration, with particular
reference to the way in which similar tribunals manage the appearance
or actuality of bias. Without further evidence we cannot agree with the
Recommendation at this stage.
Minority Recommendation 6
| That Recommendation 9 of the majority report not be
adopted. |
[Table of Contents]
Footnotes
[1] Clause 13 on p.4 of the Exposure Draft.
[2] Native Title Amendment Bill 1996, Schedule
1, Item 39 (proposed s.86A(1)).
[3] Native Title Amendment Bill 1996, Schedule
1, Item 39 (proposed s.86A(6)) as it would be amended by clauses 8 and
9 of the Exposure Draft.
[4] Native Title Amendment Bill 1996, Schedule
1, Item 39 (proposed s.86A(9)) as it would be amended by clause 10 of
the Exposure Draft.
[5] Native Title Amendment Bill 1996, Schedule
1, Item 39 (proposed s.86A(10) and (11)) as the latter would be amended
by clause 11 of the Exposure Draft.
[6] Dodson M, op. cit., p.86
[7] See, for example, s.5(5) of the Arbitration
(Civil Actions) Act 1983 (NSW).
[8] See, for example, ss.252, 253, 264 and 265
of the Mental Health Act 1990 (NSW) and s.7 of the Commercial
Tribunal Act 1984 (NSW).
[9] R v. Watson; Ex Parte Armstrong (1976)
136 CLR 288; Livesey v. New South Wales Bar Association (1983)
151 CLR 288, 293-4.
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