RESPONSE TO NATIVE TITLE AMENDMENT BILL 1996
Justice R.S. French
President
National Native Title Tribunal
August 1996
Introduction
In certain respects the Bill goes further, and in other respects not
as far as the changes foreshadowed in the Government's Discussion Paper,
our response to which was furnished on 18 June 1996. The comments offered
in this Response go to technical, procedural and resource issues. They
do not address any effect of the amendments upon the balance of interests
under the Native Title Act as it presently stands.
Provision - Section 4
Section 4 of the Act summarises the content of the Act by way of a table.
The proposed amendment will insert a reference to the new Division 4A
which contains provisions dealing with mediation conferences:
Comment
The amendment is consequential upon substantive amendments - no comment
is necessary.
Provision - Section 12
This section, which was found to be invalid by the High Court, is repealed.
Comment
No comment.
Provision - Sections 13(1), 13(2), 13(4)(a) and 13(6)(a)
Section 13 is amended to provide for applications to be lodged in the
Federal Court directly, rather than with the Registrar of the Tribunal.
Comment
The amendments deal with the effects of the decision of the High Court
in Brandy v. Human Rights and Equal Opportunity Commission (1994-95) 183
CLR 245 and the proposals contained in the Tribunal Discussion Paper of
March 1995 that, as a matter of policy, native title proceedings should
be commenced in the Federal Court rather than in the Tribunal. These amendments
are supported.
Provision - Section 21A
This section secures the validity of future acts covered by s.21 agreements
with determined native title holders even if a later determination is
made over the same area in respect of another group.
Comment
No comment.
Provision - Sections 24A, 24B and 24C
These provisions relate to agreements made between governments, native
title holders and registered native title claimants in relation to future
acts to which the right to negotiate does not apply. Future acts the subject
of such agreements are valid. Future acts notified which attract no registered
native title claims are also validated. Compensation may be payable.
Comment
Notification of a proposed future act under s.24A(3) or s.24B(3) is
given to the National Native Title Tribunal but not apparently to any
recognised State or Territory body. This should be compared with s.29(2)(e)
in relation to the right to negotiate which requires notice to be given
to the relevant arbitral body which will be the State body if one has
been established.
It is to be noted that under s.24A(8) either the National Native Title
Tribunal or the relevant State or Territory body can be asked to mediate.
Section 24A(9) requires a copy of an agreement made under s.24A to
be given to the National Native Title Tribunal. There is also a requirement
under s.193(4) for inclusion in the Register of s.21 agreements notified
to the Registrar. There should be a corresponding obligation to provide
copies of such agreements to the Registrar.
Provision - Section 25
This provision amends the application of the future act rules with respect
to the renewal of mining, commercial, agricultural, residential or pastoral
leases and variations of the uses permitted under pastoral leases.
Comment
There is no comment on this amendment.
Provisions - Sections 28(1)(a) and 30(a) and (b)
These provisions would extend the period within which applicants for
native title determinations may be registered to acquire the right to
negotiate. The proposed extension is from 2 months to 3 months after publication
of a notice of a proposed future act under s.29.
Comment
This period should be extendable to take account of the time necessary
to deal with the proposed registration processes. That process will include
the consideration of information lodged with an application, the possible
acquisition of additional information and possible review by the Federal
Court of an initial rejection.
Provision - Section 32(3)
This provision extends the time limit for lodging an objection to the
expedited procedure from 2 months to 3 months after publication of the
relevant s.29 notice.
Comment
For parties who are already registered this would present no difficulty.
For parties seeking registration the comments in relation to the amendments
to ss.28 and 30 apply.
Provision - Section 50(2)
Section 50 is amended to provide for compensation applications to be
made to the Federal Court.
Comment
This amendment is a response to the Brandy decision and is supported.
Provision - Sections 55, 56(1), 56(2), 56(4) and 57
These amendments are consequential upon the requirement that native title
determinations be made by the Federal Court and delete reference to the
National Native Title Tribunal in relation to associated decisions about
whether the native title is to be held in trust and if so, by what prescribed
body corporate.
Comment
The amendments are supported.
Provision - Section 61(1) and 61(2)
These provisions presently identify the kinds of applications and those
who may make them. They provide for native title determination applications
to be lodged with the Native Title Registrar. The amendments substitute
for that requirement a requirement that applications be filed with the
Federal Court rather than lodged with the Native Title Registrar.
Comment
These amendments are part of the response to the Brandy decision and
are supported.
Provision - Section 62
This section sets out the formal requirements of an application for a
native title determination. It specifies the material which must accompany
the application and the fees payable. The amendments require redesignation
of the “applicant” as a “claimant”. They retain the
requirement for an affidavit to be lodged with the application and existing
requirements for information to be included in the application about interests
in relation to any of the land or waters concerned which are held by persons
other than as native title holders. They add a requirement that the claimant
is to give details of other applications of which the claimant is aware
and of notices under s.29 or the proposed s.24A, or their State or Territory
analogues of which the claimant is aware.
Comment
The designation “claimant” is inconsistent with the usual
designation “applicant” applied in proceedings in the Federal
Court - see Federal Court Rules O.4 r.2.
The obligation on the claimant to provide information “of which
the claimant is aware” raises a question about the usefulness of
the provision of that information when there is no corresponding obligation
to undertake exhaustive searches. At some stage it may be necessary to
ascertain the full range of interests held by non-native title holders
in the land under claim. Similarly, it will be necessary for there to
be verification of the published notices under ss.24A and 29 to ensure
that information provided about those is comprehensive. It may be better
to delete the requirements to provide information about other interests
and about s.29 and s.24A notices.
Provision - Sections 63, 64 and 65
Repealed.
Comment
The repeal of these sections removes the acceptance test which presently
conditions the processing of native title determination applications.
The repeal of these provisions is supported.
Provision - New Section 63
The new s.63 requires applications filed in the Federal Court to be copied
to the Native Title Registrar.
Comment
This amendment is supported. It is to be noted however, that a late
lodgment in the Federal Court would leave little or possibly no time for
consideration by the Registrar of the registration question. Any delay
in transmission from the Federal Court to the Registrar would exacerbate
that difficulty and potentially expose the Court to criticism. It may
be preferable to provide that the Registrar can consider a sealed copy
of an application which is delivered to her by the applicant after lodgment
in the Court (as an optional process).
Provision - New Section 64
The new s.64 provides that an amendment of an application cannot result
in the inclusion of any area of land or waters not covered by the original
application. It also requires that a copy of an amended application must
be given to the Native Title Registrar and that the Court may direct the
Native Title Registrar to give such notice of the amended application
as the Court considers appropriate.
Comment
The limitation that an amendment of an application cannot result in
the inclusion of any area of land or waters not covered by the original
application may unduly hamper the discretion of the Federal Court. The
Court should be able to permit such an amendment subject to appropriate
notification for additional parties who may be affected by it. In some
cases an agreement may be made about the existence of native title which
may result in the deletion of one geographical area from an application
and the addition of some other area. If such an agreement is made, say
between a State Government and a native title applicant, and is to be
effected in part by amendment of an application, the Court should be able
to devise appropriate procedural directions without the need for a fresh
application and repetition of all the processes for which the Act provides.
The general provisions of the proposed s.64(2) and (3) would enable the
Court to make appropriate directions.
Provision - New Section 66
The new sub-s.66(1) requires notice of an application to be given to
all persons “whose interests may be affected by a determination in
relation to the application” and notice to be given to such other
persons as the Registrar thinks appropriate. There is no alteration to
the definition of “interest” which appears in s.253. Section
66(2) remains intact. The new s.66(1A) requires the Registrar to give
a copy of the notice to the Federal Court. A new s.66(2A) provides that
the notice must specify the day on which it is taken to have been given,
which cannot be earlier than 14 days after the last day on which notice
under para.66(2)(a) is despatched.
Section 66(3)(a) presently imposes a requirement that a notice under
s.66(2) must state that if the application is a non-claimant application
it will be taken to be unopposed unless the condition in sub-s.66(4) is
satisfied within the period of two months starting on the day the notice
is given. The relevant condition in sub-s.66(4) provides that a native
title determination application is lodged covering any part of the area
covered by the non-claimant application.
Under the proposed new s.66(3)(a) that condition is deleted. The notice
requirement is altered to require notice that the area covered by the
non-claimant application may be subject to s.24 protection unless at the
end of three months starting on the day on which the notice is given,
the area is covered by a relevant native title claim.
Comment
(i) There is more than one view as to whether the class of persons
whose interests may be affected by a determination for the purposes of
notification is limited to persons holding interests of the kind defined
in s.253. This should be clarified having regard to the fact that standing
for party status will be determined by the Federal Court.
(ii) The present s.66(2) has been construed by the Tribunal as facultative
rather than mandatory in its operation. The Registrar has a discretion
to use a general notification process without sending individual notices
to every interest holder. This will operate in large and complex notifications
involving a wide range of interest holders. It may be appropriate for
the Registrar to be authorised to seek directions from the Federal Court
as to the notification of potential parties and the mode of such notification.
This would retain the existing flexibility but ensure that the particular
mode adopted had the sanction of the Court which would be in ultimate
control of the proceedings.
(iii) Section 66(3)(b), imposes a limitation on the Federal Court
by which a person cannot become a party to the proceedings unless that
person has complied with the proposed time limit within which the Federal
Court is to be notified of his or her desire to be a party. The Court
should have a discretion to admit persons as parties out of time. For
example, a case could arise in which a person admitted as a party on the
basis of some legal interest assigns or sells that interest to another
while proceedings are pending. New interests which could be affected by
a native title determination could come into existence while proceedings
are pending. In some cases a group of parties with a like interest may
wish to withdraw on the basis that an industry association be admitted
as a party under general rules relating to standing in Federal Court proceedings.
(iv) The amendments relating to the content of notices in relation
to non-claimant applications are consequential upon the amendments and
the extended s.24 protection applicable to non-claimant applications.
The amendments are supported.
(v) The proposed regime requires public notice to be given after individual
notification. At present the Tribunal gives public notice prior to individual
notification. The requirement to notify an application publicly after
individual notification may result in a longer notification period while
the Tribunal waits for individual interests to be ascertained through
current tenure searches.
Provision - Section 67
This section as it presently stands applies to non-claimant applications.
The section provides that when a claimant application is lodged within
two months of notification of a non-claimant application, and is subsequently
accepted, the non-claimant application is taken to be dismissed. If a
non-claimant application is not taken to have been dismissed it is taken
to be unopposed for the purposes of s.70 of the Act.
The proposed amendments would delete those elements of s.67. Under the
Brandy amendments the non-claimant application would have been
filed in the Federal Court. The Act therefore provides consequentially
that where a claimant application is lodged in the Federal Court over
the same area the claimant application and the non-claimant application
may be “combined” under the Rules of Court into the same matter.
Comment
This amendment is consequential upon the lodgment of all applications
in the Federal Court. The word “combined” is not consistent
with the language of the Federal Court Rules. A more appropriate word
would be “consolidated” - see O.29 r.5. The words “into
the same matter” raise unnecessary complications given the constitutional
provenance of the word “matter”.
Provision - Sections 68 and 69
Section 68 identifies the persons who are parties to applications and
s.69 provides for the Tribunal to decide whether a person's interests
are affected for the purpose of party status. Those two sections are now
to be repealed.
Comment
The repeal of these provisions is supported.
Provision - Sections 70, 71, 72, 73 and 74
These sections presently provide for the Tribunal to make determinations
where applications are unopposed or where agreement is reached, to direct
mediation conferences and to refer matters to the Federal Court where
agreement has not been reached.
Comment
The repeal of these provisions is supported as an aspect of the legislative
response to the Brandy decision.
Provision - Section 78
This section provides for the Registrar to give assistance to help people
prepare applications and accompanying material. Sub-section (1) would
be repealed and substituted by an authority to the Registrar to give assistance
to help people prepare applications and accompanying material and to help
people at any stage of a proceeding in matters related to applications.
The amendment to sub-s.78(2)(b) would authorise assistance by way of
the conduct of searches “of Registers or other records of current
or former interests in land or waters”. This is corrective of the
present provision (s.78(2)(b)) which seems to refer by error to a sub-paragraph
which has no relevance to the subject matter of the section.
Comment
This provision has financial implications for the Tribunal which may
be requested to conduct tenure history or current interest searches in
the course of mediation.
Provision - Section 79
Section 79 imposes an obligation on persons involved in negotiations
about compensation to consider a request that the whole or part of the
compensation should be in a form other than money and to negotiate in
good faith in relation to that request. The negotiations to which this
obligation is applicable are said to extend to “negotiations (whether
or not during a conference under s.72)”. The reference to a conference
under s.72 would be deleted.
Comment
This is consequential upon the deletion of s.72 and is supported.
Provision - Sections 80 and 81
These amendments are aspects of the legislative response to the Brandy
decision. They substitute references to filing of applications in
the Federal Court in place of references to lodgment of applications in
the Federal Court by the Tribunal under s.74.
Comment
The amendments are supported.
Provision - Section 83A
This section inserts a provision under which the Federal Court may request
the Native Title Registrar to conduct searches of registers or other records
of current or former interests in land or waters and to report the results
to the Court.
Comment
Requests from the Federal Court to the Native Title Registrar that
she conduct searches of registers or other records of current or former
interests in land or waters will have resource implications. At present
the Native Title Registrar has agreements with some State Governments
in relation to the cost of such searches. However, the Registrar has a
discretion under the general procedures not to conduct a search if it
is going to take too long or cost too much. A Court imposed requirement
to conduct searches may involve an open ended financial commitment. Consideration
should be given to the resource implications of such orders and provision
made accordingly. The question will arise as to whether it is the Federal
Court that should bear that cost. There is a question of perception to
be considered here, namely that the Registrar may be asked by the Court
to acquire for the Court material which would ordinarily be part of the
evidence led by the State. Usually the only purpose of resort to historical
tenure is to support argument about extinguishment of native title.
Provision - Section 84
This provides for parties other than the applicants to cease to be parties
by written notice to the Court.
Comment
Section 84 contemplates the withdrawal of parties to a proceeding
but says nothing about the cost implications of such withdrawals. The
term in the proposed sub-s.84(3) “first hearing of the proceeding”
is ambivalent. It should be made clear whether this refers to a directions
hearing or to the commencement of the trial of the action. If a party
withdraws prior to the trial of the action but, for example, has been
provided with copies of documents directed to be filed and served on all
parties, the applicant may have incurred expense which, absent agreement,
the withdrawing party should bear.
Provision - Section 84A
This new section will provide for intervention by the Commonwealth Minister
in proceedings before the Federal Court.
Comment
The amendment is supported.
Provision - Section 84B
Section 84B provides that a body may act as agent on behalf of parties
in proceedings.
Comment
It is suggested that the provision could go further and authorise
the Court to allow an industry body to be substituted as a representative
or substitute party for a group of interest holders. The interest holders
could withdraw from the proceedings. Any mediation could then proceed
directly with the industry body.
Provision - Section 86A
This section defines the purpose of mediation through the Tribunal upon
referral of a matter to the Tribunal by the Federal Court.
Comment
The expressed purpose of mediation in proceedings not involving compensation
applications is defined in s.86A(1) and (2). 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.
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.
The restrictions to be imposed upon the purpose for which mediation
may be conducted by the Tribunal and linked to sub-ss.86AA(5), 86A(6)
and 86A(7) may reduce the scope of mediation and negotiation in favour
of litigated outcomes. They come close to providing a single party veto
on mediation even though mediation may lead to a reduction of the number
of parties or range of issues in dispute. Sub-section 86A(6) imposes an
obligation on the Court to order no mediation if the narrow purposes defined
in s.86A(1) or (2) are unable to be met in whole or in part. It is not
clear from the sub-section what will enliven the consideration by the
Court of making an order of its own motion.
The mediation process also seems to contemplate that the only purpose
of mediation is agreement between all the parties to the application.
Partial agreements do not seem to be contemplated. The combination of
s.86A(10) and 86A(11) confers on any individual party, however inconsequential
its interest, something close to a veto on the entire mediation process
which may involve hundreds of other parties unless the Court is positively
satisfied that mediation will be successful in enabling achievement of
the restrictive purposes enunciated in s.86A(1) or (2) before it can allow
the mediation to continue.
The likely impact of the amendment is to increase the rate at which
cases are required to be litigated correspondingly increasing the financial
burden on the Court and the parties.
Provision - Section 86B
This provision authorises the Federal Court to request the Tribunal to
provide reports on the progress of any mediation being undertaken by the
Tribunal.
Comments
The function of the Tribunal in providing a report to the Court will
have to be carried out with particular care. Reports should not compromise
the confidentiality or without prejudice character of the mediation. It
would seem that any such report should describe the relevant process historically
and prospectively. It is to be noted, however, that if the purpose of
mediation is limited to the question whether a native title determination
can be agreed, then a report promising progress may give an indication
by inference of the content of the negotiations.
Provision - Sections 86C
This section will provide for the Federal Court to make orders on unopposed
applications where, the order is “within the power of the Court”
and the Court considers it “appropriate to do so”.
Comment
The terms “within the power of the Court” and “appropriate
to do so” will require construction by the Court unless some factors
relevant to the question of appropriateness are inserted.
Provision - Section 87
Section 87 is amended to provide for the Court to make orders consistent
with agreements reached by parties after the end of the notification period.
Comment
This amendment is supported.
Provision - Section 97A
This new provision authorises the Registrar to conduct searches requested
by the Federal Court under s.83A.
Comment
Comment has been made on s.83A and applies also to this provision.
Provision - Section 98A
This new section empowers the Registrar to keep records other than those
referred to in s.98. It imposes a duty on the Registrar to keep confidential
the names or addresses of persons who it is claimed hold native title
other than the name and address for service of a person who is taken to
be a claimant.
Comment
This amendment is supported. To be consistent the prohibition on disclosure
of persons who it is claimed hold native title should apply explicitly
to the content of the Register of Native Title Claims. Under s.188(2)
as it presently stands, it is arguable that there is a discretion in the
Registrar rather than an obligation to keep such information confidential.
Provision - Section 106A
This provision authorises the President to appoint an Acting Registrar.
Comment
This amendment is supported.
Provision - Section 108
This section as it presently stands sets out the functions of the Tribunal.
The amendment adds the functions given to the Tribunal in relation to
Federal Court proceedings by Division 4A and the provision of assistance
under s.24A(8) in the negotiation of future act agreements.
Comment
The amendment is supported.
Provision - Section 109
Section 109 as it presently stands specifies the objectives to be pursued
by the Tribunal, the requirement that it take account of the cultural
and customary concerns of Aboriginal people and Torres Strait Islanders
and the requirement that it not be bound by technicalities, legal forms
or rules of evidence. The amendment widens the two latter requirements
beyond the conduct of inquiries to the carrying out by the Tribunal of
its functions.
Comment
The amendment is supported.
Provision - Section 110
This section as it presently stands sets out the categories of membership
of the Tribunal and the qualifications for appointment to those categories.
The amendment extends the qualifications of Presidential Members to include
persons who have been legal practitioners for five years or more.
Comment
The amendment is supported. It will provide greater flexibility in
the appointment of Members to the Tribunal.
Provision - Section 122
This section provides for the disclosure of conflicts of interest by
Members of the Tribunal. The amendments correct drafting errors in s.122(1)
and s.122(3) which cross refer to Part 4 when it is clearly intended that
they should cross refer to Part 3 of the Act.
Comment
The amendments are supported.
Provision - Section 123
Section 123 provides for the President of the Tribunal to give directions
on matters relating to the arrangement of the business of the Tribunal,
its constitution, venues and procedures generally or at particular places.
The proposed amendments reflect the shift of functions from the Tribunal
to the Federal Court.
Comment
The amendments are supported.
Provision - Section 124
This section specifies the constitution of the Tribunal for the exercise
of its powers. The amendment deletes the reference to determination of
party status by the Tribunal. This is consequential upon the shift of
that function to the Federal Court.
Comment
The amendment is supported.
Provision - Section 136A
This new s.136A provides for the President to direct the holding of conferences
where the Court has referred the whole or part of the proceeding to the
Tribunal under s.86A for mediation.
Comment
It is suggested that to maximise the flexibility of the Tribunal in
the use of its resources, officers of the Tribunal, subject to the direction
of a Member of the Tribunal, be able to preside over particular conferences
which may be elements in a mediation
Provision - Section 136B
This section authorises the President to engage mediation consultants.
Where a consultant is engaged to conduct mediations in relation to a matter
under Division 4A, the Division applies to that matter as if the consultant
were a member of the Tribunal.
Comment
It is suggested that the protective provisions of s.180 of the Act
which apply to Members in the performance of their duties should also
explicitly be applied to mediation consultants. It is noted that there
is an amendment to s.181 relating to non-disclosure of confidential information
which applies it to mediation consultants. (See cl.62 of the Bill)
Provision - Section 136C
This provision provides for one or more parties to be excluded from a
conference by direction of the presiding Member.
Comment
It may be preferable that the member have a positive authority to
conduct conferences between all or some of the parties and ex parte discussions.
Such conferences, by definition, would comprise those persons for whom
they had been convened. It may be desirable that there be a power of exclusion
of one or more of the parties or their representatives if, in the course
of the mediation, they are proving to be disruptive or if their exclusion
would facilitate the resolution of matters between other parties at the
conference.
Provision - Section 136D
This section provides for the presiding Member to direct that persons
other than parties be permitted to attend or participate in a conference
if this would assist the parties to reach agreement.
Comment
The amendment is supported except to the extent that it might by implication
prevent the Tribunal from admitting an observer to a mediation. This should,
of course, only occur where the parties consent. There can be considerable
value in persons who may have functions to carry out with respect to native
title matters being present as observers in particular mediations with
the consent of the parties so that they may be better informed about the
nature of native title mediation.
Provision - Section 136E
This provision provides for the referral to the Federal Court of questions
of law or fact that arise during mediation.
Comment
There needs to be some caution in the operation of this provision
to ensure that the Federal Court is not asked for advisory opinions on
questions of law. It may be that if there is a question of law to be referred,
the presiding Member should refer it on the basis of an agreed statement
of facts between the parties. In complex mediations involving a range
of interests it may be sufficient that the agreement be between the applicants
and the State. Consideration needs to be given to the interaction between
this procedure and the procedure of the Federal Court whereby it can have
a separate hearing of issues as preliminary issues in the course of its
proceedings. The approach taken by Lee J in the Miriuwung Gajerrong litigation
relating to the extinguishing effect of old pastoral leases raises the
question whether the Federal Court should have jurisdiction to decline
to hear and determine a question of law or fact referred to it. Presumably,
the question of law or fact once determined is determined for the purpose
of the proceedings in the Federal Court.
Provision - Section 136F
This section provides that conferences must be held in private.
Comment
In relation to mediations where there is intense local interest and
a large number of parties it may be appropriate to admit media for an
opening statement by the presiding Member where the parties agree. In
some cases the private character of the mediation conference will be nominal
because of the large number of parties involved. Native title mediation
does involve the resolution of public issues. While in practice the parties
negotiate in private, it may be desirable to have a discretion in the
presiding Member to direct that a particular conference or part thereof
be held in public. This could be achieved by rewording s.136F as follows:
“A conference must be held in private unless and to the extent
otherwise directed by the presiding Member.”
Provision - Section 136G
This section authorises the presiding Member to direct non-disclosure
of “evidence given, statements made, or documents produced at a conference”.
Comment
Evidence is not given at mediation conferences or as an element of
the mediation process. The reference to “evidence” should be
deleted to avoid confusion about the nature of the mediation process.
Provision - Section 136H
This section provides for a written report to the Federal Court as soon
as practicable after mediation is successfully concluded. It also requires
provision of a written progress report where there is a request from the
Federal Court to do so under s.86B. Sub-section 136H(4) provides that
any report under the section must include any agreement on facts between
the parties that was reached during the mediation concerned.
Comment
The comments previously made about the provision of reports to the
Federal Court apply here. In addition, it should be clear that the agreement
on facts referred to in s.136H(4) is an agreement on facts for the purpose
of the proceedings in the Federal Court.
Provision - Section 139
This section as it presently stands sets out the classes of inquiry to
be conducted by the Tribunal. The amendment would repeal the reference
to inquiries into applications covered by ss.70, 71 or 73 - each of which
has been repealed.
Comment
The amendment is consequential and is supported.
Provision - Section 141
This section deals with the parties to inquiries in relation to unopposed
applications, right to negotiation applications and special matters. The
sub-section relating to inquiries in relation to unopposed applications
is repealed.
Comment
The amendment is consequential and is supported.
Provision - Section 148
The section as it presently stands provides that the Tribunal may dismiss
an application at any stage of an inquiry relating to the application
if it is satisfied that the applicant is unable to make out a prima facie
case in relation to the application.
Comment
The amendment is supported, although it should be noted that circumstances
may arise in which the Tribunal dismisses an application for a future
act determination. Such a case arises where the relevant State Government
has failed to engage in good faith negotiation as required by s.31(1)(b)
of the Act. It is probably more accurate to say, however, that dismissal
in such a case follows from want of jurisdiction on the part of the Tribunal
rather than lack of a prima facie case.
Provision - Section 154
Section 154 of the Act requires inquiries to be held in public subject
to contrary directions by the Tribunal. The word “inquiry” where
it appears in the section is replaced by the word “hearing”.
Comment
This amendment removes an anomaly and is supported.
Provision - Sections 160, 161 and 165
Section 160 presently provides for making of determinations in relation
to applications under s.61 of the Act. Section 161 relates to the making
of determinations that compensation is payable. Section 165 provides that
a determination of the Tribunal other than a determination in relation
to a right to negotiate application is not binding or conclusive. The
amendments would repeal each of these sections and comprise part of the
legislative response to the Brandy decision.
Comment
The amendments are supported.
Provision - Sub Division E of Division 5 of Part VI
This sub-division comprises ss. 166 to 168 inclusive and relates to registration
of determinations in the Federal Court. Its repeal is part of the legislative
response to the Brandy decision.
Comment
The repeal of this sub-division is supported.
Provision - Section 169(2) and (3)
This section presently provides for appeals from decisions and determinations
of the Tribunal. The amendments would repeal sub-ss.(2) and (3) relating
to acceptance decisions and decisions about party status. That is part
of the legislative response to the Brandy decision.
Comment
The amendments are supported.
Provision - Section 176
Section 176 imposes a penalty for disclosure of material in contravention
of directions under ss. 92 or 155 of the Act. The amendment would insert
a reference to s.136G.
Comment
The amendment is consequential and is supported.
Provision - Section 177
This section provides for contempt of the Tribunal. It extends to contempt
of the Tribunal where its functions are being exercised by a mediation
consultant.
Comment
The amendment is supported.
Provision - Section 178
This section presently provides for the Tribunal to transmit to the Court
documents upon the lodgment of determinations or appeals to the Federal
Court or referral of questions of law to the Court. The amendment deletes
reference to the lodgment of determinations of the Tribunal with the Federal
Court.
Comment
The amendment is part of the legislative response to the Brandy decision
and is supported.
Provision - Section 181
This section provides for the non-disclosure of confidential information
by Members or officers of the Tribunal in relation to evidence or documents
given to the Tribunal. The section is amended to extend that protection
to consultants engaged under sub-s.136B(1).
Comment
The amendment is supported.
Provision - Section 183
This section provides for persons to apply to the Attorney-General for
the provision of assistance in relation to inquiries conducted by the
Tribunal or proceedings before the Federal Court. The amendment extends
the scope of such assistance to persons who intend to apply to be parties
to inquiries, mediations or proceedings related to native title.
A new sub-s.183(4A) prevents the Attorney-General from authorising assistance
to a person claiming in an inquiry, mediation or proceeding to hold native
title to an area. And in sub-s.183(5) the delegation of the Attorney-General's
powers may be made to a person occupying a specified office in his Department.
Comment
In so far as the amendments extend the categories of involvement in
native title for which assistance may be provided, they are supported.
No comment is made on the withdrawal of assistance to native title applicants.
It is understood that this amendment recognises that funding to native
title applicants is provided through representative bodies.
Provision - Section 184
This section defines the term “claim”. The reference to an
application being given to the Registrar is deleted and substituted by
a reference to an application “filed in the Federal Court”.
This amendment is part of the legislative response to the Brandy
decision.
Comment
The amendment is supported.
Provision - Section 185
This section as it presently stands establishes the Register of Native
Title Claims. The amendment ensures that the Registrar is referred to
as the Native Title Registrar.
Comment
The amendment is supported.
Provision - Section 186
Section 186 sets out the information to be included in the Register of
Native Title Claims. The amendments are consequential.
Comment
The amendments are supported.
Provision - Section 188
This section provides for the Registrar of the High Court to notify the
Native Title Registrar of the details of claims contained in any application
given to the High Court and the details of any decision or determination
covering a claim made by the High Court. The amendment includes a requirement
to provide the details of any amendment or withdrawal of a claim and for
such details to be accompanied by a copy of the application containing
the claim or the amendment of the claim.
Comment
The amendments are supported.
Provision - Section 189A
This proposed new section would require the Federal Court to notify the
Native Title Registrar of the withdrawal of applications and the details
of any decision or determination covering claims.
Comment
The amendment is supported.
Provision - Section 190
This section imposes upon the Registrar the duty to include claims in
the Register of Native Title Claims. There is a minor drafting change
and amendments which link the duty to include claims in the Register to
the new registration test under s.190A. Paragraph 190(1)(c) also requires
the Registrar, after becoming aware of them, to include in the Register
details of any claims that have been found to satisfy conditions equivalent
to those set out in s.190A, being claims of which the Registrar is notified
by a recognised State or Territory body.
Comment
A question arises whether the Registrar is required to determine whether
the conditions specified in the State or Territory law are “equivalent
to those set out in s.190A”.
In relation to the new sub-s.190(1A), it seems that if a claim as
set out in an amended application has been found not to satisfy conditions
equivalent to those set out in s.190A, the Register must be amended to
remove “any entry relating to the claim”. It is to be noted
that one of the conditions in s.190A(7) is that “prima facie, each
of the native title rights and interests claimed in the application can
be established”. It seems if there is a failure to establish any
one of the native title rights and interests claimed the whole application
must be rejected and in the case of an amended application, the entire
entry removed. This seems a fairly draconian outcome.
Provision - Section 190A
This provision provides the basis upon which the Registrar is to consider
claims made in the Federal Court for the purpose of determining whether
or not they should be included on the Register of Native Title Claims.
Comment
It seems that the Registrar must automatically process claims for
registration. As a general proposition the nature of the judgments required
of the Registrar in determining whether or not a claim should be registered
are really of a character that would be better carried out by a Judicial
Registrar of the Federal Court subject to review by a Judge. The determinative
role thrust upon the Registrar is inconsistent with the role of the Tribunal
as a mediation service. The administrative burden of dealing with applications
at the level of detail contemplated by s.190A is such that it should not
be automatic but should be initiated by specific application and the application
should be for an order of the Court that the application be registered
on the Native Title Register.
As to the first condition for registration set out in s.190A(7), it
seems likely that the Registrar could not form a concluded view on an
arguable question of law or fact in deciding whether each of the native
title rights and interests claimed in the application could be established.
To that extent, the test applied in determining whether or not a claim
could be registered may not differ significantly from that which is applicable
following the Waanyi decision. The second condition would have to be construed
in the light of the nature of the Registrar's function and the preliminary
stage of the application at that time. The question of what constitutes
a “sufficient description of native title rights and interests claimed”
and what would answer the requirement of “a description of the factual
basis” on which the native title claim is made would depend upon
such considerations. The Registrar would have to determine as a matter
of construction (and on review, no doubt the Federal Court) what is the
appropriate level of generality of that information having regard to the
nature of her function.
The first condition would appear to mandate refusal of the claim for
registration if any one of the native title rights and interests claimed
in the application cannot be established. This does assume a shopping
list of native title rights and interests. This may not always be the
case.
As to the appropriateness of the test proposed and its effect on the
balance of interests under the Act, no comment is made.
Provision - Section 192
Section 192 provides for the establishment of the National Native Title
Register. The only amendment to this section would refer to the Registrar
as the Native Title Registrar.
Comment
The amendment is supported.
Provision - Section 193
This section at present provides for information to be set out in the
Register of Native Title Claims. It is amended to delete reference to
determinations of native title by the Tribunal.
Comment
The amendment is consequential and is supported.
Provision - Section 196
This section presently provides for the Registrar of the Federal Court
to notify the Native Title Registrar of the details of any decision or
determination made by the Court. This section is repealed as it is already
covered in s.189A.
Comment
The amendment is supported.
Provision - Section 209
This section provides for the Aboriginal and Torres Strait Islander Social
Justice Commissioner to report on the operation of the Act each year.
It is amended to provide that the reporting function is conferred on the
Human Rights and Equal Opportunity Commission rather than directly on
the Social Justice Commissioner.
Comment
No comment.
Provision - Section 215
This section sets out the regulation making power under the Act. It is
amended to extend the regulation making power in relation to prescribed
fees, to provide that the regulations may make provision for the waiver
of application fees and to avoid confusion between a Registrar of the
Federal Court and the Native Title Registrar.
Comment
The amendments are supported.
Provision - Section 222
This section contains a table setting out the list of definitions in
Part 15 of the Act and showing their location. There are some minor amendments
to the Table which are consequential and are supported.
Comment
The amendments are supported.
Provision - Section 225
This section sets out the elements of a determination of native title.
It is amended to make clear that it is only where a determination is that
native title does not confer exclusive rights that the maker of the determination
should determine those native title rights that he or she considers to
be of importance.
Comment
The amendment is supported.
Provision - Section 226
This section defines the word “act” as it appears in the Native
Title Act. The amendments to this section correct certain technical
drafting errors.
Comment
The amendments are supported.
Provision - Section 235
This section defines “permissible future act”. Section 235(8)(a)
includes in the category of permissible future acts, future acts in relation
to offshore places. The amendment provides that where a future act covers
both onshore and offshore areas it is a permissible future act to the
extent that it applies offshore.
Comment
No comment.
Provision - Section 251
This section provides for recognition of recognised State/Territory bodies.
It has been amended to ensure continued recognition of the South Australian
scheme. It adds a new paragraph to require the Minister to be satisfied
that State or Territory procedures for determining whether future acts
may be done are consistent with procedures in the new Act and making a
determination “recognising” State or Territory bodies.
Comment
No comment is made on this amendment.
Provision - Section 252A
This new section defines the meaning of dispatched in relation to notices.
Comment
The amendment is supported.
Provision - Section 253
This is the general definition provisions and is amended in relation
to certain definitions.
Comment
No comment.
Federal Court of Australia Act
Provision - Division 2 Sections 18AA to 18M Inclusive
A new Division 2 is inserted in Part 3 of the Federal Court of Australia
Act to provide for the appointment of Judicial Registrars in the Federal
Court. These Judicial Registrars will exercise the power to decide who
should be parties to proceedings and may make orders by way of determinations
of native title in unopposed applications or applications in which the
determination is agreed. The power of the Judicial Registrars to make
such orders will depend upon delegation of those powers to them by the
Judges of the Court. The Judicial Registrars may also exercise powers
of the Registrar of the Court delegated by the Judges. In the exercise
of their powers they are subject to review by the Court.
Comment
These provisions relate to internal arrangements in the Federal Court
to handle certain decision making processes for which the Act provides.
There is no comment necessary from the Tribunal perspective beyond the
proposition that the Judicial Registrars could also undertake the process
of applying the registration test. The registration decision will be of
considerable significance to native title applicants and on the present
proposals contained in the Bill is likely to involve careful consideration
of materials supplied with or incorporated in applications. That function
could be undertaken by the Court using Judicial Registrars and subject
to review by a Judge if a party is aggrieved by the decision.
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