CHAPTER 7
7.1 The Committee has considered several issues on which
it should comment relating to the management of claims: Federal Court
procedures in native title cases, the provision of legal aid and the sunset
clauses. It should also deal with issues raised in relation to the compensation
provisions in the Bill.
7.2 Section 82 of the Act makes the following provisions for the way
in which the Federal Court is to operate in native title proceedings:
Objectives
(1) The Federal Court must pursue the objective of providing a mechanism
of determination that is fair, just, economical, informal and prompt.
Concerns of Aboriginal peoples and Torres Strait Islanders
(2) The Court, in conducting proceedings, must take account of the cultural
and customary concerns of Aboriginal peoples and Torres Strait Islanders.
Court not bound by technicalities etc.
(3) The Court, in conducting proceedings, is not bound by technicalities,
legal forms or rules of evidence.
7.3 Mr Graeme Neate pointed out in his submission (pp.13-14) that while
s.82(2) requires the Court to take into account cultural and customary
concerns, it does not require the Court to always act in a way which is
consistent with those concerns: nor does it require that the reasonable
interests of other parties should be ignored. Nonetheless, in apparent
response to concerns that this provision requires the Court to discriminate
in favour of Indigenous parties to the detriment of others, the Bill proposes
to delete this section and replace it with a new s.82 which is intended
to provide the Court with greater discretion. The new s.82 provides:
Rules of evidence
(1) The Federal Court is bound by the rules of evidence, except to the
extent that the Court otherwise orders.
Concerns of Aboriginal peoples and Torres Strait Islanders
(2) In conducting its proceedings, the Court may take account of the
cultural and customary concerns of Aboriginal peoples and Torres Strait
Islanders, but not so as to prejudice any other party to the proceedings.
7.4 The proposal to replace the existing s.82(1) with a new s.82(1) was
criticised in evidence to the Committee.[1]
For example, Mr Graeme Neate in his submission argued that the proposed
amendment is neither necessary nor desirable for several reasons (pp.19-21):
- because the present section 82(3) is an appropriate provision to enable
the Federal Court to act flexibly and fairly in determining what evidence
is admissible and there is no evidence that the existing provision has
disadvantaged non-indigenous parties;
- because the proposed amendment neither frees the Court entirely from
the rules of evidence nor makes it subject to them, but gives it an
ill-defined discretion with no guidance as to its exercise (particularly
with the deletion of the current section 82(1));
- because of the uncertainty which will be created by the proposed amendment,
it will make it more difficult for parties to prepare and present their
evidence with confidence about its admissibility, and will lead to delay
and additional costs as parties contest the admissibility of some evidence;
and
- because although the existing section 82(3) accords with the Preamble
and the main objects of the Act, the proposed section 82(1) may operate
in a way which is less consistent with those statements.
7.5 The Committee notes that the National Native Title Tribunal also
identified difficulties with the proposed provision, saying that it:
probably gives rise to more difficulties than assistance. There
is a real question as to its usefulness.[2]
7.6 In regard to the question of prejudice, the Foundation for Aboriginal
and Islander Research Action Aboriginal Corporation told the Committee
that the change (the new s.82(2)) would afford customary concerns and
Indigenous culture much less protection and as a result the court process
would place more pressure on claimants: 'The impact for all parties will
make proceedings more adversarial and technical - thus more time consuming
and expensive'.[3] Mr Daniel O'Dea,
a solicitor for the Ngaanyatjarra Council, told the Committee:
It seems to us that the changes which are made in section 82(1)
are quite unnecessary and only add to uncertainty in the litigation
process. In our view, the land rights legislation and the embryonic
development of native title litigation seem to have provided a perfectly
reasonable way of proceeding in these cases, particularly in dealing
with traditional evidence. ... If there were a situation where hearsay
or even traditional evidence were ruled inadmissible, it would make
the entire process of proving native title impossible and the Native
Title Act farcical. I cannot really see the logic in making the changes
which have been made, except to increase uncertainty. As I say, if the
decision is that all the rules of evidence are going to be applied strictly,
then cases simply will not be able to proceed.[4]
7.7 The Commonwealth Government informed the Committee that the aim of
the amendment was to allow the Court properly to manage the proceedings
before it and to balance the competing interests in litigation. It added:
Clearly, native title litigation raises significant challenges
for judicial processes. The appropriate rules of evidence and procedure
will need to be developed by the Federal Court. The Government's intention
is to allow the Court to do so in a systematic but flexible manner.[5]
7.8 The Committee does not object to amendments directed to this end.
However, it wishes to draw attention to a problem with the drafting of
the proposed amendment. Mr O'Dea noted that the amendment appears not
to allow the Court to take account of Indigenous cultural and customary
concerns if to do so would prejudice any other party. He suggested that
this might, for example, prevent the Court from dealing appropriately
with gender-specific evidence:
If there are to be rules about gender specific evidence, it is
inevitable that there will be prejudiced parties. The argument of the
Western Australian government in the Miriuwung Gajerrong case, which
was heard before the full Federal Court, was that they were prejudiced
because they had to hire additional lawyers - that is, female lawyers
and female assistants - to deal with female evidence, and vice versa.
That is clearly prejudice, in a sense, and it would seem to me that
this particular clause opens up a situation where the courts are prevented
from making rulings of that nature. In many cases, rulings of that nature
are essential to the capacity of the witnesses to adduce that evidence,
which can be crucial to the proving of the case.
7.9 The Committee agrees that the wording of the proposed amendment needs
to be altered to ensure flexibility.[6]
The Court should be able to look not only at the prejudice to one party,
but also take into account the benefits to other parties and the interests
of justice. Only in cases of undue prejudice to one party should the Court
be prevented from taking account of the cultural and customary concerns
of Indigenous peoples.[7]
7.10 Accordingly, the Committee recommends that the Government
redraft the proposed new s.82(2) so that it is only undue prejudice
to another party that prevents the Court from taking account of the cultural
and customary concerns of Indigenous peoples.
7.11 The Committee received criticisms that legal assistance in native
title matters was more readily available to Indigenous groups than to
others, such as pastoralists. When the Act was passed in 1993 it was assumed
that pastoral leases extinguished native title, as noted in Chapter 1.
Hence it was not contemplated that pastoralists would frequently become
involved in native title processes.
7.12 The Bill replaces the existing legal assistance provision, s.183,
with a new section intended to give greater access to assistance for respondent
parties. The requirement that the refusal of assistance would involve
hardship to the applicant is removed. It is replaced with a requirement
that 'in all the circumstances, it is reasonable that the application
be granted'.
7.13 Other changes brought about by the new s.183 enable legal assistance
to be provided for the negotiation of indigenous land use agreements as
well as for contested native title matters.
7.14 The Aboriginal Land Rights (Northern Territory) Act 1976
did not contain any 'sunset' provision when enacted. In 1987 it was amended
to insert a provision which prevented the Commission from dealing with
land claims lodged more than 10 years after the provision took effect
(that is, 10 years after June 1987).[8] The Committee notes that that sunset provision was
inserted by the Hawke Labor Government.
7.15 The Bill introduces two sunset provisions on the bringing of native
title claims under the Act. The first provides that six years after the
provision becomes law no new applications may be made to the NNTT for
a determination of native title, although applications to vary or revoke
previous determinations will still be permitted (new s.13(1A)). The second
provides that no compensation applications may be made to the NNTT more
than six years after the provision becomes law or more than six years
after the act giving rise to the application occurs, whichever is the
later (new s.50(2A)).
7.16 The provisions prevent native title claimants from using the special
provisions of the Act, such as the right to negotiate and the services
of the NNTT. However, they do not remove the basic protection against
extinguishment given in s.11 of the Act. Neither do they remove common
law rights to native title or compensation, or affect access to the courts
to enforce such rights and obtain compensation.
7.17 The National Farmers' Federation argued in its submission that in
order to provide certainty there should be no access to native title in
any jurisdiction if it has not been determined or applied for under the
Act by the sunset date.[9] On the
other hand, corporate mining representatives told the Committee that the
presence or absence of a sunset clause was not a major issue.[10]
One of their representatives noted that it can be argued that, by the
year 2004, the majority of Australia that is claimable will already be
claimed and in the system, and that it would have very little material
impact to continue it on after that date.[11]
7.18 Indigenous groups opposed the sunset provisions. For example, Mr
Aden Ridgeway, the Executive Director of the NSW Aboriginal Land Council,
told the Committee:
I think that probably most of the indigenous people, if not all,
have stated that they would oppose any sunset clause being imposed.[12]
Others pointed out that because the sunset clause will only remove the
system for the determination of claims, not the native title rights themselves,
claims will have to be dealt with by more costly procedures in the ordinary
courts. Community Aid Abroad, for example, told the Committee:
We see the sunset clause serving to force future determinations
outside the tribunal processes and, instead, through common law procedures
through the courts for claims lodged after that six-year period.[13]
7.19 Similarly, the Australian Institute of Valuers and Land Economists
told the Committee:
The experience of most people is that those sorts of land claims,
whether they are non-indigenous land or whether they are indigenous
land, tend to occur for many years. So it is quite possible that there
could be duplicate jurisdictions running, one under the provisions of
the NTA and one under the provisions of normal common law claims.[14]
If this were to happen, the NNTT register of claims would no longer comprehensively
reflect the existence of claims.
7.20 The National Native Title Tribunal's commentary on the Bill notes
that the sunset provisions are inflexible. It suggests that the Federal
Court should be given the power to extend the time within which applications
may be made in order to prevent possible injustice.[15]
7.21 On balance, the Committee considers that the sunset provisions be
retained.
7.22 Courts have yet to establish authoritatively whether the compensation
awarded to native title holders for extinguishment of their title may
include an amount that reflects the special Indigenous attachment to the
land (which may make the land more valuable to them than to a non-Indigenous
freeholder.)
7.23 In late 1996 the New South Wales Government concluded an agreement
to compulsorily acquire land at Crescent Head near Kempsey claimed by
the Dunghutti people under the Act. The agreement provided the Dunghutti
with a complex compensation package, including provisions for payments
linked to the amounts received by the State when it eventually sells the
land for residential development. According to media reports, the total
value of the package exceeded the freehold value of the land by between
twenty five and fifty percent and contained an element that reflected
the special Aboriginal attachment to the land.[16]
Because the agreement resulted from negotiation, not a determination,
and was arguably influenced by unique factors, opinions differ on whether
the compensation paid is any guide to the amount that a court would have
awarded. The Committee observes that the State Government, needing to
proceed with a half-completed housing development, was not in a strong
negotiating position over the amount of compensation to be paid.
7.24 Earlier, in a future act determination in July 1996 the NNTT discussed
in detail the criteria for assessing compensation. Pursuant to s.51 of
the Act, the NNTT used in this case the compensation criteria in the Mining
Act 1978 (WA) as the basis for assessing compensation. It did not
accept the Western Australian Government submission that the amount of
compensation payable under the Mining Act was limited to the amount that
would be paid for the compulsory acquisition of the freehold.[17] The NNTT concluded that it could exceed this amount
and, in a native title case, could take into account any special or unique
aspects of the native title parties' links to the land in question.[18]
The NNTT observed that the Act created a means by which the compensation
rights enjoyed by the owners of freehold are conferred on native title
holders and concluded:
The Act does not, however, mean that, in applying those provisions,
the rights and interests of native title holders are artificially converted
to freehold rights and that the peculiar features of native title are
to be ignored. To do so may impose a regime of formal legal equality
which gives rise to actual inequality. ...
... native title holders are to be put in a position of substantive
equality with the owners of land when their entitlement to compensation
is being assessed. It follows that, if owners of ordinary title are
entitled to compensation for 'all loss and damage' suffered or likely
to be suffered by them resulting or arising from the actual mining,
then native title holders are entitled to no less, even if the nature
of their loss or damage is different from that of a non-Aboriginal land
owner.[19]
7.25 The NNTT responded to the suggestion that it was difficult to place
a monetary value on the peculiar features of native title by noting that
in personal injury cases courts had awarded monetary compensation for
such things as an inability to complete initiation rights, loss of ceremonial
function and inability to partake in matters of spiritual and tribal significance.[20]
7.26 The Bill sets a cap on the amount of compensation payable under
the 'future acts' regime in the Act for an act that extinguishes all native
title in relation to particular land or waters. The cap is set at 'the
amount that would be payable if the act were instead a compulsory acquisition
of a freehold estate in the land or waters' (new s.51A(1)).
7.27 Mr Daniel O'Dea put to the Committee the concerns of the Ngaanyatjarra
Council regarding the capping provision:
The concern they have about the limit of compensation to freehold
value is that, in essence, the entire area of their country, the area
which is subject to native title claims being approximately a quarter
of a million square kilometres, has a freehold value of probably nothing.
It is an entirely notional concept. It is appreciated that section 51A(1)
is expressed as being, by virtue of 51A(2), subject to just terms, but
it is of concern to them that there is that potential. In a situation
where land is compulsorily acquired, or native title is otherwise extinguished,
there would be no proper means of assessing the real value of that land
to those people. While limiting it to freehold value may provide substantial
compensation if not complete compensation to people who live in other
areas, where freehold value has some meaning, it will have no meaning
for them. ... The appropriate approach is one which takes account of
the non-economic aspects of the value of that land to them.[21]
7.28 The Commonwealth Government informed the Committee that under the
capping provision the compensation payable is not generally limited to
the market value but extends also to compensation for severance, injurious
affection, disturbance, special value and solatium or other non-economic
loss.[22]
7.29 It is not clear to the Committee exactly how the capping provision
will accommodate the special Indigenous attachment to land, where it can
be shown to exist in particular compensation cases. In addition, it is
not clear that the capping provision complies with s.51(31) of the Constitution.
This provides that the Commonwealth can only legislate to acquire property
on 'just terms'. As the Explanatory Memorandum notes (para.1.20): 'while
the Commonwealth is of the view that the maximum compensation payable
to a native title holder should be no more than that payable to a freeholder
the courts have yet to determine this as satisfying the requirement for
'just terms' compensation'.
7.30 The Bill responds to this uncertainty by providing in the proposed
s.51A(2) that the capping provision is subject to the existing s.53 of
the Act. Section 53(1) requires the Commonwealth to top up any compensation
otherwise payable by it to the level required of it by s.51(31) of the
Constitution. As the Commonwealth Government's submission notes s.53 'ensures
that if any provision of the Act, as amended by the Bill, requires just
terms compensation but does not provide it, then just terms compensation
is provided'.[23]
7.31 Mr Aden Ridgeway, Executive Director of the NSW Aboriginal Land
Council, commented that the Commonwealth Government has embraced compensation
as a remedy in the Bill, 'with seemingly little concern as to what the
final cost may be'.[24]
7.32 The Explanatory Memorandum contains a Financial Impact Statement
(pp.7-8). This makes the following comment on the cost to the Commonwealth
of compensation payable as a result of enacting the Bill:
The number of potentially compensable past acts and intermediate
period acts done by the Commonwealth is unknown. The Commonwealth will
also have to consider the potential impact of future act compensation
on a case by case basis. It is not possible to estimate the extent of
the Commonwealth's liability for the validation and confirmation provisions
or for future acts, given the unknown number and nature of acts affected
by these provisions.
In addition, the Committee notes the evidence it received which highlighted
the difficulty of defining whether the rights encompassed under native
title approximate to something as extensive as freehold rights, or are
less extensive rights to enter on land for ceremony, hunting and other
purposes. This inability to define the scope of native title adds to the
difficulty of estimating the amount of compensation payable.
7.33 Under the 1993 Act, an indeterminate quantum of compensation is
payable for extinguishment on some pastoral leases and for some future
acts. The Committee draws to the attention of the Parliament that this
open-ended and unquantified liability to pay compensation will increase
under the proposed amendments.
[Return to table of Contents]
Footnotes:
[1] See for example Evidence, pp.857,
885, 1077, 1184, 1677-1678.
[2] Justice RS French, President,
and Patricia Lane, Registrar, National Native Title Tribunal, Response
to the Native Title Amendment Bill 1997, September 1997, p.64.
[3] Submission from FAIRA, p.6.
[4] Evidence, p.1077.
[5] Submission from the Commonwealth
Government, p.68. See also Evidence, p.2046.
[6] See also the Submission from
Mr Graeme Neate, pp. 15-17 for detailed criticisms of the drafting of
the proposed s.82(2).
[7] Evidence, pp.2052-2053.
[8] Aboriginal Land Rights (Northern
Territory) Amendment Act 1987, s.25 inserting a new s.50(2A) into
the original Act.
[9] Submission from the National
Farmers' Federation, p.10; Evidence, p.589-90.
[10] Evidence, pp.475-76, 1507-08.
[11] Evidence, p.476.
[12] Evidence, p.710.
[13] Evidence, pp.1612-13.
[14] Evidence, p.809.
[15] Justice RS French, President,
and Patricia Lane, Registrar, National Native Title Tribunal, Response
to the Native Title Amendment Bill 1997, September 1997, pp.4, 49.
[16] 'What price native rights?'
The Australian, 21 January 1997, p. 13; 'Deal makes native title
more valuable than freehold' Australian Financial Review, 3 February
1997, pp.1, 8.
[17] State of WA, R V Thomas
and others (Waljen), and Austwhim Resources NL and Aurora Gold (WA) Ltd,
Application Nos: WF96/3 and WF96/12, NNTT, unreported, 17 July 1996, pp.94-95.
[18] ibid., pp.95-96,
97.
[19] ibid., pp.90, 92.
[20] ibid., p.92.
[21] Evidence, p.1075.
[22] Submission from the Commonwealth
Government, p.12.
[23] Submission from the Commonwealth
Government, p.12.
[24] Evidence, p.707.
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