Chapter 2
The Effectiveness of the National Native Title Tribunal – s.206(d)(i)
Role of the Tribunal
2.1 Soon after the commencement of the Native Title Act, some developments
(such as the Brandy case [1]) entailed
the need for amendments. The Keating Government had tabled legislation
in 1995 to address such problems. In 1996, following its election, the
Howard Government pursued the opportunity to amend the Act to achieve
more workable legislation that would enable native title applications
to be processed more efficiently.
2.2 Accordingly, the 1993 Act was amended by the Native Title Amendment
Act 1998, which passed the Senate on 8 July and received Assent on
27 July 1998. The role of the Tribunal was substantially altered by the
new Act which (in response to Brandy) transferred certain functions
to the Federal Court while enhancing others performed by the Tribunal.
2.3 In addressing questions concerning the Tribunal's effectiveness,
it is important to note the statutory functions of the Tribunal as prescribed
by Section 108 of the Native Title Act 1993. Section 108 refers
to the principal functions of the Tribunal: applications, inquiries and
determinations. The amended Act expands the Tribunal's functions in relation
to mediation conferences (s.108(1A)) and provides for assistance and mediation
in accordance with any part of the Act generally (s.108(1B)). The Tribunal
also acts as an arbitral body to determine disputes over proposed mining,
mineral exploration or compulsory acquisition of land by governments for
transfer to third parties. Further, the Tribunal has an associated research
function.
2.4 In addition to these specific functions the Act requires the Tribunal
to operate in a way specified by s.109. This requires the Tribunal to
carry out its functions in a fair, just, economical, informal and prompt
way. The Tribunal may also take account of the cultural and customary
concerns of Aboriginal peoples and Torres Strait Islanders (but not so
as to prejudice unduly any party to any proceedings). In carrying out
these functions the Tribunal is not bound by technicalities, legal forms
or other rules of evidence.
Tribunal Workload
2.5 Since Mabo (No2) [2] there have been only
two Court determinations of contested native title cases (Croker Island
and Miriuwung Gajerrong). However, there have been five determinations
of consent agreements (Crescent Head, Hopevale, Western Yalanji, Moa and
Saibai). Currently, then, there is a total of eight native title Court
determinations, including Mabo.
2.6 This contrasts with the fact that there were more than 700 native
title claims lodged with the NNTT by June 1998. Clearly the native title
process can be potentially expensive and protracted for all participants
including the NNTT. Since early 1994 many parties to native title claims
have experienced significant difficulties. Some important claims, such
as that by Yorta Yorta, have been unsuccessful in the Courts.
Effectiveness
2.7 Determining the effectiveness of the NNTT is a not a straightforward
task. The Tribunal's functions (s.108) and methods of operation (s.109)
may be readily established: the core function of the Tribunal is to provide
mediation services to help resolve native title claims. Measuring the
effectiveness of mediation is problematic, however, given that a Tribunal
mediator has no power or authority to determine an outcome, and the effectiveness
of mediation may often be governed by considerations or factors beyond
the Tribunal's influence or control. In February 1999 the Tribunal addressed
the question of its effectiveness by publishing the document Native
title: a five year retrospective 1994-1998.
The Committee's Duty
2.8 In the course of the inquiry the Committee will compare the actual
functions and methods of operation of the NNTT, with those prescribed
by the Act, to ascertain the Tribunal's effectiveness. Emphasis will be
placed upon measuring the effectiveness of mediation, given the amendments
to the Native Title Act 1993.
Footnotes
[1] Brandy v Human Rights and Equal Opportunity
Commission (1995) 183 CLR 245.
[2] Mabo v Queensland (No2) (1992) 175
CLR 1.
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