Chapter 4 - The claims resolution process
Introduction
4.1
The Claims Resolution Review ('the Review') is an important part of the
strategy announced by the Attorney-General in 2005. The terms of reference for
the Review included a requirement to:
...examine the role of the National Native
Title Tribunal (NNTT) and the Federal Court of Australia (the Court) and
inquire into and advise the Government on measures for the more efficient
management of native title claims within the existing framework of the Native
Title Act 1993.[1]
4.2
In their report, Mr Graham Hiley QC and Dr Ken Levy observed:
There is room for improvement in relation to the communication
and coordination between the Court and the NNTT in relation to both particular
claims and overall approaches to claims management.[2]
4.3
The recommendations of the Review include both legislative and
administrative proposals as to how this might be achieved. These are broadly
supported by the NNTT, and the President acknowledged that the current scheme
'is in need of improvement'.[3]
4.4
A number of submitters and witnesses held concerns over the initiatives resulting
from the Review which have been included in the Bill. These concerns are
discussed in this chapter.
Aspects of the Claims Resolution Review included in the Bill
4.5
Schedule 2 of the Bill addresses most of the legislative issues raised
by the Review through provisions to clarify the relationship between the NNTT
and the Federal Court in the resolution of native title applications and strengthen
the powers of the NNTT in relation to mediation.
4.6
From the submissions and the evidence presented at the hearing, several
themes emerged as being of concern. These were:
- the appropriate interaction between the mediation functions of
the NNTT and the Court;
- the perception by some parties that NNTT mediation is
unsatisfactory when compared to the processes of the Court;
- the proposed powers of the NNTT to compel the attendance of
witnesses and the production of documents;
- the proposed requirements for parties to 'act in good faith' in the
course of mediation; and
- the proposal for the NNTT to conduct certain inquiries.
Concurrent mediation by the Federal Court and NNTT
4.7
Proposed paragraph 86B(6)(a) of the Bill removes the possibility of the Court
and the NNTT conducting mediation at the same time in relation to the same
matter. Similarly, paragraph 86B(6)(b) of the Bill would prevent the Court
requiring the parties to attend a conference with a Registrar while NNTT
mediation is on foot. The proposed amendments will mean that where the NNTT
process has been ineffective, the Court may then conduct mediation.
4.8
The Registrar of the Federal Court expressed reservations about the
operation of proposed subsection 86B(6)(b). His submission said:
...the changes may unnecessarily limit the
capacity of the Court to manage applications pending before it. Native title
applications are filed in the Court and are, until a determination is made, a
proceeding in the Court and therefore subject to its control in the exercise of
the judicial power of the Commonwealth. An incident of this power is the power
to supervise progress of the proceeding. The Bill proposes to prevent the Court from doing so as it appears to
limit the Court’s capacity to use the full range of case management options
normally available to it, including conferences of experts, to assist in the
resolution of issues as between the parties while a matter is in the course of
NNTT mediation.[4]
4.9
The Registrar also observed that there is the possibility that the
'proposal to exclude simultaneous mediations in the Court and the NNTT may be
limited to mediations attracting the protections of section 53B of the Federal Court
Act, which were the subject of the Review recommendations, and that only such
mediations (by the Court) should be precluded during the course of NNTT
mediation'.[5]
4.10
The committee asked the Attorney-General's Department to comment upon
the Registrar's submission. The Department explained that proposed subsection
86B(6) will not interfere with the operation of the Federal Court Rules which
allow case management by the Court to continue whilst mediation occurs. The
Department continued:
The provision is instead intended to preclude the Court from
referring a matter to mediation...or from making orders for parties to attend
conferences before a Court Registrar with a view to satisfying the Registrar
that all reasonable steps to achieve a negotiated outcome of the proceeding
have been taken'. [6]
4.11
The committee notes this advice from the Department suggests that
proposed subsection 86B(6) is not as limiting of the Federal Court's discretion
as the Registrar believes.
4.12
The committee also notes the comments made in the Review concerning
communication between the Court and the NNTT. The Review said:
We are aware that the dual management of claims by both the Court
and NNTT can cause frustration and confusion amongst parties. For example,
parties may be frustrated because Court orders for the provision of certain
material may divert resources and prevent the parties from actively engaging in
NNTT mediation. We believe that it is important for the Court and NNTT to
coordinate their efforts as far as possible to ensure that parties are able to
focus their limited resources on resolving the key issues in a particular
matter.[7]
Committee view
4.13
The committee agrees that improved communication and better integration
of the management of matters between the Court and the NNTT would resolve many
of the difficulties surrounding the resolution of native title matters. The
committee considers that the proposal to prevent concurrent mediation by the
Court and the NNTT will contribute to this. To this end, the committee supports
the amendments in proposed subsection 86B(6).
Effectiveness of NNTT Mediation
4.14
In relation to the proposals in the Bill to strengthen the role of the
NNTT in mediation, witnesses raised more general issues about the effectiveness
of the NNTT in conducting mediation. The comments of Mr Ron Levy, Principal
Legal Officer, Northern Land Council, were characteristic of this view:
Our experience of the tribunal is that, compared to not only the
court but also private mediators we have used, it just simply does not do
anywhere near as good a job. That is with the greatest respect to the president
and the other members, all of whom I know, respect and like. I believe that
they are endeavouring to do the best job they can. But all of our experience is
that they do not deliver the goods. In those circumstances, we would have
thought that the correct course, rather than vesting exclusive jurisdiction in
the tribunal regarding mediation, would be to expose them to the winds of
competition.[8]
4.15
Mr Andrew Chalk, Partner, Chalk and Fitzgerald Lawyers and Consultants,
told the committee:
I do not think the NNTT has been effective in its mediation
function, as a general rule. The experience in native title is not that
different from the experience in any other area of dispute, and that is that
without the threat of the Court taking the matter into its hands and reaching a
determination it may not be in the interests of any party.
...It should be for the Federal Court to program matters through
to a point where at least the written evidence is there for the other parties
to see. If mediation occurs then we would suggest that there should be a window
after that evidence is on where the mediation can then occur—via the NNTT, no
problem, but where it is a narrow window so the parties have to put their
evidence on and it is managed through the Court. It is not a cheap process, but
it is certainly a lot cheaper than spending years and years in mediation.[9]
4.16
Similarly, Mr John Stewart AM, of the National Farmers' Federation, told
the committee that 'history shows that the Native Title Tribunal does not have
a good track record in resolving mediation issues'.[10]
4.17
The Review observed that 'mediation seems to be at the centre of many of
the complaints about the ineffectiveness of the system'. The Review continued:
Although all mediations were originally conducted by the NNTT
(both before the 1998 amendments and since then upon referral under section
86B), there has been a trend in recent times for Federal Court judges to order
mediation under the Federal Court Rules, notwithstanding that a matter is still
being mediated by the NNTT. It is apparent that some judges are frustrated with
the NNTT mediation process and feel that a matter, or part of a matter (such as
overlapping claims), can be more readily resolved by a Court-appointed
mediator, usually a registrar... [11]
4.18
Mr Philip Vincent, counsel for the NNTC told the committee that the NNTT
has a place in mediation, but increasing the quality of the NNTT's mediation
skills would contribute to achieving greater efficiency and better outcomes for
parties. He continued:
The Native Title Tribunal can continue happily mediating but,
with respect, I suggest that it get its house in order by getting proper skills
in mediation and understanding what it is all about ...
...Any bona fide, good-faith lawyer would say, ‘Well, we can’t get
anywhere with the NNTT, and it may be because it doesn’t have the skills; it
doesn’t have the gravitas. The Court is willing, and it has shown itself to be
rather more expeditious...[12]
4.19
In their submission the MCA recommended that the internal capacity of
the NNTT to conduct mediation be increased (within the existing resources) to ensure
the competence of the NNTT for its increased role in mediation.[13]
4.20
Part of the NNTT's perceived limitations in mediation were attributed to
the training of mediators within the NNTT. The President of the NNTT, Mr Graeme
Neate, explained to the committee that, most, if not all, NNTT members have
completed basic courses such as LEADR,[14]
and a number of them have continued to update those skills. The NNTT also
developed its own week-long mediation training course with external
consultants.[15]
Further, Mr Neate told the committee that the members had a range of skills:
Either they were a legally qualified person with a certain
length of experience or they had, in the opinion of the Governor-General,
special knowledge in relation to Aboriginal and Torres Strait Islander
societies, land management dispute resolution or any other class of matters
considered by the Governor-General to have substantial relevance to the duty of
members. The duties of members ranged beyond mediation, including arbitration
matters and so on.[16]
4.21
In its submission, the NNTT cited the Report on the effectiveness of the
NNTT by the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Account,[17]
to refute criticism of the mediation capabilities of the NNTT.[18]
That report observed that the NNTT manages to balance competing interests and
although there is a perceptible level of frustration with the process, this was
rarely attributable to the manner in which the NNTT performs its functions.[19]
4.22
The NNTT submission also notes that the NNTT engages in creative
approaches to mediation which may not necessarily meet the requirements of
those who would like to see the role of the NNTT as 'cracking heads together.'[20]
4.23
For some witnesses it was the appropriateness of the training
undertaken, rather than the quantity of it that was of concern. Mr McAvoy, counsel
to Queensland South Native Title Services, told the committee that:
...any mediator who comes through the normal mediation training
processes or who undertakes a [LEADR] course or some other form of mediation or
arbitration course, who has the appropriate qualifications, and who has been
involved in mediation in the Courts and commercial arbitration, is going to
have problems coming from that background and going into the environment of
very political Aboriginal community negotiations because there are levels of
nuance and sophistication in these negotiation processes that they are simply
not going to be equipped to deal with. ... I am sure that all members of the NNTT
would be assisted from ongoing training.[21]
4.24
In response to this criticism, the President of the NNTT explained that
a nuanced approach to training is already occurring in the NNTT. He said:
...a whole range of other cultural and other factors means that we
have to concentrate on those things which are specific to the form of practice
that we are engaged in. We have taken active steps in recent years to have
tailored training for that purpose.[22]
4.25
Overall, the view persists that in some way Court administered mediation
is more efficient than NNTT administered mediation. The President of the NNTT
suggested that 'the issues that have been raised by a number of witnesses seem
to go beyond mere training and mediation to what seems to be a core issue and
that is how much clout the NNTT can bring to the mediation process'.[23]
The President quoted the Review at paragraph 4.33:
Some parties see NNTT mediation as being a ‘soft’ process and
consider that timely and effective outcomes are more likely to be achieved
through Federal Court mediation. However, there appears to be no reason to
assume that another body with the same constraints as those which presently
exist in relation to NNTT mediation could have been more effective than the
NNTT. [24]
Committee view
4.26
The committee notes the concern about the capacity of the NNTT to
undertake mediation. There is a lack of confidence in the process on the part
of some parties, both in terms of the time taken and the efficiency of the
process. The concerns centre on the effectiveness of NNTT mediation when
compared with Federal Court administered mediation, and the qualifications of
the mediators in the NNTT.
4.27
Much of the criticism of the NNTT has come from legal practitioners who
may have expectations of the NNTT based on their experience of the Federal Court.
As the President of the NNTT pointed out, the NNTT is a different environment
from the Court, and the criticism does not take into account the nature of the NNTT's
statutory responsibilities. The President also notes that there is no national
accreditation scheme for mediators, and there is no generally available
training in mediating native title applications unlike general mediation
skills.[25]
The committee welcomes the advice from the NNTT that it is currently developing
a scheme for professional development and appraisal of members.[26]
4.28
The committee understands the perspective of practitioners who are
aiming to have matters resolved quickly, and therefore with less cost, and who
find the Court environment better placed to achieve this when compared to the NNTT.
However, the NNTT is not a court, and must deal with matters according to its
statutory remit.
4.29
Nevertheless, the committee considers there should be a more focussed
approach by the NNTT to mediation, especially given that the amendments in the Bill
propose to strengthen the powers of the NNTT in relation to mediation. This
could be achieved by enlarging the mediation training provided to members. In
the committee's view, the two weeks' training referred to at the hearing,[27]
even for people who bring extensive dispute resolution experience to the NNTT, seems
inadequate in a specialised area of dispute resolution.
Additional NNTT mediation powers
4.30
The Review also recommended (recommendation 2) that the NNTT be provided
with statutory powers to compel parties to attend mediation conferences and to
produce certain documents for a mediation within a nominated period or by a
nominated date. Items 45 and 47 of Schedule 2 implement this recommendation.
Failure to comply allows the presiding NNTT member to report the failure to the
Court, which may result in sanctions by the Court.
4.31
The committee notes that these powers (often called coercive powers) are
usually given to Royal Commissions and similar bodies. In his submission, the
Registrar of the Federal Court raised four issues about these powers of
compulsion, and expressed concerns about the constitutionality of the proposed
amendments. In summary, the four issues were:
- The powers are likely to be exercised by people whose primary function
is mediation. They may be less equipped to formulate orders which are readily
enforceable.
- The governmental functions of state and territory governments are
likely to be affected. A government’s participation is informed by its own
policies and practices, and directions by the NNTT could raise legal or
possibly constitutional issues, by compromising its ability to act in
accordance with its policies; this, in turn could lead to second order
litigation and further delays.
- Administrative directions by the NNTT (which are formulated by
persons not necessarily qualified to do so) will require an effective
enforcement regime which will ultimately rely on the Court. This is likely to
add to delays and costs.
- The proposal raises constitutional issues. The power to give
directions in the NNTT is an administrative order, not a judicial one, and
could be subject to judicial review under either section 39B of the Judiciary
Act 1903 or the Administrative Decisions (Judicial Review Act ) 1977. [28]
4.32
The NNTC submitted that these powers are incompatible with a mediation
function. The NNTC added:
The power in the NNTT to compel production of legally privileged
material, in compulsive process will hinder the ability of parties to properly
and confidently prepare their cases and to advise their clients and is a basic
breach of rights.[29]
4.33
The Carpentaria Land Council was also opposed to the proposal for
similar reasons. In recommending the proposal be abandoned, their submission
said:
The power to compel the production of documents is appropriate
to a forum that is concerned with ascertaining and making findings in relation
to facts in issue. The NNTT is not and should not be so concerned. The proposal
to empower the NNTT to compel the production of documents for the purpose of a
mediation conference is misconceived and inappropriate.[30]
4.34
The submission of the Aboriginal and Torres Strait Islander Social
Justice Commissioner also considered that conferring coercive powers on the NNTT
is incompatible with the mediation function. The Commissioner suggested that if
the amendments were to be enacted, that they should:
- include rights to object to the orders on the grounds of
confidentiality, privilege and prejudice; and
- be the subject of guidelines as to their exercise.[31]
4.35
The Attorney-General’s Department was asked to comment upon the
possibility that the proposal to grant coercive powers of the NNTT may be
unconstitutional. The Department accepted the Federal Court Registrar's view
that 'ultimately, under our constitutional arrangements, it is simply not
possible to set up a system under which an administrator may give binding
statutory directions which do not attract a need for judicial enforcement and
which are exempt from judicial review'.[32]
4.36
However, the Department argued that:
Instead, proposed subsection 86D(3) provides a mechanism for the
Court to enforce a direction given by the member presiding over a mediation
conference. ...In the event of breach of the Court order it is this order that
would be enforced. It would not be the situation of a judicial body enforcing
an order made by an administrative body.[33]
4.37
The Department noted that:
...under the existing provisions of
the Native Title Act Tribunal members are able to make certain directions
regarding the conduct of mediation conferences, including directions to exclude
or limit parties to the native title determination application from attending
conferences (see section 136B) and directions governing the disclosure of
information given at conferences (see section 136F). We are not aware of any
constitutional concerns having been raised in relation to these provisions,
which were enacted in 1998, nor of any collateral litigation in respect of
these provisions.[34]
4.38
The Department considered that because any direction would ultimately be
enforced by the Court, this would address the concerns about the
incompatibility of the direction provisions with the mediation role of the NNTT.[35]
4.39
In its supplementary submission, the Department indicated that the Court's
concern about the competence of NNTT members to make directions is unfounded.
The Department noted examples in other legislation of non-judicial members
making directions and these may or may not be upheld if challenged. The NNTT,
according to the Department, may draw on drafting assistance from internal
legal staff. Further, the amendments envisage a closer working relationship
between the Court and the NNTT in the management of native title legislation,
and by inference, in working out what is and is not acceptable in the drafting
of directions.[36]
4.40
Further, the Department advised that any problem with NNTT directions
experienced by the state and territory governments in the exercise of their governmental
functions may be put to the Court, 'if the matter subsequently comes before the
Court to consider itself making an order'.[37]
Committee view
4.41
The committee accepts the evidence of the Attorney-General's Department
that no constitutional issue arises in respect of the grant of coercive powers
to the NNTT. However, the committee is concerned by the potential for delays to
proceedings while the directions of the NNTT are enforced through the Court,
and the possibility of privileged material being the subject of a direction by
the NNTT.
4.42
The committee recommends that the provisions should be modified in three
ways:
- first, by amending proposed subsection 136B(1A) and proposed
section 136CA to include rights for parties to object to directions on the
grounds of confidentiality, privilege and prejudice;
- second, by the development of guidelines as to the exercise of
these coercive powers; and
-
third, that the Court and the NNTT develop a protocol which will
allow non‑compliance with the directions of the NNTT as to documents and
appearance of parties to be dealt with as a matter of priority by the Court.
Obligation to mediate in good faith
4.43
Recommendation 4 of the Review proposed that consideration be given to imposing
an obligation on parties to act in good faith in relation to native title
mediations and to developing a code of conduct for parties involved in native
title mediations.[38]
This recommendation is given effect by proposed subsection 136B(4) and proposed
sections 136GA and 136GB. The combined effect of these provisions is that all
parties and their representatives are required to act in good faith in relation
to mediation before the NNTT.
4.44
The Explanatory Memorandum explains that failure to negotiate in good
faith can result in the matter being reported to Commonwealth, state or territory
ministers, the Secretary of Commonwealth departments who fund participants in
native title proceedings, legal professional bodies, and the Court, as
appropriate.[39]
4.45
The Attorney-General's Department stated that it had received, from the NNTT,
a number of examples of behaviour which warranted the inclusion of a 'good faith'
provision. These included:
- abusive and threatening behaviour;
- personal violence during a mediation conference;
- persistent non-compliance with agreed actions, leading to
stalling of the process;
- persistent last minute non-attendance at meetings;
- publicly releasing confidential material in contravention of
agreement reached about nondisclosure in relation to the mediation process; and
- adopting a negotiation position contrary to the instructions of
clients.[40]
4.46
The proposal for an obligation to act in good faith was supported by the
Aboriginal and Torres Strait Islander Social Justice Commissioner, who noted:
These amendments are in my view an appropriate measure aimed at
addressing any perception there may be that mediation by the NNTT need not be
taken seriously.[41]
4.47
However the Commissioner raised concerns as to the enforceability of
such an obligation:
A presiding member of the NNTT will not find it easy to identify
a party’s behaviour as a breach of the requirement to act in good faith and to
report accordingly. He or she may find it easier to report on behaviour that
is, in his or her opinion, unnecessarily hindering or delaying the progress of
mediation.[42]
4.48
Mr McAvoy, counsel for Queensland South Native Title Services, supported
the proposal but considered that any attempt to define the term 'in good
faith', would 'bog the whole process down in an administrative nightmare'.[43]
4.49
The proposal was opposed by the NNTC.[44]
In evidence, Mr Philip Vincent, counsel for the NNTC, responded to a question
about what constitutes bad faith:
This is one of the problems; it could be in the mind of the
beholder. At the moment, the few guidelines on good faith that have emerged in
the Native Title Tribunal relate to being there and answering letters. That is
really not enough if you are going to get people to negotiate meaningfully. It
is a matter not of directing that they have good faith but of enthusing them
into the negotiation process on the basis that their rights are going to be
fairly accommodated and the outcome is something which they can respect and
honour ... I personally believe that it ... is a state of mind. ... You can only act
on a person’s state of mind by encouragement, enthusiasm and getting them to
change it through personal persuasion.[45]
4.50
Mr Ron Levy, Principal Legal Officer of the Northern Land Council saw
the good faith provision as:
...just a recipe for litigation, especially when it is almost
impossible to prove people have not acted in good faith. All the case law is
that it is impossible. ...Many of the NNTT members are not lawyers, and I think
they will make mistakes—mostly honest mistakes. I think this will all lead to
litigation and uncertainty and people wasting their time. What we really want
is people to reach agreement or to have the matter prosecuted to a conclusion.[46]
4.51
The definition of 'in good faith' was also discussed with
representatives of the MCA who supported the amendment while noting that it is
'important for there to be very clear expectations, protocols, guidelines,
right at the outset.'[47]
4.52
The NNTT's submission supported the proposal. The submission notes that an
obligation to act in good faith will provide 'an incentive to improve behaviour
and to focus the attention of the parties and their representatives on the
seriousness of the mediation process and the need to approach mediation in a
professional manner and with a spirit of good will'.[48]
4.53
However, the NNTT acknowledged that the imposition on parties of an
obligation to act in good faith is not a complete solution:
...there are instances where some parties will refuse to mediate
on the basis that there are points of law requiring clarification or that the
claim itself is fundamentally flawed. It is not a failure to act in good faith
to refuse to mediate if there is a legitimate basis for doing so. However, the
party refusing to mediate should explain their position.[49]
4.54
The NNTT also pointed out that these amendments are not without
precedent: the Native Title Act currently contains good faith provisions: for
example in relation to previous non exclusive possession acts (subparagraph
23F(3)(c)(ii)). Further, there are requirements to mediate in good faith in
other Australian legislation.[50]
4.55
A representative of the Attorney-General's Department indicated that it
is developing a code of conduct to support the good faith provision; the code
once developed will then be distributed for comment. The code will not be
prescriptive, nor will it have the status of a regulation.[51]
Committee view
4.56
The committee welcomes the Attorney-General's Department's advice that
the 'good faith' provisions are intended to be supported by a code of conduct. The
consultation on the content of the code with interested parties may go some way
to alleviating the concerns about what constitutes acting 'in good faith'.
4.57
The committee considers that the code should be developed without delay,
to ensure that parties before the NNTT are very clear about their obligations
in mediation. The committee does not consider that there is anything to be
gained by defining 'in good faith' further in the legislation, and agrees with
the witnesses who saw any attempt at doing so as having the potential to slow
the native title process unnecessarily.
Review function of the NNTT
4.58
The Bill inserts a new Division 4AA into the Native Title Act which
allows the NNTT to conduct a review of documents to establish whether a native
title claim group holds native title rights and interests. The Division also
allows the NNTT to inquire into an issue or matter relevant to the
determination of native title.
4.59
A review may only occur in the course of mediation by the NNTT and
participation will be voluntary. The coercive powers of the NNTT will not
apply.
4.60
The NNTC opposed this proposal on the grounds that it abrogates the
'without prejudice' nature of mediation proceedings.[52]
Mr Philip Vincent, counsel to the NNTC, told the committee:
With the review process, it is said that it is subject to the
normal confidentiality provisions, but the fact is that the reviewer has the
power simply to send off the report to the Court. So I cannot see how he can
send off a report to the Court about the result of a voluntary review, which
presumably is a finding as to whether there is likely to be native title or not
or whether a party has rights and interests in the land, and which should be
taken into account. It is said to be for the purpose of mediation, to help the
parties to see the strengths and weaknesses of their own position. If the NNTT
has the power simply to send that off to the Court, it will immediately
compromise the position of the judge. It would be as if the evidence were then
before him.[53]
4.61
The Aboriginal and Torres Strait Islander Social Justice Commissioner
also opposed the insertion of Division 4AA. In principle, his objections
centred around the fact that reports may be presented to the Federal Court and
non-participating parties, without the consent of the participating parties. In
addition, the Commissioner noted:
The proposed review and inquiry provisions...threaten to create
even greater confusion by enlarging the role of the NNTT to include
quasi-judicial investigations into the factual and legal issues at the heart of
a native title claim, the determination of which is, appropriately, currently
the sole domain of the Federal Court.[54]
4.62
Mr Ron Levy of the Northern Land Council observed that:
The proposal that the NNTT duplicate the Court's function by
conducting parallel inquiries as to the existence of native title is inherently
inefficient – it will divert resources, engender legal challenge and not assist
or enhance the Court's judicial function.[55]
4.63
The Attorney-General's Department told the committee that these reviews
and inquiries, 'are only two more tools and it is certainly not envisaged that
they would be deployed as a matter of course in claims'.[56]
Committee view
4.64
The committee notes that the Attorney-General's Department does not
envisage that these measures will be used as a matter of course. However, the
fact remains that these measures will be available and they appear to duplicate
the Court's function. Further, it is not clear to what extent the availability
of these reviews will contribute towards the expeditious resolution of native
title matters.
4.65
The committee recommends that the Attorney-General's Department should
monitor the use and operation of the review provisions in proposed Division 4AA
and report to the Parliament on the effectiveness of the provisions after two
years of operation.
Other amendments
4.66
In a submission to the inquiry, Telstra took exception to the proposed
amendments to subsection 84(5) and section 87A of the Native Title Act.
4.67
The proposed change to subsection 84(5) requires the Court to be
satisfied that the joinder of a respondent at the end of the notification
period under section 66 is in the 'interests of justice'.[57]
4.68
Telstra considers the amendment unnecessary on the basis that the Court
already has a discretion to refuse joinder and exercises it.[58]
Telstra also indicates that the proposal introduces an element of uncertainty
because of the lack of definition of the interests of justice, and submits that
there be no change or, alternatively, that the minimum requirements for joinder
within the notification period be that a person has 'an interest in land or
waters that may be affected by the determination.'[59]
4.69
The significance of the amendment compared to the current practice is
explained in the Bills Digest:
The amendments limit the range of people to whom the Registrar
will give notice of proceedings and stipulate a slightly more restrictive range
of those who are automatically a party to proceedings (the amendment requires
an ‘interest in relation to land or waters’ whereas previously it was simply an
‘interest’). The Court retains a capacity to join parties if it is satisfied a
person’s interests may be affected by the proceedings, and adds it is in the
‘interests of justice’ to do so. [60]
4.70
The proposed amendment to section 87A would allow part of a native title
claim proceeding to be settled by a consent determination. The proposed section
limits the requirements for consent to only those respondent parties who hold a
publicly registered proprietary interest in relation to land or waters in any
part of the determination area.
4.71
The submission from Telstra points out that those with unregistered
interests or non-proprietary interests are not required to be involved in such
agreements.[61]
Telstra's concern arises from the fact that many of its facilities may be
installed in areas in which its interests are not included in any public
register.
4.72
The Bills Digest notes that this amendment addresses the need to
'encourage more efficient resolution of native title matters'.[62]
Committee view
4.73
The committee acknowledges that Telstra has a significant interest in
matters affecting native title. Telstra is the beneficiary of unregistered
interests which contribute to the efficiency of communications across Australia,
and any significant impediment to its ability to do so should be examined, and
where necessary, rectified.
4.74
It appears to the committee that there is a small risk that the
requirements that joinder be 'in the interests of justice' will create some
uncertainty. However, the committee considers that the provision strikes an
appropriate balance between streamlining the claims process and ensuring that
those who have a substantive interest have the opportunity to join the
proceedings.
4.75
The committee notes that proposed section 87A is intended to encourage
the efficient resolution of native title matters. However, the committee is
concerned as to the nature of the unregistered interests and non-proprietary
interests which may be affected by the provision. It can be argued that the
entitlement of any such party would be very limited, but at the same time it is
important that a communications body is at least notified of any proposal
affecting its interests ─ registered or unregistered.
4.76
The amendments to section 87A suggested by Telstra should be examined by
the Attorney-General's Department and, if appropriate, considered for inclusion
in the further amendments to the Native Title Act proposed for later this year.
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