Chapter 5 - Summary and conclusion
5.1
This Bill is the first major amendment to the Native Title Act since the
amendments undertaken in 1998 in response to the decision of the High Court in Wik
Peoples v Queensland.[1]
The committee is pleased to note that the package of proposed amendments is the
outcome of rigorous review and consultation processes including the independent
Native Title Claims Resolution Review (the Review). In essence, these
amendments fine-tune a unique legislative scheme for the recognition of the
customary rights of Aboriginal peoples and Torres Strait Islanders to land and
waters.
Native Title Representative Bodies
5.2
The capacity of Native Title Representative Bodies (NTRBs) to undertake
their responsibilities has been canvassed in this inquiry. The committee supports
the capacity building initiatives the Government is undertaking with NTRBs.
However, as noted in Chapter 3, the proposals for limited term recognition may
militate against the effectiveness of NTRBs. Accordingly the committee recommends
amending the Bill to increase the minimum period of recognition of an NTRB to two
years.
Recommendation 1
5.3
The committee recommends that Schedule 1 of the Bill be amended to
increase the minimum period of recognition of a Native Title Representative Body
to two years.
Prescribed Bodies Corporate
5.4
The committee considers that the resources available to Prescribed
Bodies Corporate (PBCs) will be critical to the successful management of land
over which native title has been granted. The committee welcomes advice that
the Federal Government has decided to fund PBCs in some circumstances. The
committee recommends that the proposed funding arrangements should be finalised
and implemented as a matter of high priority.
Recommendation 2
5.1
The committee recommends that the Federal Government finalise and
implement the proposed funding arrangements for Prescribed Bodies Corporate as
a high priority.
Roles of the NNTT and the Federal Court
5.5
The role of the National Native Title Tribunal (NNTT) was significantly
altered by the High Court's decision in Brandy v Human Rights and
Equal Opportunity Commission barely two years after the Tribunal's
establishment.[2]
As a result of that decision, the Federal Court exercises most determinative
functions in relation to native title, while the NNTT has continued to provide
registration, education, research and mediation services.
5.6
In the Review, Mr Hiley and Dr Levy noted:
The present system is multi-dimensionally inefficient. This has
led to an ineffective system where the public monies expended have created much
activity for lawyers and others, but has resulted in little gain for Indigenous
people. While some participants in the system have gained (particularly those
providing legal and anthropological services), native title claimants and
respondent parties have not been well served by a system which tends to advance
claims very slowly.
We both agree that the NNTT is the best placed institution to
advance agreement-making. We also agree that its performance will be enhanced
by giving it additional powers and ‘teeth’.[3]
5.7
The amendments in Schedule 2 of the Bill would return some of the
responsibility for claims resolution to the NNTT. The committee generally
supports these changes, including the requirement that parties act in good
faith during mediation. The committee welcomes the development of a code of
conduct to support the proposed 'good faith' provisions. The committee
recommends that this code of conduct be developed without delay and made
available to all parties in mediation before the NNTT.
Recommendation 3
5.8
The committee recommends that the code of conduct for parties participating
in National Native Title Tribunal mediation be developed without delay and be made
available to all parties in mediation before the National Native Title Tribunal.
5.9
The committee supports the amendments in Schedule 2 of Bill which will
empower the NNTT to direct parties to produce documents or attend mediation. However,
the committee recommends that the powers should be subject to a right of
parties to object to directions on the basis of confidentiality, privilege or
prejudice.
Recommendation 4
5.10
The committee recommends that the proposed powers of the National Native
Title Tribunal to give directions concerning the production of documents
(proposed section 136CA) or attendance at mediation (proposed subsection
136B(1A)) be amended to include rights to object to the directions on the
grounds of confidentiality, privilege and prejudice.
Recommendation 5
5.11
The committee recommends that guidelines for the exercise of the powers
to give directions in proposed subsection 136B(1A) and proposed section 136CA be
developed as a matter of priority.
5.12
The relationship between the Federal Court and the NNTT will be critical
to the effectiveness of these proposed changes. The committee considers that
the Court and the NNTT should develop a protocol which ensures that any failure
by parties to comply with directions of the NNTT is dealt with as a matter of
priority by the Court.
Recommendation 6
5.13
The committee recommends that the Federal Court and the National Native
Title Tribunal develop a protocol which will allow non-compliance with the
directions of the National Native Title Tribunal as to the production of documents
and the attendance of parties at mediation to be dealt with as a matter of
priority by the Federal Court.
5.14
The committee is also concerned at the lack of confidence in the NNTT
mediation service expressed by some witnesses, particularly in light of the
increased role proposed for the NNTT under the Bill. The committee therefore
recommends that the NNTT develop an ongoing mediation training program for its
members.
Recommendation 7
5.15
The committee recommends that the National Native Title Tribunal develop
an ongoing mediation training program for its members having particular focus
upon the characteristics and requirements of mediating native title matters.
5.16
The committee also supports the introduction of new Division 4AA which
provides for the NNTT to conduct a review of documents regarding whether a
native title claim group holds native title rights and interests. However, the
committee recommends that the operation of Division 4AA be monitored by the
Department. Further, the committee recommends that the Department provide the Parliament
with a report on the effectiveness of proposed Division 4AA once the provisions
have been in operation for two years.
Recommendation 8
5.17
The committee recommends that the operation of proposed Division 4AA be
monitored by the Attorney-General's Department and a report prepared for the Parliament
after two years operation to assess the following:
- the extent to which these measures are used;
- the effect they have on the resolution of claims in terms of both
cost and time;
- the extent, if at all to which the parties' rights are
compromised by this process; and
- the extent to which there is duplication between the functions of
the Court and the National Native Title Tribunal in this area.
5.18
Schedule 2 of the Bill also makes amendment to section 87A of the Native
Title Act, and would allow part of a native title application to be settled
without the consent of parties who hold an unregistered or non-proprietary
interest in land. The committee is concerned about the impact of these
amendments on such parties. Accordingly, the committee recommends that the
Government consider for inclusion in further amendments to the Native Title
Act, anticipated later this year, the amendments to section 87A proposed by
Telstra.
Recommendation 9
5.19
The committee recommends that the Federal Government consider inclusion
of the amendments to section 87A proposed by Telstra
in the further amendments to the Native Title Act 1993 planned for later
in 2007.
Conclusion
5.20
While it is possible that the number of native title claims may have
peaked, the number awaiting resolution merit a more efficient process for their
disposal. That process will be supported by the changes proposed by the Bill.
Recommendation 10
5.21
Subject to the preceding recommendations, the committee recommends that
the Bill be passed.
Senator Marise Payne
Chair
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