Chapter 3
Issues
3.1
With one exception, the provisions of the Bill met with general approval
among submitters.[1]
Significantly, the primary body representing users of the native title system,
the National Native Title Council, regarded the changes as uncontroversial.[2]
Some submitters offered general support for the Bill's objectives with limited
qualifications, while still others argued for changes to native title arrangements
that were not foreshadowed in the Bill.[3]
The main critic of the Bill was the National Native Title Tribunal (NNTT),
which objected to the provisions of Schedule 1, which would allow the Federal
Court of Australia (the Court) to refer cases to mediation to parties other
than the Tribunal.[4]
Mediation
3.2
Perhaps the most controversial of the changes the Bill would introduce
are those that remove the compulsory reference of matters for mediation to the
NNTT. The Government's proposals aim to address a very significant backlog of
claims for settlement. The committee heard that 145 determinations were made
from 1994, when the Native Title Act was passed, to the end of 2008. The
average time taken to finalise these was about 6 years where the application
was by consent, or 7 years where the outcome was litigated. About 475 claims
are currently on foot in the system. Over a quarter of cases have been current
for at least 10 years. It is estimated that the last of cases currently active
will not be concluded until 2035.[5]
3.3
The Tribunal's concerns derive largely from the Bill's proposal to
centralise the management of native title cases in the Court, and hinge on the
assertion that the amendments would not necessarily bring about a faster or
more efficient claims settling process.
3.4
The NNTT argued that the Bill's passing could give rise to
accountability issues when mediators operate outside a 'governmental
institution', and would see fewer resources being available to fund 'flexible
and innovative solutions...in a timely manner'.[6]
3.5
The NNTT submitted to the committee that the amendments would encourage
a system that was 'ad hoc, fragmented, less efficient [and] more expensive to
the Commonwealth' and that 'there could be confusion, and lack of clarity,
about the respective powers and functions of the Court and the Tribunal –
especially the extent of the Court’s capacity to direct the Tribunal to do
things (and possibly to allocate Tribunal members to mediate particular matters,
and to direct how mediation is to be conducted), which raise legal and resource
issues'.[7]
The NNTT argued that:
One [concern] is that the court will be able to refer part or
the whole of a matter to a person or body for mediation. It may be that the
matter itself is then broken up into segments—somebody deals with a particular
issue and somebody else deals with another issue...One of our concerns is that
when matters are referred to us generally, we can develop a regional strategy
obviously in conjunction with the court directed by court orders and so on
which have regard to the respective resources of the parties and can put some
sort of system in place...Our concern is that if these matters are hived off to
individuals or bodies particularly for particular segments some of that overall
coordination of a particular claim and then the coordination of that claim with
a broader region may be disrupted and indeed there may be duplication or
fragmentation of services, which in the end could become more expensive to the
Commonwealth rather than less so.[8]
3.6
Mr Neate argued that, on the other hand, the current system:
clearly ...identifies the respective roles of the Court and the
Tribunal. When both institutions work in a coordinated and cooperative manner,
timely and effective native title and related outcomes (i.e., broader
settlements) are achieved. The Tribunal considers that the current scheme for
the mediation of native title claims should be retained.[9]
3.7
While the NNTT made much of its particular expertise and experience in
addressing native title issues[10],
the committee is mindful of the conclusions of Australian Labor Party and
Australian Greens' Senators in the committee's 2007 inquiry into the provisions
of the Native Title Amendment Bill 2006, when they found that:
During the inquiry, significant concerns were expressed about
the expansion of the NNTT's powers, particularly as most stakeholders do not
have confidence in the NNTT's capacity or expertise to conduct effective
mediation...Evidence received by the committee from NTRBs unanimously rejected
the expansion of the NNTT's mediation function, citing past statistics and
experience...like a majority of stakeholders, Labor and Greens Senators are not
convinced that the NNTT is capable of exercising these expanded powers
effectively, or properly.[11]
3.8
The NNTT's contention that the changes will not bring about improvements
in the claims process was disputed by the Court. In his evidence to the
inquiry, Registrar Warwick Soden told the committee that the change was:
...welcomed by the Court as it supports its long held view that
results are obtained through a flexible and responsive approach to mediation.
This view is based on the Court’s experience of the beneficial results of
active case management by the Court in some native title proceedings... Under the
proposed amendments the Court will be able to apply innovative approaches to the
emerging issues, including referral of a matter to the Tribunal for mediation, court
annexed mediation, the management of expert evidence, early neutral evaluation,
case conferences and other practical [alternative dispute resolution]
procedures.[12]
3.9
In his evidence at the hearing, Mr Soden set out at length the Court's
experience with case management, and told the committee that:
The court has a wealth of experience in managing a whole lot
of different cases, including native title cases. It applies the principles of
active case management. It has an international reputation for the way in which
it is innovative and brings to bear the best approach to the issues that need
to be resolved in different cases. In terms of coordination across the country,
the court has specialist lawyers in each of the states and territories or
former territories across Australia. They are experts in native title. They
work closely with the judges in each of those states, particularly the native
title judges who have responsibility for coordination in each state. They are
in a very good position to give advice and assistance to the judges about what
needs to be done in a particular matter to ensure coordination and this
constant discussion between the judges across the states about coordinating issues,
including priorities and the like.[13]
3.10
Mr Soden took the view that the Court was in the best position to decide
on which mechanism was in the best interest of each case, including the
existing option of referring the case to the NNTT, and impressed on the
committee the flexibility that the changed arrangements would bring to the
management and resolution of cases. He went on to say that:
It may be that a special referral to a case management
conference under the direction of a judge might be most appropriate. It might
be that a special hearing on a specific issue that needs to resolved before any
mediation could take place would be the most beneficial thing to be done in a
particular case. It might be that the court thinks the best thing to do is
refer the matter to one of the court’s staff or another particular person who
was not a member of the tribunal to exercise the mediation powers of the court
by referral. It might even be a referral to the tribunal in the ordinary
course.[14]
3.11
Impressive though these options may be for increasing the tempo of
settlements, the committee is mindful of the need for care when appointing
mediators. The Bill conveys considerable flexibility on the referring judge,
and the skill, expertise and qualifications of the candidate require
examination, not to mention the identification of any potential for conflicts
of interest. While Mr Soden submitted that such matters would 'automatically'
be considered prior to any referral, the method of assessment, particularly for
a mediator unknown to the Court, was not clarified in evidence.[15]
3.12
However, Mr Soden sought to reassure the committee that the Court was
aware that much was expected of it under the changes, and that it was confident
of its ability to deliver:
I just wanted to reiterate the court’s view that we take this
proposed responsibility very seriously. We know it will come with a degree of
accountability. We know there are a lot of expectations to be placed upon us as
a result of the extra responsibility and accountability, but we embrace that.
These cases are crying out for a new and innovative approach to be taken. We
believe, with the broad experience we have not only in this jurisdiction but in
the way in which cases can be looked at and treated differently, we will bring
those changes which will speed up the whole process and produce outcomes.[16]
3.13
The committee was further encouraged by evidence that the amendments
were framed in the context of appropriate consultation by the
Attorney-General's Department. The committee heard that representatives of the
Attorney-General met with officers of the Court and the NNTT on three occasions
to discuss the proposed amendments. This followed the release of a discussion
paper in December 2008, which elicited 30 submissions.[17]
The NNTT reassured the committee that they would continue to work closely with
the Court to administer the new scheme.
3.14
The committee is mindful of the imperative to put in place a more
efficient process for hearing and deciding native title claims. While the
arguments of the NNTT and others that native title is inherently complex and
drawn-out, the committee is impressed by the innovations and flexibilities
offered by the Federal Court taking a more central role in case management. The
capability of the Court is clear, and the committee considers there is good
reason to anticipate a smoother and more expeditious flow of native title case
management as a result of the changes being implemented. For these reasons, and
in the absence of substantive criticism[18]
of other aspects of the Bill, the committee recommends the Bill be passed.
Representative Bodies
3.15
The Torres Strait Regional Authority (TSRA) argued for an amendment to
section 201B(1) of the Act which currently provides that Prescribed Bodies
Corporate (PBCs), which are the rights-holding bodies for native title
claimants, are not eligible bodies for consideration as Native Title
Representative Bodies (NTRBs). TSRA called for the relaxation of this
restriction, at least in respect of the Torres Strait, on the basis of the
unique and special circumstances which largely derive from the Torres Strait
Regional Sea Claim that is currently awaiting settlement.[19]
3.16
The Committee took no other evidence on this topic, and in any case
further committee attention and examination might best take place when the
details of the Sea Claim settlement are known. Accordingly, the committee makes
no recommendation in respect of this matter.
Australian Human Rights Commission
3.17
The Australian Human Rights Commission (AHRC) made a substantive submission
to the inquiry covering a number of issues. The Commission recommended
amendments to the Bill going to, for example:
-
consultation by the Court with parties to a mediation;
-
the regulation of the number of parties to a claim;
-
the requirement for court orders to be 'appropriate';
-
the application of the Evidence Act 1995 to native title
claims;
-
funding of participants in a native title claim; and
-
the expansion of ministerial discretion in appointing NTRBs.
3.18
While these and other recommendations warrant further examination, the Commission's
submission was received after the committee's public hearing, denying the
opportunity to test the propositions put forward and benefit from any
alternative views expressed by other interested parties. Accordingly, the committee
suggests that the Government consider the points raised by the Commission with
a view to incorporating them into future native title reform.
Recommendation
3.19
The committee recommends that the Bill be passed.
Senator Trish Crossin
Chair
Navigation: Previous Page | Contents | Next Page