Native Title Report 2009: Chapter 3
Native Title Report 2009
Chapter 3: Towards a just and equitable native title
system
- 3.1 Improving the native title system – the time for change is now!
- 3.2 Recognition of traditional ownership
- 3.3 Shifting the burden of proof
- 3.4 More flexible approaches to connection evidence
- 3.5 Improving access to land tenure information
- 3.6 Streamlining the participation of non-government respondents
- 3.7 Promoting broader and more flexible native title settlement packages
- 3.8 Initiatives to increase the quality and quantity of anthropologists and other experts working in the native title system
- 3.9 Conclusion
3.1 Improving the native title system – the time
for change is now!
As I discussed in Chapter 1 of this Report, there was a new energy and a stir
of activity in the native title sector during the reporting period.
In my previous two Native Title Reports, I have strongly argued the
need to reform the native title system. Stakeholders from all sectors engaged in
the native title system have also stressed the need for the Government to take
significant steps to ensure that the system meets the original objectives set
out in the preamble to the Native Title Act 1993 (Cth) (Native Title
Act).
The federal Attorney-General has responded to this call and has committed to
improving the operation of the native title system. He has clearly identified
reform to the native title system as a strategic
priority.[1]
The Attorney-General has advanced reforms to the native title system aimed at
fostering ‘broader, quicker and more flexible negotiated outcomes for
native title claims’.[2] In
particular, the Native Title Amendment Act 2009 (Cth) commenced on 18
September 2009. I have outlined these reforms in Chapter 1 of this Report. The
Minister for Families, Housing, Community Services and Indigenous Affairs has
also worked with the Attorney-General and native title stakeholders to bring
about positive change in the system, with a particular focus on maximising the
benefits derived from native title
agreements.[3]
However, further reform is required to realise the hopes of Aboriginal and
Torres Strait Islander peoples for the system.
There are signs that the
Attorney-General recognises this.
The Government has indicated that it is receptive to constructive and
concrete ideas for reform. For example, the Attorney-General has stated:
I have an open mind as to how the operation of the system can be improved and
am willing to explore ideas for reform such as the amendments you proposed in
your 2008 Report.The Government is committed to genuine consultation with Indigenous people
and other relevant native title stakeholders in exploring ways to improve the
native title system. The Government will not rush into making significant change
to the Native Title Act. History has shown that such change requires
proper consideration and
consultation.[4]
I am greatly
encouraged by the Attorney’s comments.
Over the past 16 years, millions of dollars have been spent on the native
title system. There have been minimal obvious returns for Aboriginal and Torres
Strait Islander peoples. Significant studies have generated proposals for
improving the operation of the native title system. Yet, many reports are now
gathering dust on shelves in Canberra.
I consider that reforms are urgently required to improve the system and
fulfil the underlying purposes of the Native Title Act – including the
rectification of ‘the consequences of past
injustices’.[5]
The native title system must be viewed holistically. Its deficiencies can
only be addressed through a comprehensive reform process in which Aboriginal and
Torres Strait Islander peoples are actively involved, every step of the way. I
reiterate my firm belief that any reform to the native title system needs to
respect the Racial Discrimination Act 1975 (Cth) and international human
rights standards. Reforms must not be implemented without full consultation and
the free, prior and informed consent of Aboriginal and Torres Strait Islander
peoples.
We now have a historic opportunity to transform the native title system to
ensure that it truly delivers justice for Aboriginal and Torres Strait Islander
peoples and facilitates our social and economic development. The Attorney must
seize this opportunity and succeed where other governments have failed. To do so
would leave a lasting legacy of reconciliation.
It is therefore an optimal time to have an informed discussion about what
changes should be made to improve native title.
In Chapter 2 of this Report, I considered principles and standards that
should underpin a fresh approach to native title.
In Chapter 3, I raise a
number of my concerns about the native title system as it currently operates.
The purpose of this Chapter is to highlight possible options for reform and to
encourage further dialogue on ways to improve the native title system.
In particular, this Chapter considers several key areas that require
attention:
- recognition of traditional ownership
- shifting the burden of proof
- more flexible approaches to connection evidence
- improving access to land tenure information
- streamlining the participation of non-government respondents
- promoting broader and more flexible native title settlement packages
- initiatives to increase the quality and quantity of anthropologists and
other experts working in the native title system.
These issues have
been specifically identified throughout the reporting period as future
directions for reform.[6]
There are undoubtedly other elements of the native title system in need of
improvement, many of which I have analysed in previous Native Title
Reports. However, the range of issues raised in this Chapter indicates that
governments must do more than simply tinker at the edges of the native title
system to achieve social justice for Aboriginal and Torres Strait Islander
peoples.
3.2 Recognition of traditional ownership
The recognition of native title can be empowering for traditional owners.
The experience of Yamatji Marlpa Aboriginal Corporation is that for claimant
groups
native title is not merely about gaining (generally quite limited) rights
over their traditional country. What is particularly important to many claimants
is the recognition and status that comes with a positive determination –
that is, that the white legal system and the Australian Government recognise the
existence of the group and their status as traditional
owners.[7]
Murray Wilcox, a former Federal Court judge, has also commented on the
significance of formal recognition for native title claimants:
A court decision to recognise native title always unleashes a tide of joy. I
believe this has nothing to do with any additional uses of the land –
generally very marginal – that the determination makes available; rather,
the fact that a government institution has formally recognised the claimant
group’s prior ownership of the subject land and the fact of its
dispossession. That recognition is what Aboriginal peoples are
seeking.[8]
As discussed in Chapter 2, the Australian Constitution does not recognise our
traditional ownership of our lands, territories and resources. Further, the
legal barriers for proving native title are often insurmountable, leaving many
communities without formal recognition of their traditional ownership.
In an attempt to overcome this significant issue, Mr Wilcox has raised the
idea of allowing courts to recognise traditional ownership when the claimants
fall short of proving native title.
He has suggested that the Federal Court should be empowered to make a
declaration about traditional ownership based on descent, and without needing to
find continuous observance of laws and customs, or to make orders about
particular uses of the land.[9]
This proposal is worthy of further consideration. It raises some important
questions. How might it work in practice? What rights would be associated with
recognition of traditional ownership, if not native title rights and interests?
Creating a ‘second tier’ of recognition of traditional owner
status could be useful in some circumstances. As the National Native Title
Council (NNTC) identifies:
Such a power would enable the regional identification of the traditional
country of a claimant group even where native title has been, for example,
extinguished by the grant of an extinguishing
tenure.[10]
However, in creating such a second tier, the Government should be very
careful not to simply give incentives for respondent parties to ‘race to
the bottom’ of the recognition ladder. As the NNTC further comments:
[T]he capacity for the Federal Court to make a determination of
‘traditional owner status’ [must] not operate to the disadvantage of
native title claimants. For example, it should not operate as an incentive to
respondents to reduce their willingness to participate in consent
determinations.[11]
While the idea of alternative modes of recognition is innovative, I consider
that the ultimate issue is: how do we transition from the existing law to a
native title system that works, and thereby allows full recognition of
traditional ownership? After all, the Native Title Act was intended to do
exactly that – give legal recognition to the traditional owners of this
land.
The devastating reality is that native title is inaccessible and unrealistic
for many traditional owners. This includes the Yorta Yorta people in Victoria,
who could not clear the legal hurdles of proving native title. In my view, the
answer is not necessarily to create a second tier of legal recognition of
traditional ownership, but to amend the law and make native title accessible and
achievable.
However, if such amendments are not made and native title determinations
remain elusive to the majority of Aboriginal and Torres Strait Islander peoples,
the Government should consider and consult on how other mechanisms can
acknowledge traditional ownership. Some mechanisms such as consent
determinations and Indigenous Land Use Agreements (ILUAs) already exist, but
their use as tools for recognition could be promoted and made more attractive
and accessible to the parties.
3.3 Shifting the burden of proof
(a) Background
Over the past five years, I have consistently voiced my concerns that the
evidential burden of proving native title is simply too great. Similarly, Les
Malezer has argued that the onus upon Aboriginal and Torres Strait Islander
peoples of proving that they have a customary connection to their lands is one
of the ‘fundamentally discriminatory aspects’ of the Native Title
Act.[12]
This view is shared by the United Nations Committee on the Elimination of
Racial Discrimination, which has expressed concern:
about information according to which proof of continuous observance and
acknowledgement of the laws and customs of indigenous peoples since the British
acquisition of sovereignty over Australia is required to establish elements in
the statutory definition of native title under the Native Title Act. The high
standard of proof required is reported to have the consequence that many
indigenous peoples are unable to obtain recognition of their relationship with
their traditional lands. ...[The Committee] recommends that the State party review the requirement of
such a high standard of proof, bearing in mind the nature of the relationship of
indigenous peoples to their
land.[13]
As one academic put it, ‘the question should not be how we can deal
with indigenous “claims” against the state, but rather how can the
colonisers legitimately settle and establish their own
sovereignty’.[14]
One way to address this problem could be to amend the Native Title Act to
provide certain presumptions in favour of native title claimants. For instance,
there could be a presumption of the ‘continuity of the relevant society
and the acknowledgement of its traditional laws and observance of its customs
from sovereignty to the present
time’.[15] Once these
presumptions are triggered, the burden would shift to the respondents to rebut
the presumptions with proof to the contrary.
Such an approach is not inconsistent with the Native Title Act. The preamble
states that the High Court has held that the common law ‘recognises a form
of native title that reflects the entitlement of the indigenous inhabitants of
Australia, in accordance with their laws and customs, to their traditional
lands’. Presumptions in favour of the native title claimants would simply
recognise and give respect to this fact.
Nor would this approach be novel. As I outlined in my submission to the
Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the
Native Title Amendment Bill 2009, there are a number of laws in Australia in
which a presumption is made or certain elements must be proven, after which the
burden of proof shifts to the
respondent.[16]
In most cases the government party would presumably take on the role of
adducing evidence to rebut the relevant presumptions. In my view, this is
appropriate. Government parties typically hold a lot of information relevant to
the claim. Governments are also better resourced than native title claimants.
Significantly, governments are responsible for dispossession.
As Tony McAvoy comments:
The evidence which traditional owners inevitably have to rely upon for that
period which is beyond the living memory of traditional owners comes from the
government. That material is often in the hands of the government or government
functionaries ... The state has the resources and the capacity to look at the
material itself. If it wants to challenge the continuity of particular
people’s connection then let them do so. Let them access their own
material and do so. Instead, the onus is placed upon the traditional owners and
complaints are made about the length of time it takes for claims to be
settled.[17]
Shifting the burden of proof is intended to encourage positive outcomes in a
higher proportion of native title claims, either by consent or through
litigation. If the burden of disproving a claim rests more heavily on the
respondents, states and territories may be more inclined to settle claims with
strong prospects of success by consent. It could mean, as Justice North and Tim
Goodwin argue, that for ‘most cases moving towards resolution by consent
determination, the timeline would be streamlined beyond recognition and the
costs of such a process would be reduced out of
sight’.[18]
However, this reform alone may not lead to better outcomes for native title
claimants. A respondent would still be able to defeat a native title claim due
to the operation of s 223, as currently interpreted and applied. And unless
the attitudes and behaviours of states and territories change, the system will
likely remain highly adversarial in nature.
In this section, I consider:
- what could trigger the presumptions in favour of native title claimants
- the benefits of a presumption of continuity
- proposals for reforms to terminology associated with the application of
s 223 of the Native Title Act, including ‘traditional’,
‘connection’ and ‘substantial interruption’ - the need for fundamental changes in the attitudes and behaviours of states
and territories to make these reforms work.
(b) Triggering presumptions in favour of native title
claimants
One option for further consideration is to amend the Native Title Act to
shift the burden of proof once native title claimants meet the registration
test. Section 190A of the Native Title Act requires the Native Title
Registrar to assess the merits of a native title claim, requiring the native
title applicants to submit evidence to:
- identify the area subject to native title
- identify the native title claim groups
- identify the native title rights and interests under claim
- provide a factual basis to the claim
- establish a prima facie case that at least some of the native title rights
and interests claimed in the application can be
established.[19]
Using
the registration test to trigger a shift in the burden of proof could allay
fears that such a change would result in opening the ‘floodgates’.
The Native Title Act also includes a number of other procedural requirements
related to the registration test that could act as a safeguard to address
floodgate concerns.[20]
If this proposal is adopted, it is important that the bar for meeting the
registration test is not raised. This would simply shift the current problems of
proof to an earlier stage in the claims process. It would also jeopardise access
to the important procedural rights that are gained through registration and
place the assessment of evidence outside the court system.
Alternatively, the presumption could be engaged (and the burden shift) once
the native title claimants prove certain threshold matters.
Chief Justice French of the High Court of Australia has suggested that the
Native Title Act could be amended to provide for a presumption in favour of
native title applicants, which ‘could be applied to presume continuity of
the relevant society and the acknowledgement of its traditional laws and
observance of its customs from sovereignty to the present
time’.[21] A presumption could
apply:
to an application for a native title
determination brought under section 61 of the Act where the following
circumstances exist:(a) the native title claim group defined in the application applies for a
determination of native title rights and interests where the rights and
interests are found to be possessed under laws acknowledged and customs observed
by the native title claim group(b) members of the native title claim group reasonably believe the laws and
customs so acknowledged to be traditional(c) the members of the native title claim group, by their laws and customs
have a connection with the land or waters the subject of the application(d) the members of the native title claim group reasonably believe that
persons from whom one or more of them was descended, acknowledged and observed
traditional laws and customs at sovereignty by which those persons had a
connection with the land or waters the subject of the
application.[22]
The Chief Justice further suggests that, once the above circumstances exist,
the following could be presumed in the absence of proof to the contrary:
(a) that the laws acknowledged and customs observed by the native title claim
group are traditional laws and customs acknowledged and observed at
sovereignty(b) that the native title claim group has a connection with the land or
waters by those traditional laws and customs(c) if the native title rights and interests asserted are capable of
recognition by the common law then the facts necessary for the recognition of
those rights and interests by the common law are
established.[23]
Justice North and Tim Goodwin have also suggested legislative amendment to
establish a reverse onus of proof in native title applications. As to the
circumstances that would engage such a reverse onus, they comment:
Applicants would need to show that there were Indigenous people at
sovereignty occupying the land in question according to traditional laws and
customs. The onus would then shift to the respondents to demonstrate that the
other requirements of the Yorta Yorta test do not
exist.[24]
The circumstances that would trigger a presumption are worthy of further
consideration. Yet, a common theme from these proposals is that once the
presumptions are triggered, it should fall to the respondents to adduce evidence
to rebut the presumptions and prove the contrary.
(c) A presumption of continuity
At the very least, the Native Title Act should provide for a presumption of
continuity.
To prove native title, claimants are required to demonstrate continuity:
- of a society from sovereignty to the present
- in the observance of law and custom
- in the content of that law and
custom.[25]
However, as
Justice North and Tim Goodwin have observed,
those who have been most dispossessed by white settlement have the least
chance of establishing native title. They find it hardest, and usually
impossible, to establish that they belong to a society which has led a
continuous vital existence since white settlement because the policy of the
settlers had the effect of destroying or dissipating members of the society.
Consequently Indigenous people who were connected to areas the subject of
greater white settlement are further dispossessed of their lands by the
operation of native title
law.[26]
The application of the tests for continuity, derived from Yorta Yorta v
Victoria (Yorta Yorta) [27] has had a devastating effect on
native title claims. For example, the Larrakia people were unable to prove their
native title claim over Darwin because the Federal Court found their connection
to their land and their acknowledgement and observance of their traditional laws
and customs had been interrupted – even though they were, at the time of
the claim, a ‘strong, vibrant and dynamic
society’.[28]
Chief Justice French is of the view that a presumption:
could be applied to presume continuity of the relevant society and the
acknowledgement of its traditional laws and observance of its customs from
sovereignty to the present time. ... And if by those laws and customs the
people have a connection with the land or waters today, in the sense explained
earlier, then a continuity of that connection, since sovereignty, might also be
presumed.[29]
The Native Title Act should specify that, where a claimant meets the
threshold for triggering a presumption, continuity in the acknowledgement and
observance of traditional law and custom and of the relevant society shall be
presumed, subject to proof of substantial interruption. This would clarify that
the onus rests upon the respondent, usually the government party, to prove a
substantial interruption rather than upon the claimants to prove continuity.
This would mean that, if the respondent chose not to challenge the
presumption, the parties could, in practice, disregard a substantial
interruption in continuity of observance of traditional laws and
customs.[30]
However, these reforms alone would not lead to a just and fair native title
system. They need to be accompanied by amendments to s 223 of the Native
Title Act and, most importantly, shifts in the attitudes and behaviours of
states and territories.
(d) Reforms to section 223 of the Native Title
Act
Section 223 of the Native Title Act defines ‘native title’
and the rights and interests which constitute it. These include hunting,
gathering, fishing and other statutory rights and
interests.[31]
Section 223 has been interpreted and applied in successive court
decision in ways that deny the promise of recognition inherent in the preamble
to the Native Title Act. Consequently, reforms to s 223 are required to
ensure that the proposed presumptions operate fairly and justly.
This includes clarifying the definitions of ‘traditional’ and
‘connection’ as used in s 223(1) and the related concept of
‘substantial interruption’.
(i) Clarify
the definition of ‘traditional’
Native title rights and interests must be ‘possessed under the
traditional laws acknowledged, and the traditional customs observed’ by
the claimants.[32]
Courts have interpreted ‘traditional’ to mean that laws and
customs must remain largely
unchanged.[33] If this
interpretation of ‘traditional’ is retained, it may be too easy for
a respondent to rebut the presumption of continuity by establishing that a law
or custom is not practiced as it was at the date of sovereignty.
I recommend that ‘traditional’ should encompass laws, customs and
practices that remain identifiable through time. This would go some way to
allowing for recognition of Indigenous peoples’ rights to culture and
would also clarify the level of adaptation allowable under the
law.[34]
(ii) Clarify the definition of
‘connection’
Section 223 requires that claimants ‘have a connection with the
land or waters’ that is the subject of the claim, and have such a
connection by virtue of their traditional law and customs.
The Native Title Act should explicitly state that claimants are not required
to have a physical connection with the land or waters.
Requiring evidence of physical connection sets an unnecessarily high standard
that may prevent claimants who can demonstrate a continuing spiritual connection
to the land from having their native title rights protected and recognised.
Since the Full Federal Court decision in De
Rose,[35] the courts have
rejected the need for the claimants to demonstrate an ongoing physical
connection with the land. However, setting this out clearly in s 223 would
assist to clarify this issue for courts and parties.
(iii) Clarify what constitutes ‘substantial
interruption’
In the Native Title Report 2008, I proposed amendments to the Native
Title Act to address the court’s inability to consider the reasons for an
interruption to the observance of traditional laws and
customs.[36]
Currently, the definition of native title in the Native Title Act does not
require continuity, and for this reason, the Act similarly does not contemplate
what constitutes a break in continuity. However, the courts have interpreted the
Native Title Act as requiring literal continuous connection, ignoring ‘the
reality of European interference in the lives of Indigenous
peoples’.[37]
In Yorta Yorta, the High Court stated that ‘the acknowledgement
and observance of those laws and customs must have continued substantially
uninterrupted since
sovereignty’.[38]
Yet, as Justice North and Tim Goodwin have stated, ‘[a]lthough the Yorta Yorta test includes certain ameliorating considerations, such as
that the continuity required need not be absolute as long as it is substantial,
the ameliorating factors have not had any significant practical
effect’.[39]
What constitutes a ‘substantial interruption’ is open to
interpretation. As discussed above, the claim of the Larrakia people illustrates
the vulnerability and fragility of native title, as currently interpreted. A
break in continuity of traditional laws and customs for just a few decades was
sufficient for the Court to find that native title did not exist. However,
Justice Mansfield found that the Larrakia people ‘clearly’ existed
as a society in the Darwin area with a structure of rules and practices
directing their affairs.[40]
Although referring to the text of s 223 as the basis for its decision,
the majority in Yorta Yorta made a policy choice, although not expressly,
in favour of a restricted entitlement to a determination of native title. No
reference was made by the Court to the purpose of the Native Title Act to
redress past injustices.
A consequence of this construction of s 223 is that there is little room
to raise past injustice as a counter to the loss of, or change in, the nature of
acknowledgment of laws or the observance of customs.
Further, in cases where the claimant group has revitalised their culture,
laws and customs, a comparatively minimal interruption should not be sufficient
to defeat a claim to native title.
A shift in the burden of proof alone would not be sufficient to address the
issues around continuity of connection that arise from the Yorta Yorta test.
In order to address this injustice, I recommend legislative amendments to
address the Court’s inability to consider the reasons for interruptions in
continuity. Such an amendment could empower Courts to disregard any interruption
or change in the acknowledgement and observance of traditional laws and customs
where it is in the interests of justice to do so.
For example, amendments could provide:
- for a presumption of continuity, rebuttable if the respondent proves that
there was ‘substantial interruption’ to the observance of
traditional law and custom by the
claimants.[41] - that where the respondent establishes that the society which existed at
sovereignty has not since then continuously and vitally acknowledged laws and
observed customs relating to land (as required by the Yorta Yorta test),
any lack of continuity or vitality resulting from the actions of settlers is to
be disregarded.[42] This could be
achieved through providing a definition or a non-exhaustive list of historical
events to guide courts as to what should be disregarded, such as the forced
removal of children and the relocation of communities onto
missions.[43]
These
amendments would complement a shift in the burden of proof.
(e) Shifting the attitudes of states and territories
Providing for presumptions and shifting the burden of proof can lead to
better outcomes for native title claimants. However, as Justice North and Tim
Goodwin observe, such provisions will
not solve the whole problem. ... Much will depend on the position taken by
State respondents. Under the reverse onus amendment provision it would be still
open to the respondents to prove lack of necessary continuity or that the
applicants do not belong to the relevant society. It remains to be seen whether
State respondents or other respondents would attempt such proof. ... Unless
State respondents react to the spirit of the change as well as to the letter,
the benefits of the reduction of cost and delay otherwise available might not
eventuate.[44]
I reiterate my belief, expressed in Chapter 2 of this Report, that there
needs to be a fundamental shift in the attitudes of the states and territories
to make these reforms work. I also believe that the Australian Government needs
to play a leadership role in encouraging states and territories to change their
behaviour, including through using its financial position and the processes of
the Council of Australian Governments.
3.4 More flexible approaches to connection
evidence
(a) Overview of connection evidence requirements
Sections 87 and 87A of the Native Title Act provide that the Federal
Court may make a consent determination of native title when it is within its
power and appropriate to do so.
As described by Justice Greenwood in the Kuuku Ya’u decision:
Section 87 ... provides that if ... the parties reach agreement on the
terms of a proposed consent order in resolution of the proceeding (the agreement
being filed in the Court) and the Court is satisfied that such orders are within
power, the Court may make orders in or consistent with those terms, if it
appears to the Court to be appropriate to do so. As to the question of power,
s 13(1) of the Act provides that an application for a determination of
native title may be made to the Court under Part 3 in relation to an area
for which there is no approved determination of native title. The Act encourages
parties to resolve such applications by negotiation, mediation and ultimately
agreement rather than contested adversarial
proceedings.[45]
In most instances, state and territory governments set requirements that
native title claimants must meet before the state or territory will engage in
mediation or negotiations. In general, state and territory governments want to
be ‘satisfied that the claim meets the evidentiary requirements of the NTA
and case law, in particular s 223 and the requirement for proof of
connection’.[46]
States and territories determine their own connection evidence requirements.
These requirements are generally set out in guidelines and other policy
documents.[47] The connection
requirements differ between state and territories. Figure 3.1 sets out an
example of a state process for assessing connection material. Note that in stage
two of this process, claimants are required to provide a ‘Native Title
Report’ to the state, including evidentiary material such as reports,
affidavits and transcripts.
Figure 3.1: South Australia's assessment process
(b) What are some of the problems with connection
evidence requirements?
The connection evidence requirements imposed by states and territories can be
onerous. For example, in Hunter v State of Western Australia (Hunter),[48] North J considered that the burden upon the claimants to satisfy Western
Australia’s Guidelines for the Provision of Information and Support of
Applications for a Determination of Native Title did ‘not seem to fulfil
the purpose of ss 87 and 87A, namely, to assist in resolving applications
quickly and with minimal
cost’.[49]
He further commented:
The power conferred by the Act on the Court to approve agreements is given in
order to avoid lengthy hearings before the Court. The Act does not intend to
substitute a trial, in effect, conducted by State parties for a trial before the
Court. Thus, something significantly less than the material necessary to justify
a judicial determination is sufficient to satisfy a State party of a credible
basis for an application. ...It is to be hoped that the State will give careful consideration in future
matters under s 87 and s 87A to easing the present unnecessary burden
either placed on or assumed by native title
applicants.[50]
Similarly, the authors of a report on a Native Title Connection Workshop
facilitated by the National Native Title Tribunal (NNTT) and the Australian
Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS) in 2007
commented that ‘in most jurisdictions the current processes have simply
relocated the evidentiary process from the Court to, largely, State or Territory
governments’.[51] This shift
is problematic, especially considering that the state and territory governments
are also the primary respondents. The unfettered ability of states and
territories to impose and unilaterally alter these requirements creates an
inequality of bargaining power.
Meeting the requirements for connection materials imposed by the states and
territories places under-resourced Native Title Representative Bodies (NTRBs)
under a heavy burden. As observed in the Native Title Report 2004,
‘connection reports require a substantial investment in terms of human and
financial resources’.[52]
Compiling connection materials is time consuming and can lead to significant
delays. The NNTT identifies ‘the timely preparation and assessment of
native title connection materials’ as critical for ensuring the steady
progress of native title applications to resolution through mediation. Yet, this
task is ‘the primary source of delay in resolving many claimant
applications’.[53]
Some have suggested that uncertainty surrounding the criteria used by the
Court in applying ss 87 and 87A further complicates this process and contributes
to the early demands for significant connection materials.
The Court may make an order under ss 87 and 87A only when ‘it is
appropriate to do so’. The concept of ‘appropriate’ has been
considered to be
‘elastic’.[54]
In Hunter, North J indicated that ‘[i]n most circumstances the
fact of agreement will be sufficient evidence upon which the Court may
act’.[55] However, as Tony
McAvoy observes, the approach:
varies depending on which of the Justices of the Court are sitting on the
matter ... on one view, it seems that nothing less than evidence meeting all the
essential elements of native title will
suffice.[56]
The Victorian Government has commented that:
so long as what is expected by the Act regarding a consent determination is
unclear, parties will feel compelled to provide, and to demand, more rather than
less, for fear of falling short of the Federal Court’s
expectations.[57]
(c) Possible solutions
(i) Legislative responses
One response to the issue identified by the Victorian Government, and others,
could be to remove the requirement that the Court must be satisfied that it is
‘appropriate’ to make the order sought by the parties (that is, to
approve their agreement). Alternatively, ss 87 and 87A could be amended to give
greater guidance as to what Courts should consider when determining whether it
would be appropriate to grant the order.
For example, the Victorian Government has suggested that an amendment to
s 87 ‘should be aimed at alerting the Federal Court to questions of
the strength and fairness of process in reaching agreement worthy of a consent
determination, and not just the evidentiary facts
themselves’.[58] This could
involve the Court being satisfied that ‘the agreement is genuine and
freely made on an informed basis by all parties, represented by experienced
independent lawyers’.[59]
It has also been suggested that the examination of appropriateness should be
confined to the consideration of whether the parties have had appropriate legal
advice.[60]
This focus on the ‘strength and fairness of process’ could have a
further advantage of providing incentives to governments to ensure that native
title claimants are adequately resourced and represented.
Introducing presumptions in favour of native title claimants may also help
alter the expectations of states and territories as to the connection materials
that native title claimants must marshall. Justice North and Tim Goodwin suggest
that:
If the law required the applicants to establish only that Indigenous people
occupied the land in question at sovereignty, State respondents would doubtless
alter their practices, rewrite the guidelines, and in many cases make agreements
for determinations of native title without delay and consequently with much
reduced cost.[61]
(ii) Policy responses
Ultimately, the solutions to the onerous connection evidence requirements
imposed by the states and territories will not lie in legislative reform alone.
A fundamental change in attitudes on behalf of states and territories is
essential to reducing the adversarial nature of the native title system, which
is reflected by the burdens placed upon native title claimants to produce
connection materials.
Rita Farrell, John Catlin and Toni Bauman observe that ‘[t]he States
and Territories have an obligation and responsibility to act in the public
interest and to be satisfied that they will be entering into agreements on
behalf of their constituents with the people who hold native title over a
particular area’.[62]
However, states and territories need to understand that it is also in the
public interest to arrive at agreements without unnecessary delay and expense.
And, as I discussed in Chapter 2 of this Report, governments also have a
responsibility to protect our rights and interests.
The legislative responses outlined above may go some way to encourage changes
in attitude and behaviour. However, the Australian Government clearly has an
important role to play in leading the process of change through non-legislative
means. The Australian Government has a great deal of financial leverage with
which to influence state behaviour and encourage the making of consent
determinations.
For example, the Australian Government could play a leading role in setting
national standards for connection requirements. These standards should be aimed
at improving the likelihood of agreements being reached and claims being
resolved with minimal delay and expense. The report of the NNTT / AIATSIS
‘Getting Outcomes Sooner
Workshop’[63] outlines some
best practice principles that could inform the development of national standards
(see Text Box 3.1).
| Text Box 3.1: Report of the ‘Getting Outcomes Sooner Workshop’ - July 2007[64] |
|
Best practice principles Basing connection processes on the following principles would significantly
Suggested policy and strategic changes A
|
3.5 Improving access to land tenure information
The progress of native title claims depends greatly on the time it takes
states and territories to release land tenure information and assess it.
Claimants invest significant human and financial resources to prepare claims.
However, the discovery of historic and extinguishing tenures after a claim has
been initiated can significantly undermine this investment in resources.
I consider that native title claimants should be able to access relevant
tenure history information at the earliest possible opportunity. The Australian
Government could facilitate this through statutory amendment and / or by use of
financial and other leverage over the policies and practices of the states and
territories. For example, state and territory governments should be required to
provide comprehensive tenure information to the native title claimants and their
representatives before requiring the native title claimants to submit connection
reports.
The appropriate party to provide tenure information is the government party.
The states and territories are responsible for land administration in their
respective jurisdictions. As they also hold the relevant information, and have
the resources to commit, the state and territory governments are in the best
position to undertake thorough tenure searches and provide tenure information to
claimants at the earliest possible opportunity.
The costs and delays described above can also be attributed to the lack of
readily accessible, comprehensive land tenure information. Improving access to
land tenure information could significantly reduce the time and costs associated
with claims processes.
In 2004, a National Summit on Improving the Administration of Land and
Property Rights and Restrictions (the Summit) was held to consider ways to
improve the supply of information concerning land and property rights,
obligations and restrictions (RORs) in Australia.
One of the issues considered at the Summit was the increasing difficulty
experienced in every jurisdiction in obtaining comprehensive information on RORs
affecting the use and / or ownership of land and property.
For example, Barry Cribb of the Department of Land Information in Western
Australia informed the Summit that there are over 180 different types of
property interests residing in some 23 custodian agencies in Western Australia
alone. An interest may be a ROR that affects the use and / or enjoyment of land.
Types of interests include easements and environmental, cultural, planning,
building and health interests. Mr Cribb raised a number of concerns including
that:
- the majority of property interests are not held in the Torrens Register
- there is no definitive source of interests in land
- there is no mechanism for the recognition or discovery of new
interests.[65]
I
consider that there is a further deficiency with the current level of access to
tenure information. Aboriginal and Torres Strait Islander peoples have varying
degrees of access and control of at least 20% of the Australian
continent.[66] However, there is
currently no baseline information that defines on a national basis the lands,
waters, and tenures that make up the Indigenous estate.
At the Summit, Margaret C Hole AM considered that ‘it is desirable to
provide a registration system that discloses all things relating to title
including ownership, mortgages, leases, easements, covenants, planning
requirements, zoning, geographical restrictions, weather patterns, demographics
etc’.[67]
Since 2004, considerable work has been undertaken to address the concerns
raised at the Summit. This includes a project initiated by the National Land and
Water Resource Audit with the intention of creating a land tenure data set with
Australia-wide coverage.[68]
Further, the NNTT, in collaboration with other Australian Government
agencies, is pursuing the development of a National Information Management
framework for land tenure through ANZLIC – the Spatial Information
Council, which is the intergovernmental body for spatial
information.[69]
I support the establishment of a comprehensive national information
management database that co-ordinates national and jurisdictional land tenure
information. To improve accessibility, this database could be made available
online.
States and territories should be encouraged to provide a full inventory that
maps the various tenures across their jurisdictions to contribute to such a
database. This database should include native title rights and interests and
other forms of Indigenous tenure, and lands where tenure resolution is
required.[70]
An online national land tenure database would significantly increase the
ability of claimants to access information and reduce pressure on their
resources.
3.6 Streamlining the participation of non-government
respondents
There are frequently a large number of parties to native title proceedings.
This can lead to unnecessary delays, costs and the frustration of settlement
efforts.
The Australian Government has acknowledged that the numbers of respondent
parties in native title claims is unacceptable. In Australia’s comments to
the United Nations Human Rights Committee, the Government said:
The involvement of a large number of non-government respondent parties in
native title claims contributes to the complexity, time and cost of claims.
While the interests of non-government respondents need to be considered to
ensure sustainable outcomes, respondents should be concerned to clarify the
interaction between Indigenous and non-Indigenous property rights, not to expend
public resources on determining whether native title
exists.[71]
The participation of respondents in native title proceedings must be managed
effectively. Addressing the problems associated with excessive party numbers and
improving the processes involved to become a party is critical to improving the
efficiency of the native title system.
I believe that the current balance between the representation of native title
and non-native title interests is poorly struck. Consideration needs to be given
to a number of matters concerning the participation of respondents in native
title claims, including:
- the role of state and territory governments in representing respondent
interests - party status
- processes for removing parties
- representative parties
- funding for respondent parties.
(a) The role of state and territory
governments
The role of governments in a native title claim is primarily to represent the
interests of the community and to test the validity of the claim.
Consequently, South Australian Native Title Services comments that:
Amendments should provide that the Federal Court should rely on the first
respondent, being the State Government, to represent all respondent interests
whose interests are gained from a grant of rights from the State...The State
under legislation manages for example the Fishery or the Mineral resources for
the public generally and as such, the State as the grantor of such interests is
best placed to represent all persons holding such interests in the native title
context.[72]
Consistent with this, Daniel O’Dea of the NNTT stated:
Bearing in mind that the State goes to great lengths to ensure that all
extant interests are listed in schedules to all determinations and that those
interests will prevail over the native title interests to the extent of any
inconsistency, it is arguable there is no real need for current holders [of
those interests] to actively
participate.[73]
Given the role that state and territory governments play, I agree that the
involvement of so many respondents in native title claim proceedings should be
reappraised. Options for reform are discussed below.
(b) Party status
To streamline the participation of non-government parties, the Native Title
Act should include stricter criteria that respondents must meet in order to
become and remain parties to native title proceedings.
| Text Box 3.2: Section 84 of the Native Title Act 1993 (Cth) |
|
Section 84 of the Native Title Act identifies who can become a party Section 84 of the Native Title Act provides an extremely broad test Amendments made to s 84 in 2007 included some positive |
The following options should be considered.
The threshold for joinder as a party could be amended to reflect more
traditional tests for standing in civil proceedings, such as the ‘special
interest’ test under general
law[77] or the ‘person
aggrieved’ test under the Administrative Decisions (Judicial Review)
Act 1977 (Cth).[78]
Another
alternative would be to require the party seeking to be joined to satisfy
criterion set out in Order 6 Rule 8 (Addition of Parties) of the Federal Court
Rules, which includes that joinder of the person ‘is necessary to ensure
that all matters in dispute in the proceeding may be effectually and completely
determined and adjudicated upon’.
A further option is to revisit the criteria in ss 84(3) and 84(5). The
following persons are among those who are entitled to be parties to a native
title claim:[79]
- a person whose interest, in relation to land or waters, may be affected by a
determination in the
proceedings[80] - any person who, when notice of a native title claim is given, holds a
proprietary interest that is registered on a public register in relation to any
of the area covered by the
application.[81]
Such
persons could be required to show that their interests are likely to be substantially affected by a determination in the proceedings. The Native
Title Act could provide that a person claiming that their interests are
substantially affected must make an application to the Court before they can be
joined as a party.[82] The
application should set out how the person’s interests are likely to be
substantially affected if the Court were to make the determination sought. The
claimant and the primary respondent should then have an opportunity to make
submissions to the Court.
Alternatively, the Government could explore options to enable a reduced form
of participation in native title proceedings for certain respondents, such as
those who may seek only to be added as a party to ensure that their rights and
interests are preserved under any final determination.
It may not be necessary to afford full procedural and other rights to such
parties. A tiered system of participation may allow for certain procedural
matters to be dealt with more expeditiously by only requiring the consent of the
‘key players’ to the proceeding, usually the native title claimant
and the government party.
If these amendments are made, the Court would retain the discretion as to
whether to join the person as a party. However, raising the threshold for
addition as a party, as well as requiring the proposed respondent to carry the
burden of proof in establishing why they should be added, would contribute to
the more effective management of the number of parties to claims.
In particular, claimants and primary respondents would have a firmer basis on
which to challenge the addition of parties whose interests appear peripheral or
adequately represented by other parties, together with a formal opportunity to
make that challenge before the Court.
(c) Removal
of parties throughout proceedings
Many people who become parties when a native title claim is first made may
lose their relevant interest as the claim progresses. This might be due to
changed circumstances over the intervening years or due to the fact that
extinguishment is often not considered until late in the proceeding.
The Native Title Act already provides for the removal of parties from
proceedings. Section 84 of the Act details a number of ways a party may be
removed from the proceeding, such as through leave of the Court after the
proceeding has begun.[83] Section 84(9) also states that the Court is to consider making an order
that a person cease to be a party if the Court is satisfied that the person no
longer has interests that may be affected by a determination in the proceeding.
However, the Court’s powers to remove parties are not used regularly or
consistently throughout native title proceedings. The most recent amendments to
the Native Title Act give the Federal Court ‘a central role’ over
the management of native title
proceedings.[84] Complemented by
focused amendments to provisions related to respondent parties, this power could
enable proceedings and agreements to progress more efficiently.
The negotiation of the Thalanyji consent determination provides a practical
example of where the Court’s power to remove parties has been utilised:
the NNTT, in co-operation with the registrars of the Federal Court, sought
the making of orders by His Honour, essentially in the character of a springing
order, which required all parties, except specified parties who were actively
participating, to notify the Court of their intention to remain a party within a
specified time. Failure to do this would lead to those parties losing that
status. Due to the number of parties, the process involved a great deal of
correspondence and telephone communication and was extremely time-consuming.
However, in the end, in the Thalanyji matter, a significant number of parties
(approximately one third) chose to withdraw voluntarily and, subsequent to the
springing orders being made, all the remaining parties consented to the
determination in the form proposed to the
Court.[85]
This example demonstrates the benefits of requiring parties to advise the
court on a periodic basis how their interests continue to be affected by the
proceedings in order to remain a party. I consider that the Native Title Act
should be amended to require this. Such a process may assist with managing the
current numbers of parties to native title proceedings.
Specifically, ensuring a regular ‘clean up’ of the party list
could be achieved through amendments to s 84(9) of the Native Title Act.
The Court should be required to regularly review the party list for all active
native title proceedings and, where appropriate, require a party to show cause
for its continued involvement.
The NNTT may also have a role to assist the
Court, drawing on its expertise and access to information necessary to undertake
such a review. The NNTT could also provide advice to the Court about parties
that no longer hold the necessary interest to maintain party
status.[86]
If the above proposals to raise the threshold for party status were to be
adopted, this could encourage the more effective utilisation of the
Court’s power to remove parties. Above all, it would enable claimants and
respondents to more effectively challenge the ongoing involvement of parties
whose interests have faded or disappeared during the life of the claim.
(d) Exploring
the potential for using representative parties
The use of representative parties may also assist in the management of the
number of respondents to native title claims.
Representative parties can already be used in Federal Court proceedings in a
number of circumstances. In particular, Order 6, Rule 13 of the Federal Court
Rules deals with representative respondents. It enables the Court, at any stage
in proceedings, to appoint any one or more of the respondents to represent
others with the same interests.
Further consideration could be given to how
this rule or a similar rule could be used to achieve a more rational management
of parties in native title proceedings. The Australian Government could also
explore legislative amendments to facilitate the appropriate use of
representative respondents to streamline native title litigation.
(e) Improving transparency in respondent funding
processes
Currently, respondents may be funded by the Commonwealth under the
‘respondent funding scheme’ to participate in native title
proceedings.[87] The
Attorney-General may make guidelines that are to be applied in authorising the
provision of assistance.[88]
I consider that greater transparency in the implementation and operation of
this funding scheme is required.
In 2006, the Australian National Audit Office observed that the
Attorney-General’s Department ‘is unable to evaluate either the
effectiveness of the Respondents Scheme at either the individual grant level or
the contribution the programme is making to the larger Native Title System
outcome’.[89]
In particular, little information is available regarding which parties are
being funded to participate in the proceedings, how the Attorney-General’s
funding guidelines (the
Guidelines)[90] are being applied
and whether the ongoing funding of particular parties is appropriate.
The Native Title Act and the Guidelines need to ensure greater transparency
in the funding process.
For example, the Guidelines allow for the withdrawal of funding in certain
circumstances, including where the respondent fails to act
reasonably.[91] Yet, the reference
to a failure to act reasonably is not defined or clarified. It might be
appropriate for s 213A or the Guidelines to be amended to stipulate that
recipients of funding under the scheme must agree to abide by standards applied
to the Commonwealth and its agencies under the Commonwealth model litigant
guidelines appended to the Legal Service
Directions.[92] Section 213A or the
Guidelines could also stipulate that failure to comply with these standards may
result in withdrawal of funding.
Further, the Guidelines or s 213A could be amended to articulate a
mechanism by which other parties or the appointed mediator can apply to the
Attorney-General to have a party’s funding withdrawn where a respondent
inappropriately undermines the conduct or resolution of a claim. This could
occur, for example, where the appointed mediator is of the view that the party
has refused to make a bona fide and reasonable endeavour to resolve the
dispute.[93]
3.7 Promoting broader and more flexible native title
settlement packages
(a) Background
The challenge is ... to effectively engage ... and to transform the potential
wealth that participation in resource extraction may bring, into a sustainable
social and economic future for those communities most impacted by the resources
boom.[94]
In this section, I
consider the changes to law and process that are required to promote broader and
more flexible native title settlement packages to support our social and
economic development.
The 1998 amendments to the Native Title Act introduced a legal framework and
process for the negotiation of ILUAs between native title holders and others
about the use and management of lands, waters and resources. This
agreement-making framework has gone some way to encourage negotiated outcomes
and avoid costly litigation. As at 30 June 2009, 389 ILUAs had been registered
with the NNTT.[95] See Map 3.1 for
further information on ILUAs across Australia.
Map 3.1: Registered Indigenous Land Use Agreements as at 30 June
2009
Since 1996, Rio Tinto alone has signed nine major development agreements and
negotiated more than 100 exploration agreements across Australia. This has
resulted in a commitment of approximately $1.4 billion in social and economic
investment over the next 20 years to Indigenous
communities.[96]
However, the Government is concerned that the benefits accruing to Indigenous
interests under native title agreements are not adequately addressing the
economic and social disadvantage faced by Indigenous
communities.[97] It has been
estimated that only 12 of the hundreds of agreements that have been negotiated
between traditional owners and industry provide substantial benefits to
Aboriginal and Torres Strait Islander people and exhibit principles embodying
best practice in
agreement-making.[98]
Further, agreements often deliver little in terms of cultural heritage
protection or environmental management beyond what is already available under
general legislation, and often require traditional owners to surrender their
native title rights and
interests.[99]
As discussed in
Chapters 1 and 2 of this Report, the Government is seeking to build partnerships
with Indigenous communities through ‘equitable
agreements’.[100]
Recent amendments to the Native Title Act enable the Federal Court to make
determinations that cover matters beyond native
title.[101] The Native Title
Amendment Act 2009 (Cth) clarifies that the Court can make orders that
reflect agreements made by the parties.
There are a number of matters that could be included in such agreements,
including economic development opportunities, training, employment, heritage,
sustainability and existing industry
principles.[102]
The power for the Court to make orders about matters other than native title
may also provide a mechanism for the ‘alternative recognition of
traditional ownership’ (discussed in section 3.2, above), even in
cases where native title was not determined to exist.
These reforms can ensure that agreements are formally recognised and more
readily enforceable. This approach could also encourage parties to negotiate
native title claims more laterally, creatively and flexibly, rather than to
simply negotiate on an ‘all or nothing’ basis in relation to the
determination of native title.
For example, the South Australian Native Title Services commented as
follows:
Depending on the terms of the agreement, native title claim groups who are
either unable to establish native title by agreement, or are willing to
surrender native title to avoid the risk of a determination of no native title,
could secure other orders as to the terms of an agreement reached i.e.
recognition of traditional rights, transfers of land
etc.[103]
The ability for the
Court to make orders concerning non-native title outcomes may provide a
mechanism whereby agreement-makers are able to coordinate the multiple and
complex agreements that they are party to under various legal regimes, including
lands rights and heritage legislation. This would allow these agreements to
provide comprehensive strategic directions for Indigenous communities.
It is positive that the Government is encouraging parties (including states
and territories) involved in native title claims to work together to reach
agreements with broad and beneficial outcomes. However, the ‘broader
settlement’ framework needs to be accompanied by amendments to address
inadequacies and inequality in the Native Title Act.
There are many ways that agreement-making processes could be improved,
including:
- strengthening procedural rights and addressing concerns with the future acts
regime - amending the definition of native title in s 223 to include rights and
interests of a commercial nature - using long-term adjournments to support agreement-making
- developing the capacity of communities to engage in effective
decision-making.
(b) Strengthening procedural rights and the future
acts regime
The future acts regime is an essential element of the Native Title Act. Its
strengths (or weaknesses) directly impact on the way parties behave in
negotiating agreements. The operation of the regime is integral to good
agreements which benefit the parties – a priority of this Government. I
recommend that the Government consider how the future acts regime can be amended
to strike a better balance between native title and non-native title interests
and create stronger incentives for the beneficial agreements the Government
wants to see.
The right to negotiate regime is also a crucial element of the Native Title
Act. It should not be construed
narrowly.[104]
| Text Box 3.3: Procedural rights |
|
The right to Part 2, Division 3 of the Native Title Act makes provision for registered Generally, a government has two options to validly do an act that attracts The future acts The Native Title Act seeks to protect native title rights by prescribing A future act is an act done after 1 January 1994 (the date of the |
However, the future acts regime in its present form has been the subject of
international criticism.[107] And,
as Sarah Burnside notes, recent decisions have illustrated the limitations of
the right to negotiate, stemming from the terms of the Native Title Act and the
way they have been interpreted by the NNTT and the Federal
Court.[108]
The following
reforms could address some of these limitations.
(i) Improving procedural rights over offshore
areas
Procedural rights over the sea and offshore areas are limited, with the right
to negotiate not being available for acts occurring below the high water
mark.[109] However, the Court has
considered that there is native title in offshore areas and this Government has
recognised that native title can exist up to 12 nautical miles out to
sea.[110] This recognition seems
inconsistent with the limitations on procedural rights over the sea. This
situation could be improved by the repeal of s 26(3) of the Native Title
Act.
(ii) Addressing compulsory acquisition and
extinguishment
Section 24MD(2)(c) of the Native Title Act currently states that
compulsory acquisition extinguishes native title. As originally enacted,
s 23(3) of the Native Title Act stated that acquisition itself does not
extinguish native title, only the act done in giving effect to the purpose of
the acquisition that led to extinguishment. There appears to be no policy
justification for the current position. I consider that it would be appropriate
for s 24MD(2)(c) be amended to revert to the wording of the original
s 23(3).
(iii) Strengthening the requirement to negotiate in
good faith
Parties are prevented from resorting to an arbitral body (usually the NNTT)
for a period of six months from the issue of a notice that the government
intends to grant a mining
tenement.[111] During this
negotiation period, s 31 of the Native Title Act obliges the parties
involved to negotiate in good faith.
In Chapter 1, I reviewed the Full Federal Court’s decision in FMG
Pilbara Pty Ltd v Cox (FMG
Pilbara).[112] It is clear
from this decision that it is difficult for claimants to establish that a mining
company has not acted in good faith.
Several problems are evident in the wake of the FMG Pilbara decision,
which deserve the close attention of the Australian Government.
Reconsidering time periods for negotiations
The Native Title Act imposes a severe time constraint on mining negotiations.
Six months is a very short period for the establishment of negotiations
protocols, assembly of relevant information, presentation of proposals,
discussions amongst native title parties and their advisers, the making of
offers and counter-offers and so on. This is particularly so in areas such as
the Pilbara where the abundance of mining activity creates huge pressures on
under-resourced NTRBs. For situations where no claim is on foot, a credible
application has to be prepared, lodged and registered within the first four
months after the notice period.
The same statutory time limits apply regardless of the breadth of
negotiations. In FMG Pilbara, the parties had sought to conclude
an agreement on a ‘whole of claim’ basis. This not only sought to
make efficient use of time and resources, but offered the mining company the
prospect of much greater long-term resource security. Such negotiations are
necessarily far more complex than the grant of a single mining tenement. In this
case, negotiations with one of the native title parties had not proceeded far
past the conclusion of a preliminary protocol agreement on how the planned
comprehensive negotiations were to be conducted. I find it difficult to agree
with the Full Federal Court’s assessment that six months ‘ensures
that there is reasonable time to enable those negotiations to be
conducted’.[113]
Under such time pressures, miners can drive a very hard bargain on questions
such as compensation, knowing that an arbitral body cannot make a mining grant
conditional on a royalty or similar
payment.[114]
The same six month time limit is also imposed regardless of whether the
parties have negotiated before and have, for example, a process agreement in
place to regulate their talks.
The brevity and uniformity of time limits under the right to negotiate need
to be reviewed. Alternatively, s 31 could be amended to require parties to
have reached a certain stage before they may apply for an arbitral body
determination.
Shifting the onus of proof
In relation to s 31, the burden of proof for establishing the absence of
good faith negotiations is on the native title party. Shifting the onus onto the
proponents of development, to positively show their good faith, is likely to
alter their behaviour during negotiations and alleviate some of the current
unfairness embedded in the right to negotiate process. It may improve the
quality of the offers made by miners and discourage conduct such as bringing
negotiations to an end mid-stream and seeking arbitration without notice to the
native title parties.
Revisiting the onus of proof offers another means for improving the fairness
of the right to negotiate procedure and is likely to encourage
agreement-making.
Allowing arbitral tribunals to impose royalty
conditions
Agreements struck during the six month good faith negotiation period
regarding a mining act or a compulsory acquisition can include provisions for
royalties or profit sharing.[115]
Pursuant to s 38, if an agreement is not reached and the matter is
referred to the NNTT for arbitration, the NNTT must make a determination either
that the act:
- must not be done
- may be done
- may be done subject to conditions to be complied with by any of the
parties.[116]
However,
under s 38(2), the NNTT cannot a make a determination that an act may be
done subject to conditions of profit-sharing or the payment of
royalties.[117]
When the drafters of the Native Title Act in 1993 denied the NNTT the
capacity to include a royalty-style condition in an arbitral determination,
their decision was premised on a certain prediction about the balance of power
under the right to negotiate. As events have transpired, the drafters clearly
over-estimated the impact on miners of a six-month hiatus in the approvals phase
of a mining project. The premise of the drafters’ decision has been
falsified and that has seriously diminished the quality of outcome typically
obtainable by native title parties from the right to negotiate.
As Tony Corbett and Ciaran O’Faircheallaigh observe, this creates a
‘fundamental
inequality’[118] and
‘places native title holders and claimants under considerable pressure to
conclude an agreement within the negotiation
period’.[119]
The Victorian Government has recommended amendments to the Native Title Act
to allow ‘the arbitral body to make determinations about the amount of
profits, income and productions that were the subject of
negotiations’.[120] I also
believe that s 38(2) should be reconsidered.
(c) Recognition of commercial rights
The Government has stated that it considers that Indigenous communities
should be using their native title rights to leverage economic
development.[121] The link between
native title and economic development has been further acknowledged by the
Government through its decision to include native title in its Indigenous
Economic Development
Strategy.[122]
Agreement-making can be an important vehicle for social and economic
development. However, the Native Title Act does not clearly provide for the
recognition of commercial rights.
This may prevent a community from being able to use native title rights to
support their economic development aspirations.
Courts have often appeared to take the view that customary Indigenous laws
and customs for the purpose of native title do not include commercial activity.
This perception has created distinction between customary rights and commercial
rights.[123]
There is growing evidence that this distinction is neither necessary nor
accurate. For example, in the Native Title Report 2007 I considered the
experience of the Gunditjmara people in Victoria who were able to prove that
their ancestors had established an ancient aquaculture venture. The Federal
Court recognised their native title rights and the Gunditjmara peoples are now
using these rights to re-establish commercial eel
farming.[124]
Further, the high evidential bar for establishing the relevant bundle of
native title rights excludes or significantly limits the prospect of commercial
rights being recognised. For example, in Yarmirr v Northern Territory at first instance, in response to evidence of trade with neighbouring tribes
in clay, bailer shells, cabbage palm baskets, spears and turtle shells, Olney J
held:
The so-called ‘right to trade’ was not a right or interest in
relation to the waters or land. Nor were any of the traded goods
‘subsistence resources’ derived from either the land or the
sea.[125]
His Honour also observed that evidence of trade with Macassan fishermen
related only to the gathering of trepang, but did not assist in establishing
rights or interests in relation to other resources of the
sea.[126]
This is a very narrow approach to the characterisation of rights. In addition
to an uninterrupted practice of commercial fishing, his Honour appeared to
require further proof of a specific traditional right to commercial fishing
before he would accept it as a ‘right or interest in relation to
waters’. Furthermore, even if a community could establish such a
continuous right, his Honour’s reasoning then calls for a ‘drilling
down’ to the particular species being traded (such as trepang), rather
than allowing a more generic right to trade in the marine resources of the claim
area.
I consider that the definition of native title in s 223 should be
amended to include rights and interests of a commercial nature. This would help
to clarify that native title rights and interests should not be regarded as
inherently non-commercial. Such an amendment might also provide guidance as to
what evidential requirements must be met in establishing a commercial native
title right and the scope of that right.
I also consider it appropriate for the Government to pursue amendments that
discourage courts from over-specifying the rights and that allow for a
reasonable level of generality. For example, a court could recognise a right to
trade in resources of the area rather than confining the right to trading in
specific species only under certain conditions.
In the Native Title Report 2007, I also raised the problem that even
if commercial native title rights and interests are proven and recognised by the
court, the commercialisation of those native title rights would remain subject
to relevant state and territory laws and
regulations.[127] The important
protections for native title holders in s 211 of the Act would be
unavailable due to its focus on non-commercial rights.
Section 211 of the Native Title Act provides native title holders with
immunity from government permit or licensing regimes, when they carry on
activities such as fishing and hunting in the exercise of their native title
rights.
If a government regulates an activity under the section, then that regulation
does not apply to restrict native title rights and interests to the extent that
the activities are undertaken for personal, domestic or non-commercial
needs. As a result, even if Indigenous people can overcome all of the s 223
requirements, any commercial use of their native title rights remain subject
(and vulnerable) to government regulation. In short, having travelled the long
road to establish a commercial native title right, the claimant would
nevertheless still need to join the queue for the applicable permit or licence
to engage in commercial activities.
There are valid reasons why regulation of a commercial activity in respect of
native title rights is necessary, particularly in respect of protecting public
safety, competing rights and interests and the environment. However, I propose
that the Government explore options that would limit the impact of government
regulation in relation to holders of native title rights in appropriate cases.
For example the Government could explore options for:
- state and territory governments to afford priority treatment for native
title holders in obtaining applicable permits and licences to commercialise the
relevant right - developing limited markets for particular commercial activities, such as
trade within and between particular native title groups in a particular
industry. Such limited markets could be freed from more complex layers of
regulation that might otherwise apply and could be adapted to be more culturally
appropriate to the particular groups and activities.
(d) Disregarding extinguishment
As discussed in the Native Title Report 2002, the breadth and
permanency of the extinguishment of native title through the Native Title Act is
contrary to Australia’s international human rights
obligations.[128] It is also an
unnecessary approach, without a satisfactory policy justification.
I consider that the Government should explore alternatives to current
approaches to extinguishment.
For example, Chief Justice French suggests that the Native Title Act could be
amended to allow extinguishment to be disregarded where an agreement is entered
into between the state and the applicant. The Chief Justice further suggests
that this could be limited to situations where the land in question is Crown
land or a reserve:
If, for example, the vesting of a reserve was taken to have extinguished
native title an agreement of the kind proposed could require that extinguishing
effect to be disregarded while either applying the non-extinguishment principle
under the [Native Title Act] or providing in the agreement itself for the
relationship between native title rights and interests and the exercise of
powers in relation to the
reserve.[129]
According to the Chief Justice, ss 47-47B provide a model for such a
provision. These provisions provide for prior extinguishment concerning pastoral
leases held by native title claimants, reserves and vacant Crown land to be
disregarded in certain circumstances.
The Native Title Act could be amended to provide a greater number of specific
circumstances in which extinguishment may be disregarded.
(e) Providing for long-term adjournments
In the course of collecting information for the Native Title Report
2008, I received suggestions from a number of stakeholders who believed that
the Native Title Act should allow the parties (where the claimant and the
primary respondent consent) to request a long-term adjournment. This would give
the parties the room and time to negotiate ancillary outcomes, without being
under pressure from the Court to resolve the determination of native title. For
example, Victorian Attorney-General Robert Hulls MP has commented:
The problem sometimes arises where these broader outcomes are not being
realised because of pressure from the Court to resolve the native title question
more quickly. This can lead to missed opportunities for Traditional Owners, or
ancillary agreements that are difficult to implement because the policy
development behind them was rushed. Preparing for regular Court appearances can
divert resources from making progress on negotiating broader
agreements.[130]
Under s 86F of the Native Title Act, the Court can order an adjournment
to help negotiations. It may do this on its own motion or on application by a
party. The Court can then end the adjournment on its own motion, on application
by a party, or if the NNTT reports that the negotiations are unlikely to
succeed.[131] However, Graeme
Neate, President of the NNTT, has stated in respect of s 86F that the
parties ‘should not assume that alternative or even related
agreement-making will be accepted by the Court as legitimate reason for delaying
resolution of the
claim’.[132]
Section 86F could be amended to clarify that an adjournment should
ordinarily be granted where an application is made jointly by the claimant and
the primary respondent unless the interests of justice otherwise require, having
regard to such factors as:
- the prospect of a negotiated outcome being reached
- the resources of the parties
- the interests of the other parties to the proceeding.
(f) Building the capacity of Indigenous communities
to effectively engage in agreement-making
(i) Prerequisites for effective engagement
We as Indigenous stakeholders must be central participants in setting the
development goals and agendas of our communities. It is imperative that those
most affected by legislation or policy are actively included in the process of
negotiating and deciding upon the economic and social details that will impact
our communities.
Being able to fully understand agreement processes and having the time, the
resources and the platform to participate meaningfully in decision-making are
prerequisites for being able to give our free, prior and informed consent. This
is the foundation of real self determination.
In the Native Title Report 2006, I presented the results of a national
survey on land, sea and economic
development.[133] The survey
results demonstrated that the majority of traditional owners did not have a
good understanding of agreements.
The survey results also demonstrate what communities feel they need in order
to effectively engage in agreement-making processes and leverage opportunities
from agreements.
| Text Box 3.4: Survey on land, sea and economic development – 2006[134] |
|
Understanding agreements Only 25% of traditional owner respondents claimed an understanding of
Traditional owners and their representative entities were asked to identify The survey responses showed that the complex and technical terminology of
A lack of Indigenous perspective in the processes and a lack of information Traditional owners and their representatives were asked to identify the
The survey Leveraging Survey respondents were asked to nominate the three most important
An economic base is required for any enterprise. Some survey respondents identified land ownership as a precondition for |
I consider that the lack of understanding identified in the survey is a major
impediment to the development of sustainable and beneficial agreements.
Certainly, communities require improved access to resources to support them in
their negotiations. Yet, I believe that the process of agreement-making could
become easier to understand and to participate in if:
- communities were able to access other agreements, where appropriate,
to learn from best practice models and the experience of other negotiations - agreement-making was conducted in a spirit of cross-cultural
communication.
I consider these options below.
(ii) Increasing access to agreements, including
examples of best practice or ‘model’ agreements
One way to equip communities with information to assist them to negotiate and
understand agreements would be to make examples of agreements widely accessible.
Native title agreements are confidential, in whole or in part. Indigenous
peoples are entitled to have confidential information appropriately protected.
However, the Native Title Payments Working Group has argued that
‘unnecessarily broad confidentiality provisions in agreements’
results in a ‘lack of available data about the terms of many native title
agreements’, which works against the interests of native title holders as
a whole. Drafters of agreements can be more targeted and selective in
identifying the aspects of an agreement that warrant confidentiality. Meanwhile
greater transparency on issues such as structure and technical content can
assist other native title groups entering into future
negotiations.[139]
Victoria is attempting to strike a better balance between accessibility and
confidentiality. For agreements entered into under the Victorian Alternative
Settlement Framework (discussed in Chapter 1 of this Report), the state
government will not seek for any part to be confidential. However, it will agree
to reasonable requests from traditional owners to protect sensitive
information.[140]
Further consideration should be given to expanding the information about
agreements that is publicly available, while also respecting confidentiality,
privacy obligations and the commercial in confidence content of agreements.
Existing mechanisms for sharing agreements, such as the Agreement, Treaties
and Negotiated Settlements Project, hosted by Melbourne University, and the
NNTT’s Register of Indigenous Land Use Agreements (the Tribunal’s
Register) could be utilised more effectively for this purpose.
For example, s 199B of the Native Title Act specifies the details of
agreements that are required to be entered on the Tribunal’s Register. The
Victorian Department of Justice suggests that the Tribunal’s Register
could be better utilised and provide access to greater levels of information if
s 199B was amended to broaden the list of details that must be included on
the Tribunal’s
Register.[141]
I also consider it important that further research be conducted into
‘best practice’ or ‘model’ agreements. We have much to
learn from agreements such as the Argyle Participation Agreement, which I
profiled in my Native Title Report 2006 and discuss further in Text Box
3.5.[142]
| Text Box 3.5: The Argyle Participation Agreement |
|
The Argyle Participation Agreement was made up of two parts. The first part The second part was the Argyle Management Plan Agreement, which contained
The |
A further option is to draw upon these best practice examples to create
template agreements or clauses that native title holders and their
representatives can tailor to their circumstances. This could save traditional
owners time and resources. It could also assist them to learn from the
experiences of others. Such templates could provide clear guidance to other
parties (including governments) as to best practice.
However, it is important that these templates be as flexible as possible, and
that they be used as a starting point for discussions rather than treated as
definitive or restrictive frameworks.
(iii) Encouraging cross-cultural communication and
understanding
It is also important that agreement-making processes are tailored to enable
the full and effective participation of traditional owners. For example, two-way
cultural communication processes can provide opportunities for non-Indigenous
parties to practically understand the cultural and spiritual importance of the
lands they are seeking to access. It can also assist the native title holders to
understand what will happen on their lands as a result of granting access. This
approach has proven beneficial in previous negotiations.
The negotiating process that led to the Argyle Participation Agreement
illustrates a powerful example of how this can be done.
| Text Box 3.6: The Argyle Participation Agreement: Negotiation process[143] |
|
The preparations for negotiation included a process for recognition and In the early meetings, the traditional owners made the point: ‘we are The parties to negotiations recognised that there were implicit power The traditional owners also recognised that representatives of Argyle |
Ted Hall, Chairperson of the Gelganyem Trust
described what he saw as the legacy of the Argyle Participation Agreement for
the traditional owners:
It’s been empowering, it has empowered us to made decisions on our own
terms. We determine what happens in our area. We set the terms and goals and we
are achieving them also. This process has bought unity between the elders and
the young. The young bring the education and the elders bring the
knowledge.[144]
The Argyle experience demonstrates the importance of a culturally appropriate
negotiating process. I consider that further research should be conducted into
best practice negotiating experiences. This research could involve the
development of case studies and clear principles that other negotiating parties
can access and learn from.
(g) Promoting a regional approach to
agreement-making
The preamble to the Native Title Act provides that:
Governments should, where appropriate, facilitate negotiation on a regional
basis between the parties concerned in relation to:
- claims to land, or aspirations in relation to land,
by Aboriginal peoples and Torres Strait
Islanders - proposals for the use of such land for
economic purposes
Regional agreements are not new in Indigenous affairs. The previous
Australian Government contemplated the use of broader Regional Partnership
Agreements (RPAs) to complement its policy of pursuing more community-specific
Shared Responsibility Agreements (SRAs), although only three RPAs were concluded
(in 2005 and 2006).[145]
The benefits of regional agreements include that they:
- are a means of eliminating overlaps or gaps and promoting collaborative
effort to meet identified regional needs and priorities - seek to build communities’ capacity to control their own affairs,
negotiate with government, and have a real say in their region’s
future. - should not affect Aboriginal people’s access to benefits or services
available to all
Australians.[146]
Regional
agreements may prove effective in the management of the various land dealings
that are the responsibility of Indigenous land holders. The expanded breadth of
Prescribed Bodies Corporate (PBCs) to also manage land trust responsibilities,
for example those negotiated over national park lands, or lands held for the
benefit of Aboriginal peoples could also be provided for in regional agreements.
Governments will need to ensure that PBCs are adequately resourced and supported
to undertake this duty.
(h) Improving mechanisms for evaluation and
monitoring
The Australian Government has identified that regular review of long-term
objectives and the extent to which these are being met is a critical feature of
a good agreement.[147]
The National Native Title Tribunal has also stressed that:
Review mechanisms are important elements in helping to maintain and keep an
agreement ‘on-track’, ensuring that the respective expectations and
objectives of the parties are managed, as well as to ensure on-going
communication between the parties. Few agreements appear to make provision for
periodic or regular review despite the fact that it provides clear opportunities
for the parties to get together to objectively examine the progress of an
agreement. They do not need to wait for a dispute to arise to trigger
communication. It may be a useful strategy to ‘stage’
implementation, and to undertake reviews when identified objectives or targets
are reached.[148]
I consider that native title agreements should provide for regular review.
During such reviews, parties could:
- monitor the progress on the implementation of the agreement
- evaluate the benefits derived from the agreement, including the social,
economic, environmental and cultural benefits received by the Indigenous
community - consider issues concerning compliance with the terms of the agreement and
identify any barriers to compliance - consider whether outcomes remain achievable and relevant.
I
recommend that the Australian Government work with native title parties to
identify and develop criteria to provide guidance on how to monitor, measure,
and evaluate agreements. It may be that the NNTT could play a central role in
developing and promoting such criteria.
3.8 Initiatives to increase the quality and quantity
of anthropologists and other experts working in the native title system
Assembling the expert services necessary to achieve a native title
determination or to pursue complex negotiations with governments and miners is a
time-consuming and expensive aspect of the native title system. However, native
title claimants must have access to the necessary expertise to achieve the best
outcomes. This may require advice from anthropologists, economists, investment
advisors, business managers, contract lawyers and many others.
The Native
Title Payments Working Group was established in 2008 by the Australian
Government to advise on maximising benefits from native title agreements. It
considered that any significant future act negotiations should be based on the
principle that traditional owners should have advice and representation of a
similar quality as the mining company or other proponent. In other words, there
should be a level playing
field.[149]
A mining company would not come to the negotiating table without all of the
necessary expertise required to secure the best protection possible for their
interests. But many native title bodies do not have sufficient access to
this expertise in-house. Nor do they have sufficient resources to obtain it by
contracting-out. Non-recurrent funding also impacts upon the ability of native
title bodies to recruit and retain experienced experts. NTRBs are substantially
under-resourced for the tasks they are expected to perform or
manage.[150] As a result,
the playing field is often far from level.
In addition to providing further
funding to NTRBs and PBCs, this inequality could be addressed by:
- establishing a register of experts
- promoting better use of independent experts in native title claims
- improving training and development opportunities for
anthropologists.
(a) Establishing a register of experts
An innovative response to this issue would be for the Government to fund a
register of experts through which NTRBs and native title parties have access to
the expertise they require to negotiate the best native title agreement
possible.
The register could also serve as a quality control mechanism – to be
included on the register, experts should be required to prove that they meet
relevant professional and ethical standards.
The expert register could extend to professions such as:
- interpreters
- legal and financial experts
- anthropologists.
There may be existing mechanisms that can be
built upon and accessed by those engaged in native title processes. For example,
the Government constituted and has maintained an Australia-wide panel of
consultants to assist with its Indigenous affairs policies and to negotiate
SRAs. These experts are required to undertake a number of roles including
facilitating, negotiating, providing training to government employees, and
providing support to community
members.[151]
A register of
experts will require dedicated resources. However, it can lead to the making of
good agreements – facilitated by skilled negotiators and entered into by
capable communities who know their rights.
(b) Better use of independent experts in native
title claims
Over the past five years, I have voiced concerns about the inappropriate
nature of, and the negative consequences that flow from, the adversarial system
in which native title is determined. I have supported changes to lessen the
impacts of the adversarial system, including to the way that evidence is
received.[152]
As discussed in
Chapter 1 of this Report, the Australian Government has proposed new powers to
allow the Federal Court to refer questions arising from proceedings to a referee
for inquiry and report.[153] This
may go some way to reducing the negative impacts of the adversarial setting upon
native title claimants and the outcomes reached.
Significant time and expense is incurred in the collection of expert
evidence. Courts are often faced with multiple and conflicting expert reports
and testimony. A mechanism by which the court can deal with particular questions
of fact, such as in respect of genealogy, by referring the question to one
independent expert referee may therefore prove useful.
I consider that such a power should only be used with the agreement of the
applicant and the primary respondent. The available pool of appropriate expert
referees is small and parties may legitimately hold strong views about the
appropriateness of a particular referee, particularly where the relevant
question referred is pivotal to the claim.
This approach would also be consistent with the inquiries function provided
for under Part 6, Division 5 of the Native Title Act. This Division provides for
an inquiry to be undertaken by the NNTT at the request of the court (and in
other circumstances) during mediation. However, s 138B(2)(b) provides that
the applicant that is affected by the proposed inquiry must agree to
participate. This consent is necessary for the efficient progression of the
claim and to ensure that resources are not diverted away from the process that
is already underway.
The proposed new provision for referees offers more flexibility in the native
title area as to the timing of the inquiry and who can conduct it. Since its
inception, Part 4 of the Native Title Act has permitted the Federal Court to
make use of an assessor. Also, under the Federal Court rules, trial judges have
convened experts’ conferences outside the court process and had experts
give evidence concurrently within that
process.[154]
The question of who would be responsible for the costs of the independent
expert is a matter for further consideration. If the costs are shared between
the parties, it could have significant implications for NTRBs and the running of
that claim and their other claims. It is my view that the most appropriate party
to pay the expert’s costs is the Australian Government. Ideally, a
separate funding stream would be established by the Government under the
Attorney-General’s portfolio for this purpose.
(c) Improved training and development opportunities
for anthropologists
Experts, such as anthropologists, play a vital role in the preparation and
progress of a native title application and native title agreements. However,
communities can face difficulties in attracting quality expert advice. A study
conducted by the NNTT in 2004 concluded that a key factor in attracting and
maintaining good quality professional anthropologists is whether or not native
title work can positively contribute to the development of their
careers.[155]
The study found that:
- only 20% of consultant anthropologists surveyed saw native title work as
enhancing a career in anthropology - 40% of consultant anthropologists considered that native title work limited
their careers - 30% of anthropologists working in NTRBs viewed native title as enhancing
their career - 40% of anthropologists surveyed offered no
opinion.[156]
To
ensure that communities are able to access quality advice, it is important that
experts receive training that is appropriate for working within the native title
system and that ongoing development opportunities are available to them.
I
consider that courses for students and development programs for experts need to
adopt an interdisciplinary approach. This is required to address challenges such
as the need for anthropologists and other experts to be able to understand the
role of expert witnesses in accordance with the Federal Court’s
guidelines.[157] It could also
serve to promote effective cross-disciplinary communication between experts and
to encourage team work and ethical
professionalism.[158]
David Martin comments that ‘the place for training in anthropological
native title practice (for consultants and those in NTRBs and government
agencies etc) is not in Bachelors degrees but rather should lie in special
purpose courses’.[159] An
example of one such course is the University of Western Australia’s
Graduate Diploma in Applied Anthropology (Native Title and Cultural
Heritage).[160]
Partnerships
between communities, universities, government and industry are also essential
for providing training and development opportunities for experts. For example,
the Aurora Project works with university, corporate and government partners to
deliver capacity building programs and professional development opportunities in
disciplines such as law, anthropology, research, management and
education.[161] This approach is
commendable and worthy of further support.
3.9 Conclusion
The Prime Minister’s National Apology to the Stolen Generations raised
our spirits. It also raised our hopes that this Government would work with us to
remedy the impacts of dispossession.
I believe that an effective native title system is essential to righting the
wrongs of the past and to securing our future.
As I indicated in Chapter 1 of this Report, the Australian Government has
taken some important first steps in reforming the native title system. It is
also encouraging that the Australian Government has committed to engaging in
discussions focused on improving the native title system. We must ensure that
this opportunity is not wasted.
Throughout Chapter 3, I have identified a number of elements of native title
law and policy in need of reform. I have also discussed proposals for further
consideration. My hope is that we are able to continue this conversation. Above
all, I encourage governments, in the spirit of reconciliation, to show genuine
leadership and take action to create a just and equitable native title system.
| Recommendations |
|
[1] Attorney-General’s
Department, Strategic Plan 2009-2010 (2009), p 3. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~AGDStrategicPlan1July2009.rtf/$file/AGDStrategicPlan1July2009.rtf (viewed 12 October 2009).
[2] Commonwealth, Parliamentary Debates, House of Representatives, 14 May
2009, p 3889 (The Hon R McClelland, Attorney-General). At http://www.aph.gov.au/Hansard/reps/dailys/dr140509.pdf (viewed 12 October 2009).
[3] Australian Government, Australian Government Discussion Paper (undated).
At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC(viewed
12 October 2009).
[4] R McClelland,
Attorney-General, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission,
undated.
[5] Native Title Act
1993 (Cth), preamble.
[6] As
discussed throughout this Chapter, the first two areas have been proposed and
supported by a number of native title stakeholders, judges and practitioners.
Along with ‘partnerships with State and Territory Governments to develop
new approaches to the settlement of claims through negotiated agreements’,
the other areas have been specifically listed for attention by the
Attorney-General: see Attorney-General’s Department, Closing the Gap -
Funding For the Native Title System (Additional Funding and Lapsing): Budget
2009-10, Fact Sheet (2009). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Budgets_Budget2009_FundingFortheNativeTitleSystem(AdditionalFundingandLapsing) (viewed 19 September 2009).
[7] Yamatji Marlpa Aboriginal Corporation, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 3 September 2009.
[8] M
Wilcox QC, Response to Oration 2009 (Speech delivered in response to the
2009 Mabo Oration, Brisbane, 5 June 2009). At http://www.adcq.qld.gov.au/ATSI/FromSelfRespect_comments.html (viewed 6 July 2009).
[9] M Wilcox QC, Response to Oration 2009 (Speech delivered in response to
the 2009 Mabo Oration, Brisbane, 5 June 2009). At http://www.adcq.qld.gov.au/ATSI/FromSelfRespect_comments.html (viewed 6 July 2009).
[10] National Native Title
Council, Submission to the Attorney-General’s discussion paper on minor
amendments to the Native Title Act (20 February 2009), p
3.
[11] National Native Title
Council, Submission to the Attorney-General’s discussion paper on minor
amendments to the Native Title Act (20 February 2009), p
3.
[12] L Malezer, 2009 Mabo
Lecture (Speech delivered at the 10th Annual Native Title Conference,
Melbourne, 5 June 2009), p 4. At http://ntru.aiatsis.gov.au/conf2009/papers/2009_MaboLecture.pdf (viewed 12 October 2009).
[13] Committee on the Elimination of Racial Discrimination, Concluding
Observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), para 17. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.AUS.CO.14.En?Opendocument (viewed 1 November 2009).
[14] D
Short, ‘The social construction of Indigenous “Native Title”
land rights in Australia’ (2007) 55(6) Current Sociology 857, p 872
(original emphasis). At http://csi.sagepub.com/cgi/reprint/55/6/857.pdf (viewed 12 October 2009).
[15] Chief Justice RS French, Lifting the burden of native title: Some modest
proposals for improvement (Speech delivered to the Federal Court Native
Title User Group, Adelaide, 9 July 2008), para 29. At http://www.fedCourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf (viewed 9 October 2009).
[16]See,
for example, Sex Discrimination Act 1984 (Cth), s 7C; Workplace
Relations Act 1996 (Cth), s 664. See further, Australian Human Rights
Commission, Inquiry into the Native Title Amendment Bill 2009 –
Submission by the Aboriginal and Torres Strait Islander Commissioner to the
Senate Standing Committee on Legal and Constitutional Affairs (24 April
2009), paras 258 – 260. At http://www.humanrights.gov.au/legal/submissions/2009/20090424_ntab.html (viewed 1 November 2009).
[17] Evidence to Senate Standing Committee on Legal and Constitutional Affairs,
Sydney, 16 April 2009, p 21 (T McAvoy). At http://www.aph.gov.au/hansard/senate/commttee/S11978.pdf (viewed 12 October 2009).
[18] Justice A M North & T Goodwin, Disconnection - the Gap between Law and
Justice in Native Title: A Proposal for Reform (Paper delivered at the 10th
Annual Native Title Conference, Melbourne, 4 June 2009), p 15.
[19] Native Title Act
1993 (Cth), s 190B.
[20] Native Title Act 1993 (Cth), ss 66, 190C.
[21] Justice R French, Lifting the burden of native title – some modest proposals for
improvement (Speech delivered to the Federal Court, Native Title User Group,
Adelaide, 9 July 2008), para 29. At http://www.fedCourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf (viewed 9 October 2009).
[22] Justice R French, Lifting the burden of native title – some modest
proposals for improvement (Speech delivered to the Federal Court, Native
Title User Group, Adelaide, 9 July 2008), para 31. At http://www.fedCourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf (viewed 9 October 2009).
[23] Justice R French, Lifting the burden of native title – some modest
proposals for improvement (Speech delivered to the Federal Court, Native
Title User Group, Adelaide, 9 July 2008), para 31. At http://www.fedCourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf (viewed 9 October 2009).
[24] Justice A M North & T Goodwin, Disconnection - the Gap between Law and
Justice in Native Title: A Proposal for Reform (Paper delivered at the 10th
Annual Native Title Conference, Melbourne, 4 June 2009), p 14.
[25] For discussion on the
requirement for continuity, see H McRae et al, Indigenous Legal Issues (4th ed, 2009), p 348.
[26] Justice A M North & T Goodwin, Disconnection - the Gap between Law and
Justice in Native Title: A Proposal for Reform (Paper delivered at the 10th
Annual Native Title Conference, Melbourne, 4 June 2009), p
2.
[27] Yorta Yorta v
Victoria (2002) 214 CLR
422.
[28] Risk v Northern
Territory [2006] FCA 404, para 839. The decision was upheld on appeal to the
Full Federal Court: Risk v Northern Territory (2007) 240 ALR 75.
[29] Chief Justice R S French,
‘Lifting the burden of native title: Some modest proposals for
improvement’ (2009) 93 Reform 10, p
13.
[30] Chief Justice R S
French, ‘Lifting the burden of native title: Some modest proposals for
improvement’ (2009) 93 Reform 10, p
13.
[31] Native Title Act 1993 (Cth), ss 223(1)-223(3).
[32] Native Title Act 1993 (Cth), s
223(1).
[33] Justice A North
& T Goodwin, Disconnection – the Gap between Law and Justice in
Native Title: A Proposal for Reform (Paper delivered at the 10th Annual
Native Title Conference, Melbourne, 4 June 2009), pp
8-9.
[34] For a discussion of the
rights of Indigenous peoples to culture, including comments on the adaptation
and revitalisation of culture, see T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2008,
Australian Human Rights Commission (2009), pp 87-88. At http://www.humanrights.gov.au/social_Justice/nt_report/ntreport08/index.html (viewed 21 October 2009).
[35] De Rose v South Australia No 2 (2005) 145 FCR 290,
319.
[36] T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report 2008, Australian Human Rights Commission (2009), p 90. At http://www.humanrights.gov.au/social_Justice/nt_report/ntreport08/index.html (viewed 21 October 2009).
[37] Justice A M North & T Goodwin, Disconnection - the Gap between Law and
Justice in Native Title, A proposal for reform (Paper delivered at the 10th
Annual Native Title Conference, Melbourne, 4 June 2009), p 7.
[38] Yorta Yorta v
Victoria (2002) 214 CLR 422, 456.
[39] Justice A M North & T
Goodwin, Disconnection - the Gap between Law and Justice in Native Title: A
Proposal for Reform (Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009), p
14.
[40] Risk v Northern
Territory [2006] FCA 404, para
938.
[41] As previously
recommended in T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2008, Australian Human Rights
Commission (2009), p 90. At http://www.humanrights.gov.au/social_Justice/nt_report/ntreport08/index.html (viewed 21 October 2009).
[42] Justice A M North & T Goodwin, Disconnection - the Gap between Law and
Justice in Native Title: A Proposal for Reform (Paper delivered at the 10th
Annual Native Title Conference, Melbourne, 4 June 2009), p
16.
[43] Justice A M North &
T Goodwin, Disconnection - the Gap between Law and Justice in Native Title: A
Proposal for Reform (Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009), p
16.
[44] Justice A M North &
T Goodwin, Disconnection - the Gap between Law and Justice in Native Title: A
Proposal for Reform (Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009), p
16.
[45] Kuuku Ya'u People v
State of Queensland [2009] FCA 679, para
10.
[46] R Farrell, J Catlin
& T Bauman, Getting Outcomes Sooner, Report on a native title connection
workshop: Barossa Valley, July 2007, Report prepared on behalf of the
National Native Title Tribunal and the Australian Institute of Aboriginal and
Torres Strait Islander Studies (2007). At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[47] For
an overview of state and territory approaches to the preparation and assessment
of connection materials, see R Farrell, J Catlin & T Bauman, Getting
Outcomes Sooner, Report on a native title connection workshop: Barossa Valley,
July 2007, Report prepared on behalf of the National Native Title Tribunal
and the Australian Institute of Aboriginal and Torres Strait Islander Studies
(2007), app 3. At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[48] Hunter v State of Western Australia [2009] FCA
654.
[49] Hunter v State of
Western Australia [2009] FCA 654, para
22.
[50] Hunter v State of
Western Australia [2009] FCA 654, paras 22-25.
[51] R Farrell, J Catlin & T
Bauman, Getting Outcomes Sooner, Report on a native title connection
workshop: Barossa Valley, July 2007, Report prepared on behalf of the
National Native Title Tribunal and the Australian Institute of Aboriginal and
Torres Strait Islander Studies (2007), p 22. At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[52] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2004, Human Rights and Equal Opportunity Commission
(2005), p 21. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport04/index.html (viewed 12 October 2009).
[53] National Native Title Tribunal, National Report: native title (2009), p
3. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Corporate%20publications/National%20Report%20Card%20-%20March%202009.pdf (viewed 13 August 2009).
[54] Chief Justice RS French, ‘Lifting the burden of native title: Some modest
proposals for improvement’ (2009) 93 Reform 10, p
12.
[55] Hunter v State of
Western Australia [2009] FCA 654, paras 16-17.
[56] T McAvoy, ‘Native
Title Litigation Reform’ (2008) 8(12) Native Title News 193, p 195.
[57] Victorian Government, Comments on the Australian Government’s Discussion
Paper
Proposed minor native title amendments (2008), p 3. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Submission+-+Victorian+Department+of+Justice.pdf/$file/Submission+-+Victorian+Department+of+Justice.pdf (viewed 17 August 2009).
[58] Victorian Government, Comments on the Australian Government’s
Discussion Paper Proposed minor native title amendments (2008), p 3. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Submission+-+Victorian+Department+of+Justice.pdf/$file/Submission+-+Victorian+Department+of+Justice.pdf (viewed 17 August 2009), p 3.
[59] Kuuku Ya'u People v
State of Queensland [2009] FCA 679, para
13.
[60] T McAvoy, ‘Native
title litigation reform’ (2009) 39 Reform 30, p
31.
[61] Justice A M North &
T Goodwin, Disconnection - the Gap between Law and Justice in Native Title: A
Proposal for Reform (Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 4 June 2009), p
15.
[62] R Farrell, J Catlin
& T Bauman, Getting Outcomes Sooner, Report on a native title connection
workshop: Barossa Valley, July 2007, Report prepared on behalf of the
National Native Title Tribunal and the Australian Institute of Aboriginal and
Torres Strait Islander Studies (2007), p 27. At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[63] R
Farrell, J Catlin & T Bauman, Getting Outcomes Sooner, Report on a native
title connection workshop: Barossa Valley, July 2007, Report prepared on
behalf of the National Native Title Tribunal and the Australian Institute of
Aboriginal and Torres Strait Islander Studies (2007), pp 20-21. At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[64] R
Farrell, J Catlin & T Bauman, Getting Outcomes Sooner, Report on a native
title connection workshop: Barossa Valley, July 2007, Report prepared on
behalf of the National Native Title Tribunal and the Australian Institute of
Aboriginal and Torres Strait Islander Studies (2007), pp 20-21. At http://ntru.aiatsis.gov.au/major_projects/connectionpdfs/getting_outcomes_sooner.pdf (viewed 31 August 2009).
[65] B
Cribb, Register of Interests in Land (Presentation delivered at the
National Summit on Improving the Administration of Land and Property Rights and
Restrictions, Brisbane, 16 November
2004).
[66] J Altman, G Buchanan & L Larsen, The environmental significance of the Indigenous estate: Natural resource
management as economic development in remote Australia, CAEPR Discussion
Paper No 286/2007 (2007), p 14. At http://www.anu.edu.au/caepr/system/files/Publications/DP/2007_DP286.pdf (viewed 21 October 2009).
[67] M
C Hole AM, Where to from here – some options (Paper delivered at
the National Summit on Improving the Administration of Land and Property Rights
and Restrictions, Brisbane, 16 November
2004).
[68] PSMA Australia
Limited, Final Project Report: Land Tenure: Version 1.0 (2008). At http://nlwra.gov.au/files/products/national-land-and-water-resources-audit/pn21458/pn21458.pdf (viewed 30 October 2009).
[69] G
Neate, National Native Title Tribunal, Email to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, 2 September
2009.
[70] For a discussion on
how access to such information could help Aboriginal and Torres Strait Islander
peoples to identify opportunities to engage in economic development, see T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2008, Australian Human Rights Commission (2009), p
120. At http://www.humanrights.gov.au/social_Justice/nt_report/ntreport08/index.html (viewed 21 October 2009).
[71] UN Human Rights Committee, International covenant on civil and political
rights - Replies to the list of issues to be taken up in connection with the
consideration of the Fifth Periodic Report of the Government of Australia
(CCPR/C/Aus/5), UN Doc CCPR/C/AUS/Q/5/Add.1 (5 February 2009), para 42. At http://www2.ohchr.org/english/bodies/hrc/hrcs95.htm (viewed 1 November 2009).
[72] South Australian Native Title Services, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 14 August 2009.
[73] D O’Dea, Negotiating consent determinations: Co-operative mediation
– the Thalanyji experience (Paper delivered to the Third Negotiating
Native Title Forum Melbourne, 19 February 2009), p 28. At http://www.nntt.gov.au/News-and-Communications/Speeches-and-papers/Documents/2009/Thalanyji%20Experience%20-%20Negotiating%20Consent%20Determinations.pdf (viewed 7 July 2009).
[74] The
2007 amendments slightly amended the test for party status by requiring that the
interest is in ‘relation to land or waters’ and other minor changes.
See further T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007, Human Rights and Equal
Opportunity Commission (2008), p 35. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 12 October 2009).
[75] Native Title Act 1993 (Cth), s
84(3)(iii).
[76] Native Title
Act 1993 (Cth), s 84(5).
[77] Australian Conservation Foundation v Commonwealth (1978)146 CLR 493. See
further Onus v Alcoa (1981) 149 CLR 27; Bateman’s Bay Local
Aboriginal Land Council v Aboriginal Benefit Fund Pty Ltd (1998) 194 CLR
247.
[78] See generally, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR
421; United States Tobacco Co v Minister for Consumer Affairs (1988) 83
ALR 79; Cameron v Human Rights and Equal Opportunity Commission (1993) 46
FCR 509; Right To Life Association (NSW) Inc v Secretary, Department of Human
Services and Health & Anor (1995) 56 FCR 50; Ogle v Strickland (1987) 13 FCR 306.
[79] Persons who meet the criteria listed in s 84(3)(a) must notify the Federal Court
in writing that they want to be a party to the proceedings within the specified
timeframes: Native Title Act 1993 (Cth), s 84(3)(b).
[80] Native Title Act
1993 (Cth), s 84(3)(iii). See also Native Title Act 1993 (Cth), s
84(5): ‘The Federal Court may at any time join any person as a party to
the proceedings, if the Court is satisfied that the person’s interests may
be affected by a determination in the proceedings and it is in the interests of
justice to do so’.
[81] Native Title Act 1993 (Cth), ss 84(3)(a)(i), 66(3)(a)(iv).
[82] It is acknowledged that
persons who become parties under ss 84(3)(a)(ii) or 84(3)(a)(i) (by virtue of ss
66(3)(a)(i)-(iii), 66(3)(a)(v)-(vi)) have interests of a nature that they would
be substantially affected by a determination if it is made, and consequently
they should not be required to make a formal application to the Court to be
joined as a party.
[83] Native Title Act 1993 (Cth), s 84(7).
[84] Explanatory Memorandum,
Native Title Amendment Bill 2009 (Cth), p 1. At http://www.comlaw.gov.au/ComLaw/Legislation/Bills1.nsf/framelodgmentattachments/AFDD13BE259AA5D7CA25757F000DB152 (viewed 12 October 2009).
[85] D
O’Dea, Negotiating consent determinations: Co-operative mediation
– the Thalanyji experience (Paper delivered to the Third Negotiating
Native Title Forum, Melbourne, 19 February 2009), pp 28-29. At http://www.nntt.gov.au/News-and-Communications/Speeches-and-papers/Documents/2009/Thalanyji%20Experience%20-%20Negotiating%20Consent%20Determinations.pdf (viewed 7 July 2009).
[86] Section 94J (formerly s 136DA) of the Native Title Act 1993 (Cth) already
allows a member of the NNTT to refer to the Federal Court the question of
whether the party should cease to be a party.
[87] Native Title Act 1993 (Cth), s 213A (formerly s 183, until the commencement of the Native Title
Amendment Act 2009 (Cth)). For more information see T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Human Rights and Equal Opportunity Commission (2008), ch 4. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 12 October 2009).
[88] Native Title Act 1993 (Cth), s
213A(5).
[89] Australian National
Audit Office, Administration of the Native Title Respondents Funding Scheme, Audit Report No 1 (2006), p 133. At http://www.anao.gov.au/uploads/documents/2006-07_Audit_Report_17.pdf (viewed 16 October 2009).
[90] Attorney-General, Guidelines on the Provision of Financial Assistance by the
Attorney-General under the Native Title Act 1993 (2006).
[91] Guidelines on the
Provision of Financial Assistance by the Attorney-General under the Native Title
Act 1993 (2006), div
7.9.
[92] Legal Services
Directions 2005, as amended, made under section 55ZF of the Judiciary Act
1903 (Cth), app B.
[93] See
generally Rubibi Community v State of Western Australia (No 7) [2006] FCA
459, para 169.
[94] L Godden et
al, ‘Introduction: Accommodating Interests in Resource Extraction:
Indigenous Peoples, Local Communities and the Role of Law in Economic and Social
Sustainability’ (2008) 26(1) Journal of Energy and Natural Resources
Law 1, p 22.
[95] National
Native Title Tribunal, Annual Report 2008-2009 (2009), p 52. At http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Annual%20reports/Annual%20Report%202008-2009.pdf (viewed 7 December 2009).
[96] Rio Tinto, Submission to the House Standing Committee Inquiry to develop
Indigenous Enterprises (24 July 2008), p 10. At www.aph.gov.au/house/committee/atsia/indigenousenterprises/subs.htm (viewed 20 August 2009).
[97] Australian Government, Australian Government Discussion Paper (undated).
At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009).
[98] Native Title Payments Working Group, Report (undated), p 2. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Working+Group+report+-+final+version.DOC/$file/Working+Group+report+-+final+version.DOC (viewed 12 October 2009).
[99] C
O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in
Contemporary Australia: A New Political Economic or Business as Usual?’
(2006) 41(1) Australian Journal of Political Science 1, p
17.
[100] R McClelland
(Attorney-General), Native Title Consultative Forum (Speech delivered at
the Native Title Consultative Forum, Canberra, 4 December 2008), para 7. At http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FourthQuarter_4December2008-NativeTitleConsultativeForum (viewed 16 November
2009).
[101] Section 86F of the
Native Title Act recognises that broad agreements can be negotiated. As drafted
prior to the Native Title Amendment Act 2009 (Cth), the Act did not
clearly provide that it was within the Court’s jurisdiction to make
determinations dealing with matters beyond native title, or recognise that the
Court may be able to assist the parties to negotiate side agreements covering
matters beyond native title: Attorney-General, Discussion Paper: Proposed
minor native title amendments (2008), p 4. At http://www.ag.gov.au/www/agd/rwpattach.nsf/PublicbySrc/Native+Title+Amendment+Bill+2009+-+Discussion+paper.pdf/$file/Native+Title+Amendment+Bill+2009+-+Discussion+paper.pdf (viewed 19 October 2009). The 2009 amendments allow the Court to make separate
orders, under ss 87 and 87A, covering matters beyond native title. The parties
would have to agree on these further matters. The change allows the Court to
assist parties to resolve native title and related matters at the same time and
is intended to create more certainty, more finalised native title claims and
better outcomes for stakeholders. See the Explanatory Memorandum, Native Title
Amendment Bill 2009 (Cth), p
31.
[102] Explanatory
Memorandum, Native Title Amendment Bill 2009 (Cth), p 6. See also T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), chs 4 – 6, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 19 October 2009); T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2007, Human Rights and Equal
Opportunity Commission (2008), ch 11, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[103] South Australian Native Title Services, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 14 August 2009.
[104] Smith on behalf of
the Gnaala Karla Booja People v State of Western Australia [2001] FCA
19.
[105] Attorney-General’s Department, The right to negotiate and the expedited
procedure, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Therighttonegotiateandtheexpeditedprocedure (viewed 26 August 2009).
[106] Attorney-General’s Department, The future acts regime, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Thefutureactsregime (viewed 26 August 2009).
[107] For further analysis, see W Jonas, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 1999, Human Rights and Equal
Opportunity Commission (2000), ch 2. At http://www.humanrights.gov.au/word/social_justice/native_title_report_99.doc (viewed 19 October 2009).
[108] S Burnside, ‘Take it or leave it’: how not to negotiate in good
faith (Paper delivered at the 10th Annual Native Title
Conference, Melbourne, 3 June 2009). At http://ntru.aiatsis.gov.au/conf2009/papers/SarahBurnside.pdf (viewed 24 June 2009).
[109] Native Title Act 1993 (Cth), s 26(3).
[110] See, for example, R
McClelland (Attorney-General), 3rd Negotiating Native Title Forum (Speech
delivered at the Third Negotiating Native Title Forum, Melbourne, 20 February
2009), para 30. At http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2009_20February2009-3rdNegotiatingNativeTitleForum (viewed 4 September 2009).
[111] Native Title Act
1993 (Cth), s 35(1).
[112] FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49, para
21.
[113] FMG Pilbara Pty
Ltd v Cox [2009] FCAFC 49, para 21.
[114] Native Title Act
1993 (Cth), s 38(2).
[115] Native Title Act 1993 (Cth), s
33.
[116] Native Title Act
1993 (Cth), s 38(1).
[117] Native Title Act 1993 (Cth), s
38(2).
[118] C
O’Faircheallaigh, Submission to the Department of Families, Housing,
Community Services and Indigenous Affairs on Optimising Benefits from Native
Title Agreements (February 2009), pp 3 – 4.
[119] T Corbett & C
O’Faircheallaigh, ‘Unmasking the politics of native title: the
National Native Title Tribunal’s application of the NTA’s
arbitration provisions’ (2006) 33(1) University of Western Australia
Law Review 153, pp
157-158.
[120] Victorian
Government, Comments on the Australian Government’s Discussion
Paper
Proposed minor native title amendments (2008), p 7. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Submission+-+Victorian+Department+of+Justice.pdf/$file/Submission+-+Victorian+Department+of+Justice.pdf (viewed 17 August 2009).
[121] J Macklin (Minister for Families, Housing, Community Services and Indigenous
Affairs), Beyond Mabo: Native title and closing the gap (Speech delivered
as the 2008 Mabo Lecture, James Cook University, Townsville, 21 May 2008), p 3.
At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/beyond_mabo_21may08.htm (viewed 19 October 2009).
[122] See further, Chapter 2 of this
Report.
[123] See T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Human Rights and Equal Opportunity Commission (2008), ch
10. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[124] Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA
474. See further T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007, Human Rights and Equal
Opportunity Commission (2008), pp 225-227. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[125] Yarmirr v Northern Territory (1998) 82 FCR 533, 587[D].
[126] Yarmirr v Northern
Territory (1998) 82 FCR 533, 588[C]. This approach appears to have been
endorsed by Beaumont and von Doussa JJ in the Full Court, where their Honours
noted ‘the group was confronted with obvious difficulties in seeking to
prove title to resources of the kind in question, given their diversity of
specific character and location in a relatively large area of sea’: Commonwealth v Yarmirr & Ors (2000) 101 FCR 171,
231.
[127] T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Human Rights and Equal Opportunity Commission (2008), pp 223-224. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[128] W Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002, Human Rights and Equal Opportunity Commission
(2003), ch 2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport02/chapter2.html#1.2 (viewed 12 January 2009).
[129] Chief Justice RS French,
‘Lifting the burden of native title: Some modest proposals for
improvement’ (2009) 93 Reform 10,
13.
[130] R Hulls,
Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008.
[131] Native Title Act 1993 (Cth), ss 86F(3), 86F(4).
[132] G Neate, Native title
claims: Overcoming obstacles to achieve real outcomes (Paper delivered at
the Native Title Development Conference, Brisbane, 27 October 2008), p 36. At http://www.nntt.gov.au/News-and-Communications/Speeches-and-papers/Documents/2008/Overcoming%20obstacles%20to%20achieve%20real%20outcomes%20-%20Graeme%20Neate%20-%20October%202008.pdf (viewed 19 October 2009).
[133] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[134] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[135] Traditional owner from North Queensland (not specified), quoted in T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2006, Human Rights and Equal Opportunity Commission (2007), p 25. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[136] Traditional owner of the Umpila territories, Cape York, quoted in T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2006, Human Rights and Equal Opportunity Commission (2007), p 26. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[137] Traditional owner of the Gubbi Gubbi and Butchulla territories, quoted in T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2006, Human Rights and Equal Opportunity Commission
(2007), p 26. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[138] Traditional owner of the Gubbi Gubbi and Butchulla territories, quoted in quoted
in T Calma, Native Title Report 2006, Human Rights and Equal Opportunity
Commission (2007), p 26. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/chp_1.html (viewed 12 August 2009).
[139] Native Title Payments Working Group, Report (undated), p 2. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Working+Group+report+-+final+version.DOC/$file/Working+Group+report+-+final+version.DOC (viewed 12 October 2009).
[140] Department of Justice, Native Title Unit (on behalf of the State of Victoria), Submission on Australian Government’s discussion paper:
“Optimising Benefits from Native Title Agreements” (undated), p 12.
[141] Department of
Justice, Native Title Unit (on behalf of the State of Victoria), Submission
on Australian Government’s discussion paper: “Optimising Benefits
from Native Title Agreements” (undated), p 12.
[142] T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2006, Human Rights and Equal Opportunity Commission (2007), ch 5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 29 October 2009). Other examples of templates and framework agreements
are considered in T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2006, Human Rights and Equal
Opportunity Commission (2007), ch 4, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 29 October 2009); T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2007, Human Rights and Equal
Opportunity Commission (2008), ch 11, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 19 October 2009).
[143] See further T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2006, Human Rights and Equal
Opportunity Commission (2007), ch 5. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 19 October 2009).
[144] T Hall, quoted in T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2006, Human Rights and Equal
Opportunity Commission (2007), p 136. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html (viewed 19 October 2009).
[145] For further information about RPAs and SRAs, see Australian Government, Indigenous Portal, https://www.indigenous.gov.au/sra.html (viewed 12 October 2009).
[146] Department of Indigenous Affairs (Government of Western Australia), Regional
Partnership Agreements, http://www.dia.wa.gov.au/Our-Business/Partnerships/ (viewed 4 September 2009).
[147] Australian Government, Australian Government Discussion Paper (undated), p 6. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Discussion+paper+-+final+version.DOC/$file/Discussion+paper+-+final+version.DOC (viewed 12 October 2009).
[148] M Allbrook & M Jebb, Implementation and Resourcing of Native Title
Agreements: Final Report, National Native Title Tribunal (2004), p 23. At http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Implementation%20and%20resourcing%20of%20native%20title%20and%20related%20agreements.pdf (viewed 25 August 2009).
[149] Native Title Payments Working Group, Native Title Payments Working Group
Report (undated). At http://www.fahcsia.gov.au/sa/indigenous/progserv/land/Documents/native_title_wg_report/Native_title_working_group_report.pdf (viewed 10 August 2009).
[150] Attorney-General’s Department, Closing the Gap - Funding For the Native
Title System (Additional Funding and Lapsing): Budget 2009-10, Fact
Sheet (2009). At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Budgets_Budget2009_FundingFortheNativeTitleSystem(AdditionalFundingandLapsing) (viewed 19 September 2009). See further, my comments in Chapter 1 of this
Report.
[151] Success Works,
Melbourne Australia, Facilitation of Community Development and Engagement,
Department of Immigration and Multicultural Affairs (DIMIA) (current). At http://www.success-works.com.au/projects.htm (viewed 28 August 2009).
[152] For example, for recommendations regarding the application of the rules of
evidence to native title proceedings, see Australian Human Rights Commission, Submission by the Aboriginal and Torres Strait Islander Social Justice
Commissioner to the Senate Standing Committee on Legal and Constitutional
Affairs (23 April 2009), paras 144 – 157. At http://www.humanrights.gov.au/legal/submissions/2009/20090424_ntab.html (viewed 16 October 2009).
[153] Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth).
[154] See R Farrell,
‘Hot-tubbing’ anthropological evidence in native title mediations (2007). At www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Hot%20tubbing.pdf (viewed 6 October 2009).
[155] D F Martin (Anthropos Consulting Services), Report to the National Native
Title Tribunal – Capacity of Anthropologists in Native Title Practice (2004), para 13. At http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Capacity%20of%20Anthropologists%20in%20Native%20Title%20Practice.pdf (viewed 1 November 2009).
[156] D F Martin (Anthropos Consulting Services), Report to the National Native
Title Tribunal – Capacity of Anthropologists in Native Title Practice (2004), para 13. At http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Capacity%20of%20Anthropologists%20in%20Native%20Title%20Practice.pdf (viewed 1 November 2009).
[157] Chief Justice M E J Black, Federal Court of Australia, Practice Note CM 7 -
Expert Witnesses in Proceedings in the Federal Court of Australia (25
September 2009). At http://www.fedcourt.gov.au/how/practice_notes_cm7.html (viewed 16 October 2009).
[158] Martin’s study
found anecdotal evidence from anthropologists working within NTRBs that suggests
ongoing professional tension between legal and anthropological perspectives. For
example, while anthropologists are often required to implement Federal Court
directions relating to the role of expert witnesses, there have been claims of
lawyers pressuring anthropologists into writing reports in terms with which they
professionally and ethically disagree. See D F Martin (Anthropos Consulting
Services), Report to the National Native Title Tribunal – Capacity of
Anthropologists in Native Title Practice (2004), paras 41, 42. http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Capacity%20of%20Anthropologists%20in%20Native%20Title%20Practice.pdf (viewed 1 November 2009).
[159] D F Martin (Anthropos Consulting Services), Report to the National Native
Title Tribunal – Capacity of Anthropologists in Native Title Practice (2004), para 175. At http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Capacity%20of%20Anthropologists%20in%20Native%20Title%20Practice.pdf (viewed 1 November 2009).
[160] See University of Western Australia, Faculty of Arts, Humanities and Social
Sciences, Graduate Diploma in Applied Anthropology (Native Title and Cultural
Heritage), http://www.arts.uwa.edu.au/courses/postgrad/coursework/graddipappanth (viewed 30 October 2009).
[161] See The Aurora Project, http://www.auroraproject.com.au (viewed 29 October 2009).