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Editors --- "National Native Title Tribunal- Right to Negotiate Procedures - Digest" [1996] AUIndigLawRpr 23; (1996) 1(1) Australian Indigenous Law Reporter 117

National Native Title Tribunal
Right to Negotiate Procedures

The Native Title Act 1993 (Cth) (`NTA') makes provision for "future acts" in respect of land subject to native title, mainly in Part 2, Division 3. Generally speaking, such acts are permissible if they would be permissible in respect of "ordinary title" (ss. 233-236) and are subject to similar requirements as to procedures and compensation. In respect of such "permissible future acts", holders of native title have a "right to negotiate" under Part 2, Division 3, Subdivision B. The right to negotiate arises with respect to proposals for mining activity and proposals compulsorily to acquire native title rights and interests in order to confer rights or interests on others (s. 26). If negotiation fails to achieve agreement within the time specified in s. 35, any party in negotiation may apply to the "arbitral body" for a determination of whether or not the proposal should proceed and, if so, under what conditions. However, such a determination may be overruled by a Minister within two months.

The "arbitral body" established under the NTA is the National Native Title Tribunal (NNTT). (The NTA also provides for recognised "State/Territory bodies" to function as "arbitral bodies"). On 7 June 1995, the President of the NNTT, the Honourable Justice French, issued "National Native Title Right to Negotiate Procedures" under s. 123 of the NTA. Revised procedures, issued on 8 September 1995, are reproduced below. New elements are shown in italics.

1. Nature of the Procedures

1. [1] The following procedures will be subject to modification in the light of experience and submissions and suggestions from persons affected by the work of the Tribunal. They are to be applied as guidelines. Subject to the requirements of the Native Title Act 1993 they may be varied or departed from in any case in which the Native Title Registrar or a member of the Tribunal thinks it appropriate to permit such variation or departure.

2. Application of the Procedures

2. [1] The procedures apply to:

2.1. [1] the giving of notice by a Government party to the Tribunal of intention to do an act to which the provisions of subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply -- i.e. the right to negotiate system;

2.1. [2] an application by a native title party under sub-s.32(3) objecting to the inclusion of a statement that an act is an act attracting the expedited procedure;

2.1. [3] a request by a negotiation party to the Tribunal as the arbitral body to mediate in relation to the doing of the proposed act (s.31(2));

2.1. [4] an application by a negotiation party under s. [35] for a determination in relation to a future act.

2. [2] These procedures apply to a class of government acts, whether by law-making or executive action, which affect native title to any extent or would, if valid, affect native title. Future permissible acts generally are defined by s. [235] of the Act which must be read with the definition of "future act" in s.233. The particular future permissible acts to which these procedures apply are those which attract the right to negotiate regime under ss. [26] to 44 of the Native Title Act. They are as set out in s.26(2):

2.2. [1] the creation of a right to mine, whether by the grant of a mining lease or otherwise;

2.2. [2] the variation of such a right, to extend the area to which it relates;

2.2. [3] the extension of the period for which such a right has effect, other than under an option or right of
extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine;

2.2. [4] the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act, where the purpose of the acquisition is to confer rights or interests in relation to the land or water concerned on persons other than the government party;

2.2. [5] any other act approved by the Commonwealth Minister in writing for the purposes of s.26(2)(e) of the Native Title Act 1993.

2. [3] By virtue of s.26(3) the categories of acts to which the procedures apply do not include:

2.3. [1] acts in relation to an area the subject of an unopposed non-claimant application (s.24(1)(a));

2.3. [2] acts affecting an area where a law of a State or Territory has similar effect in relation to an application for an approved determination of native title by a recognised State/Territory body (s.24(1)(b));

2.3.3. renewals of interests that take place in the exercise of a legally enforceable right that was created before 1 January 1994 (s.25(1));

2.3. [4] acts determined in writing by the Commonwealth Minister to be excluded from the coverage of s.26(2).

2. [4] The above are merely indicative definitions of the acts affected by these procedures. For a more precise definition, reference should be made to the Act (ss.233, 235 and 26).

2. [5] These procedures apply only where the National Native Title Tribunal is the arbitral body in relation to the proposed act. This will be the case if the act is proposed to be done by the Commonwealth. It will also be the case where the act is proposed to be done by a State or Territory Government unless that State or Territory has established its own arbitral body in accordance with the Native Title Act 1993 (s.27).

3. Notification to Tribunal of Intention to do Act

3. [1] Where the Tribunal is the relevant arbitral body, the Government body must give notice to the Tribunal of its intention to do the act (s.29(1)). It may give such notice by sending to the Tribunal a written notice setting out:

3.1. [1] a clear description of the land to be affected by the act;

3.1. [2] the nature of the act that the Government party intends to do in relation to the land;

3.1. [3] the time at which it is intended to begin to do the act;

3.1. [4] the period during which rights may be exercised pursuant to the act;

3.1. [5] an indication of the kind of disturbance to the land that the act will authorise.

3. [2] The notice may be sent by facsimile transmission to the Registry of the Tribunal nearest to the Government party or to the Principal Registry of the Tribunal in Perth.

3. [3] The government party may, prior to or when giving its notice, request that the Registrar advise of any claim received or accepted which affects the area the subject of the notice.

3. [4] Except where it includes a statement that the government party considers the act attracts the expedited procedure, the government party should state in the notice:

(i) that all native title parties have the opportunity to make submissions to it in writing or orally regarding the
act;

(ii) that it will negotiate with them and the grantee parties about the doing of the act; and

(iii) that the Tribunal (if it is the relevant arbitral body) will mediate among the parties if requested by any of
them to do so.

3. [5] On receipt of a notice under s.29(1)(e) the Tribunal will take all reasonable steps to expedite pending mediation conferences or inquiries with respect to the land the subject of the notice. Where a native title application exists the Tribunal will advise all parties of their right to request that it mediate among them to assist in obtaining their agreement.

4. Notification of Intention to Apply Expedited Procedure -- Sections 31 and 237

4. [1] If the Government party includes in its notice to the Tribunal a statement that it considers the act attracts the expedited procedure it is desirable that the notice briefly state the reasons having regard to the requirement of s. [237] that, in order to attract the expedited procedure, a future act:

4.1. [1] must not directly interfere with the community life of the persons who are the holders of native title in relation to the land or waters concerned; and

4.1. [2] must not interfere with areas or sites of particular significance in accordance with their traditions, to the persons who are the holders of the native title in relation to the land or waters concerned; and

4.1. [3] must not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned (s.237).

5. Objection to Expedited Procedure -- Section 32

5. [1] The following parties may lodge an objection under s. [32] of the Act to the application of the expedited procedure:

5.1. [1] any registered native title body corporate or registered native title claimant in relation to any of the land or waters that will be affected by the act (s.29(2)(a) and (b)). Such objection must be lodged within 2 months of the giving of notice to the body corporate or claimant as the case may be;

5.1. [2] any person who becomes a registered native title claimant in respect to any of the land or waters that will be affected by the act within 2 months starting when notice is given to the public. Such objection must be lodged within the same 2 month period (s.30).

5. [2] A person who lodges an application for a determination that native title exists in relation to the land or waters concerned may lodge an objection at the same time as the application but the objection will only be regarded as valid if the application is lodged within 2 months of the notice given by the government party to the public pursuant to s.29(3) (s.30).

5. [3] An objection by a native title party to the application of the expedited procedure must be in the form of an application which complies with the requirements of Form 4 in Schedule 1 of the National Native Title Tribunal Regulations (s.75(2)).

5. [4] The objection application should include or be accompanied by an outline of the type of evidence that is relied upon to support the objection. (Form 4 para.8). The evidence should be relevant to one or more of the grounds upon which an act may be said to attract the expedited procedure pursuant to s. [237] of the Act [reference to section deleted].

5. [5] If the objection application complies with the requirements of s. [75] and is accompanied by the prescribed documents and the prescribed fee the Registrar will accept it (s.77).

6. Application for Native Title Determination -- Acceptance Process

6. [1] When an application for a determination that native title exists is lodged in respect of land or waters the subject of a notice under s.29, the Registrar will apply the general Procedures for Application for Native Title Determination and Compensation, and in the normal course a decision will be made within 14 days of receipt of the application.

6.2 The Registrar will establish and maintain a list of notices issued under s. [29] of the Act and check each application lodged with the Tribunal to determine whether or not it applies to land or waters the subject of such a notice.

6. [3] Where an application for a determination that native title exists is lodged in respect of land or waters the subject of a notice under s. [29] and that fact is known to the applicant, the applicant shall advise the Registrar of that fact.

6. [4] Upon receipt of an application for a determination that native title exists in respect of land or waters the subject of a notice under s.29, which is also the subject of such an application by other applicants, the Registrar will forthwith request the respective applicants to confer in an endeavour to settle any differences that might exist between them.

7. Notice by Tribunal of Objection to Expedited Procedure

7. [1] Within 7 days of receipt of an objection to the application of the expedited procedure, the Tribunal shall give notice of the objection to the government and grantee parties. It will also give notice to all parties of a date, not more than 14 days in advance, of a pre-inquiry hearing which will ordinarily be a short preliminary conference.

8. Procedures for Determining Whether an Act Attracts the Expedited Procedure -- Sections 32(4), 75 and 139(b)

8. [1] At the preliminary conference and any adjourned conference, directions may be given in relation to the inquiry including:

(i) issues before the inquiry where they can be agreed;

(ii) the times and places at which and the ways in which evidence shall be taken;

(iii) the lodgment and inspection of documentary evidence to be relied upon by any party;

(iv) the inspection of documents to which the Tribunal proposes to have regard (s.142);

(v) arrangements for preparation of a statement of agreed facts and/or agreed documents;

(vi) the lodgment of submissions by the parties;

(vii) whether any part of the inquiry should be held in private and the parties who may be present (s.154(3));

(viii) the taking of evidence for the purposes of the inquiry by a member of the Tribunal or a person authorised by the Tribunal pursuant to s.157(1);

(ix) the definition of any question of law to be referred to the Federal Court (s.45);

(x) whether the President should be asked to direct the holding of a conference to help in resolving any matter that is relevant to the inquiry.

8. [2] The party objecting to the application of the expedited procedure will produce and circulate prior to the directions hearing a minute of proposed directions for the conduct of the inquiry. The parties will be expected to take reasonable steps to try to agree the issues and directions for the proposed inquiry.

8. [3] An inquiry into the question whether the expedited procedures should apply to an intended act will be as brief and informal as the nature of the case permits. The Tribunal will ordinarily expect to determine the case upon documentary evidence (including maps and video evidence if available) supplemented, if appropriate by a site visit, at which oral evidence may be taken from parties to the inquiry.

8. [4] The Tribunal will ordinarily be constituted by one member for the purpose of the inquiry.

8. [5] The Tribunal will take all reasonable steps to conduct the inquiry and make a determination within a period of two months.

8. [6] The inquiry may be conducted in conjunction with any other inquiry being conducted under the Act in relation to native title issues in the area in question.

8. [7] The Tribunal may dismiss an objection to the expedited procedure if the Tribunal is satisfied that the objection is frivolous or vexatious or the applicant cannot make out a prima facie case. If any party contends that this is the case, it must give notice to the applicant before the preliminary conference, and the issues relevant to that question will be dealt with at the preliminary conference.

8. [8] Where the Tribunal dismisses the objection and no other objection is pending it may make a determination that the act is an act attracting the expedited procedure and the government may do the act (s.32(4)).

8. [9] At the conclusion of the inquiry the Tribunal will determine that the act attracts the expedited procedure or that it does not. The determination of the Tribunal will be in writing and will set out in point form the findings of fact upon which it is based and any opinions as to the law which it has applied in arriving at the determination (ss. [162] and 164).

8. [10] If the Tribunal makes a determination that the act is an act attracting the expedited procedure it will give a copy of the determination to the parties forthwith.

8. [11] If the Tribunal makes a determination that the act is not an act attracting the expedited procedure the Tribunal will:

8.11. [1] give a copy of the determination to the parties forthwith;

8.11. [2] at the same time, deliver to the Government party and any grantee party a request that they negotiate in good faith with the native title parties with a view to obtaining their agreement to:

(i) the doing of the act; or

(ii) the doing of the act subject to conditions to be complied with by any of the parties (s.32(5)(a));

8.11. [3] make an offer in writing to all parties to mediate to assist in obtaining their agreement (s.32(5)(b));

8.11. [4] specify in the offer a date at which or after which a mediation conference can be convened if the offer is accepted. The specification is not binding upon the parties.

9. Request for Mediation where no Expedited Procedure Notified (Section 31(2))

9. [1] Where a notice given under s. [29] by a Government party does not include a statement that the act attracts the expedited procedure then any of the negotiation parties may request the Tribunal to mediate among them to assist in obtaining their agreement.

9. [2] The request to mediate should identify the negotiation parties and the principle issues in respect of which the mediation is sought.

10. Mediation amongst the Negotiating Parties

10. [1] The following mediation procedures are to be followed where:

10.1. [1] the government party has not asserted that the proposed act attracts the expedited procedures and any of the negotiation parties requests the Tribunal to mediate amongst them to assist in obtaining their agreement; or

10.1. [2] the Tribunal has determined that the proposed act is not an act attracting the expedited procedure and the negotiation parties have accepted the Tribunal's offer to mediate amongst them.

10. [2] The President of the Tribunal will assign a member or officer of the Tribunal to conduct the mediation.

10. [3] The Tribunal in the mediation process will generally endeavour to apply interests-based negotiation which involves:

(i) parties identifying their own and the other parties interests relevant to the application;

(ii) parties thinking about a variety of options for resolution of the application before deciding what to do;

(iii) parties considering the options against some acceptable standard of fairness or reasonableness.

10. [4] The objective of the process is to induce each party to focus on the dispute as a common problem to be solved rather than to focus on the other parties and their respective positions.

10. [5] The Tribunal accepts that the concepts associated with interests-based negotiation may not necessarily transplant into the cultural context of some parties. It will be open to apply different or modified approaches to take account of such circumstances.

10. [6] The mediation must, so far as practicable, involve persons who have authority to make decisions about any proposed agreement. The Tribunal accepts that the conference process may have to allow time for traditional methods of decision-making by Aboriginal people in relation to any proposed agreement and may involve more than one meeting for that purpose.

10. [7] The mediation conference process may involve more than one meeting at different times and places. Meetings may be between the mediator and all the parties together. Meetings may also be between the mediator and one or more parties separately or privately, and such meetings may be before or after any full conference sessions.

10. [8] The mediation conference will usually include a general discussion between the mediator and the parties together about the procedures which should be followed.

10. [9] Such discussion may include the extent to which the proceedings should be treated as confidential. It is recognised that in a mediation affecting a large group or community, or in which there is significant public interests, it may not be possible or desirable to maintain the degree of confidentiality usual in private or commercial mediation. However some restraint is often desirable in order to build trust and encourage free discussion between the parties.

10. [10] Generally it is not helpful to the mediation process for parties to be concurrently debating the issues between them in the public media and it is desirable that while the mediation is in progress they should refrain from making statements to the media except in circumstances agreed with the mediator and the other parties.

10. [11] It is desirable that parties should feel free to explore and discuss issues and propose or respond to suggested settlements without fear that what they say may be used against them. Except where otherwise indicated or where an agreement is made proposals and statements made in the course of the mediation are to be taken as made without prejudice. The Native Title Act provides that, unless the parties otherwise agree, in proceedings before the Federal Court and in subsequent hearings in the Tribunal, evidence may not be given, and statements may not be made, concerning any words spoken or acts done at a mediation conference (s.72(3)).

10. [12] Each party may, if it wishes, have confidential discussions with the mediator in the absence of other parties so that interests or concerns which it wishes to have identified but does not wish disclosed at that point, or at all, can be discussed. Where appropriate, this may involve meetings between the mediator and the Aboriginal claimants, or other parties, at a place or places within the area the subject of the claim. As noted in 10.7, such meetings may be before or after any full conference sessions.

10. [13] The conference will usually include at an early state a session in which parties explain their respective interests to each other -- i.e. what they each hope to achieve by any agreed resolution of the application. While it is recognised that in some circumstances or on some points parties may need to speak through lawyers or other representatives, their personal participation in discussion is encouraged to the greatest extent possible. With the help of advisers if required, they may put forward their various options as suggestions to be explored rather than as positions to be adopted. They may also indicate ways of judging the fairness or legitimacy of the various options.

10. [14] During a mediation session, parties may break off to confer among themselves or with advisers or privately with the mediator. Advisers should be open to the possibility that parties may seek, or may agree, to engage in face-to-face discussion without anybody else present or with only the mediator present. Such discussion will be without prejudice.

10. [15] The Presiding Member may in his or her discretion request submissions from the parties about:

10.15. [1] The effect of the proposed act on:

(i) any native title rights and interests;

(ii) the way of life, culture and traditions of any of the native title parties; and

(iii) the development of the social, cultural and economic structures of any of those parties; and

(iv) the freedom of access by any of those parties to the lands or waters concerned and their freedom to carry
out rights, ceremonies or other activities of cultural significance on the lands or waters in accordance with their tradition; and

(v) any area or site on the land or waters concerned, of particular significance to the native title parties in
accordance with their traditions; and

(vi) the natural environment of the land or waters concerned.

10.15. [2] the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned;

10.15. [3] the economic or other significance of the proposed act to Australia and to the State or Territory concerned;

10.15. [4] any public interest in the proposed act proceeding;

10.15. [5] any other matter considered by the parties to be relevant to the question whether the act should proceed including:

(i) the prospect of the success of the native title claim;

(ii) the impact on the grantee party if the act is not done;

(iii) the impact on local employment and the local economy of the proposed act.

10. [16] The Presiding Member may ask the native title parties to include the conditions (if any) upon which they would be prepared to agree to the act being done.

10. [17] The Presiding Member, as mediator, may if it seems helpful, prepare a draft proposal for criticism and decision but whether this is done will depend upon the progress of the mediation.

10. [18] If at any time during the mediation process the Tribunal member conducting the mediation is satisfied that there is no reasonable likelihood that the parties will reach agreement, the Tribunal member may conclude the Tribunal's participation in the mediation process.

10. [19] Unless the negotiating parties otherwise agree, the Presiding Member at a mediation under these proceedings shall not conduct any subsequent inquiry for the purpose of deciding whether or not the act should be done and shall not disclose to any person not involved in the mediation matters raised by any parties in the course of it.

11. Concurrent Mediations

11. [1] A mediation amongst the negotiating parties pursuant to ss. [31] or 32(5)(b) of the Native Title Act may be conducted concurrently with or as an element of a mediation in relation to an application for a native title determination.

12. Where Agreement is Reached

12. [1] Where the negotiation parties reach an agreement for the doing of the act with or without conditions (s.31(1)(b) and s.32(5)) they must provide a copy of the agreement in writing to the Tribunal at the Registry nearest to the Government party or to the Principal Registry.

12. [2] An agreement made pursuant to s.31(1)(b) or s.32(5) takes effect as a contract in accordance with s.41(1).

13. Where Agreement is not Reached and an Application for a Determination is Made under Section 35 and Section 75

13. [1] An application to the Tribunal by a negotiation party for a determination in relation to the proposed act must be in the form prescribed in the Regulations for that class of application (Schedule 1 Form 5).

13. [2] The Tribunal will make available printed forms of application which comply with the requirements of the Regulations.

13. [3] The application must include the information specified in Form 5 of Schedule 1 of the Regulations and be accompanied by a copy of the findings of any other body that has made an assessment of the effect of the proposed act on the natural environment (if any).

13. [4] If the application accords with the prescribed forms and contains the prescribed information and is accompanied by the prescribed documents and the prescribed fee, then the Registrar will accept the application.

13. [5] Upon an application for a determination being accepted by the Registrar, the Registrar will give notice to the other negotiation parties forthwith and will also give notice of a date of a pre-inquiry hearing (ordinarily within 14 days of the notice) which will ordinarily be a short preliminary conference.

13. [6] The Registrar will seek advice from the government party as to any relevant statutory time limits applicable to the doing of the act, particularly with respect to mining legislation so that the timing of the Tribunal's inquiries and decisions can have regard to those limits.

13. [7] In the notice to the parties of the acceptance of the application a copy of the application will be provided to the negotiation parties by the Tribunal.

13. [8] At the preliminary conference and any adjourned conference directions may be given in relation to the conduct and timing of the inquiry including:

(i) issues before the inquiry where they can be agreed;

(ii) the times and places at which and the ways in which evidence shall be taken;

(iii) the lodgement and inspection of documentary evidence to be relied upon by any party;

(iv) the inspection of documents to which the Tribunal proposes to have regard;

(v) arrangements for preparation of a statement of agreed facts and/or agreed documents;

(vi) the lodgment of submissions by the parties including directions as to materials to be included in
submissions with respect to the similar compensable interest test taking into account the criteria under
s.51(3) and s.240;

(vii) whether any part of the inquiry should be held in private and the persons who may be present (s.154(3));

(viii) the taking of evidence for the purpose of the inquiry by a member of the Tribunal or a person authorised by the Tribunal pursuant to s.157(1);

(ix) the use of evidence taken in any other proceedings or the adoption of any report, findings, decision
determination or judgment of any other body (s.146);

(x) the definition of any question of law to be referred to the Federal Court (s.145);

(xi) whether the President should be asked to direct the holding of a conference to help in resolving any
matter that is relevant to the inquiry (s.150).

13.9. [1] Each party will indicate at the preliminary conference the evidence (if any) it intends to rely upon in relation to the factors set out in s. [39] of the Act.

13.9. [2] The parties will be asked to indicate the extent to which the effect of the proposed act in relation to these factors can be agreed.

13. [10] The inquiry to be conducted by the Tribunal may, if the Tribunal considers it appropriate, be done having regard, inter alia, to materials lodged with the Tribunal in relation to the application and such other evidence or information as the Tribunal considers appropriate.

13.10A The Tribunal is obliged to take all reasonable steps to make a determination within 4 months of the application being made in the case of a licence to prospect or explore or within 6 months in any other case (s.36(1)).

13. [11] Having regard to the time limits imposed upon the Tribunal by s. [36] of the Act the inquiry will be as expeditious and informal as the nature of the case permits. The Tribunal will expect to base its determination so far as possible and practicable upon written witness statements, documentary evidence, video evidence (if available) supplemented by short oral evidence and, where appropriate, by a site visit at which oral evidence may also be taken.

13. [12] The member of the Tribunal conducting the inquiry may specify at the preliminary hearing or otherwise, the amount of time available for hearing of evidence in the inquiry. The member may also indicate that having regard to the time limits imposed on the Tribunal, delay in making submissions or failing to adhere to other timetable provisions will not be regarded by the Tribunal as a reason to delay the taking of the next step or the making of the determination as to whether the act might be able to proceed or not.

13. [13] In the event that a native title party seeks the imposition of a condition on the act that compensation should be paid the Tribunal may make a determination that the Act may be done subject to such condition and adjourn the inquiry for a short time to enable the amount of compensation to be determined.