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Editors --- "Parliamentary Joint Committee on Native Title - Digest" [1996] AUIndigLawRpr 25; (1996) 1(1) Australian Indigenous Law Reporter 91

Parliamentary Joint Committee on Native Title

The Parliamentary Joint Committee on Native Title was appointed in March 1994 in accordance with s. 204 of the Native Title Act 1993 (Cth) (`NTA'). The duties of the Parliamentary Joint Committee are set out in s. 206 of the NTA. Section 206 provides:

(a) to consult extensively about the implementation and operation of this Act with:

(i) groups of Aboriginal peoples and Torres Strait Islanders; and

(ii) industry organisations; and

(iii) Commonwealth, State, Territory and local governments; and

(iv) other appropriate persons and bodies; and

(b) to report from time to time to both Houses on the implementation and operation of this Act; and

(c) to examine each annual report that is prepared by the President of the NNTT and of which a copy has been laid before a House, and to report to both Houses on matters:

(i) that appear in, or arise out of, that annual report; and

(ii) to which, in the Parliamentary Joint Committee's opinion, the Parliament's attention should be directed; and

(d) at the end of 2 years after the commencement of this Part, to inquire into and, as soon as practicable after the inquiry has been completed, to report to both Houses on:

(i) the effectiveness of the NNTT; and

(ii) the extent to which there are recognised State/Territory bodies; and

(iii) the appropriateness of powers of delegation exercisable by the Registrar under this Act; and

(iv) the extent of extinguishment or impairment of native title rights and interests as a result of the operation of this Act; and

(v) the operation of the National Aboriginal and Torres Strait Islander Land Fund established under Part 10; and

(vi) the effect of the operation of this Act on land management; and

(e) to inquire into any question in connection with its duties that is referred to it by a House, and to report to that House on that question.

The Committee, in accordance with its duties outlined in this provision, has tabled two reports. A summary follows of each of the two reports:

2. Second Report of the Parliamentary Joint Committee on Native Title: The National Native Title Tribunal
Annual Report 1993-1994 (p. 93).

Parliament of the Commonwealth of Australia

Canberra: Senate Printing Unit, Parliament House, October 1994

The first report of the Parliamentary Joint Committee on native title is largely based on an initial consultation process which took place in August 1994. The Committee has expressed a desire to consult as broadly as possible in its examination of the operation of the NTA.

At the time of the consultations, experience regarding the operation of the NTA was limited, despite nine months having elapsed since the passage of the Act. No complementary State legislation was in force, although legislation in the Northern Territory was operating. The Committee acknowledged that, as a result, the evidence received from consultations as to the implementation of the NTA would be limited.

Evidence from the Sydney, Brisbane, Cairns, Mt Isa and Perth consultations have been recorded by Hansard. As part of the functions under s. 206(a)(iii) of the NTA, the Committee sought to meet with both the New South Wales and Queensland Governments. However, the invitations were declined. On the other hand, the Premier of Western Australia cooperated with the Committee, meeting them on 15 August 1994.

The Committee noted the complex nature of the NTA, the fact that many provisions were amended as a result of negotiations during the passage of the Bill, and the fact that the public is just coming to terms with the concept of native title. It also noted the potential of the public consultations to assist in providing a public education function with regard to native title.

This report, it is stated, is not designed to comment definitively on the issues raised from the consultations.

As a result of the consultations, it became evident that there were concerns relating to the procedures established under the Commonwealth legislation. In addition, the cost and difficulty in compiling land tenure histories, the inaccuracy of some of the maps provided by the National Native Title Tribunal as part of the claim notification procedure, and the notice and response procedures generally were noted as matters of concern raised during the consultation process. In response to these concerns the Committee stated that:

It is important that the notice and response provisions of both State and Commonwealth legislation are sensitive to the needs of Aboriginal people, including their particular decision-making practices. Similarly, all maps relating to applications must be accurate and clear. On a related issue, it has been claimed that access to land tenure histories has been denied to Aboriginal people (Evidence, pp. 315, 316). These matters -- notice, maps and tenure histories -- need to be addressed by Commonwealth, State and Territory governments to ensure that the processing of native title applications complies with the intention of the Act.¹

The consultations also revealed concerns in regard to applications. The National Native Title Tribunal has adopted a "low threshold" test for the acceptance of applications for a determination of claim. Some Aboriginal organisations were not convinced that the acceptance test was being applied as a "low threshold" test. According to the report, concerns have also been expressed by industry groups in relation to the non-claimant applications. In turn, indigenous groups have expressed difficulty in their ability to respond within the two month time-frame, particularly with their lack of resources.

The issue of resources generally was expressed by the Committee to be a matter of concern, and the Committee expressed a desire to be contacted by any person experiencing resource difficulties as a result of the NTA.

Lack of information and the need for education about the Act and the procedures utilised by the NNTT were additional matters which the Committee identified as being problematic. This lack of information is said to exist within both indigenous and non-indigenous communities, despite initiatives of the Aboriginal and Torres Strait Islander Commission and the National Native Title Tribunal aimed at community education.

The unresolved issue regarding the effect of pastoral leases on native title also was raised in the consultations. The Committee noted:

With regard to native title claims over pastoral leases, the Federal Court consideration of the Wik claim will settle some uncertainties. This matter, at present before the Federal Court, will provide a test case for native title applications over pastoral leases in Queensland. Whatever the outcome of claims over pastoral leases, the Committee notes an unfortunate tendency for some pastoral leaseholders since the passage of the Native Title Act 1993 to deny access to Aboriginals.²

The Committee also took the opportunity to outline plans for future consultations. They stated:

... the Committee will continue in the immediate future to hold public hearings and seek consultations in various ways with people who have an interest in native title. Of course, it may not be possible to travel to all relevant areas or to meet everyone who would want to speak to the Committee. Persons who, for any reason, are unable to meet with the Committee should provide their views about native title to the Committee Secretary in writing. Such submissions will be welcome at any time.³

Parliament of the Commonwealth of Australia

Canberra: Senate Printing Unit, Parliament House, March 1995

The second report of the Parliamentary Joint Committee on Native Title represents part of the Committee's function under s. 206(c) of the NTA, which requires it to report on the Annual Report of the President of the National Native Title Tribunal.

The Committee invited submissions in its consideration of the Annual Report.

The acceptance process established by the NTA in relation to claims was noted as being a matter of "considerable comment". Section 62 of the NTA allows a claim to be accepted unless it is frivolous or vexatious or the Registrar is satisfied the prima facie claim cannot be made out. If a claim is refused, it is referred to the President. Justice French has stated that the test to be applied by the President upon referral is whether a prima facie claim can be made out.

The Committee received submissions both requesting tightening of the acceptance test and calling for the acceptance test to remain a low-level screening test.

The Committee noted the need for care in the pre-acceptance stage of the process. Concern had been raised by the Aboriginal and Torres Strait Islander Social Justice Commissioner over pre-acceptance consultations between Tribunal staff and non-claimants. The Committee noted that "care is required to ensure that such pre-acceptance consultations are confined to the securing of information and do not amount to mediation between the parties". [4]

With regard to the acceptance process the Committee made the following comments:

The Tribunal President has confirmed that, in being able to make inquiries concerning an application, those inquiries `may include land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective' (Waanyi application Reasons for Ruling in Relation to Criteria ..., p.32).

Regard should be had for inconvenience caused to applicants in the pre-acceptance process. The development of an application, submission and preparation for mediation is onerous enough; the Tribunal needs to continue to be sensitive to the need to minimise inconvenience to applicants. The Tribunal should have some regard to the cost of presenting an application. Commissioner Dodson has confirmed (Submission No 8, p.8) that the potential cost of the Waanyi claim was estimated at $100 000 at the acceptance phase. Mr Greg McIntyre, a barrister, advised the Committee (Evidence, p.696) that in order for an application to be accepted, highly technical and expert legal advice was needed. The cost of an application, of course, bears no necessary connection to its validity. The Committee agrees with Justice French that the screening function under Section 63 is necessary to discourage hopeless applications.⁵

The issue of maps and description of claim areas continues to be a matter of difficulty. Native title claims have been rejected because they were not described in terms of non-indigenous title. The Committee noted that the Tribunal "... needs to manage sensitively the dual requirement of recognising Aboriginal notions of `country' and the formal description of the land tenure that is subject of the application".⁶

Once claims are accepted under the NTA, notice is given to those who may be affected by a determination in relation to native title. Sections 70 and 139 of the NTA require that if the claim is unopposed, the Tribunal can hold an inquiry into the application and make a determination. However, it can do so only if satisfied that a prima facie case can be made out in the terms claimed and that such a determination would be just and equitable. If an application is opposed, the claim enters a mediation process with no inquiry being held beforehand. The President of the NNTT has proposed an amendment to the NTA to:

... enable an inquiry to be held, on a discretionary basis, at any point after acceptance of the application to determine whether there is a prima facie case and in that context to allow for important points of law which may affect the negotiation process to be referred to the Federal Court (annual report, Appendix 9, p.67; ...).⁷

The Committee received submissions pointing out that a claimant without a prima facie case can get the benefit of the right to negotiate. In response to the proposed amendment the Committee stated that:

While there are benefits in the President's proposed amendment to the Act, it is not without difficulty. Perhaps the most significant issue concerns the concept of mediation. Despite being termed a Tribunal, the NNTT is more accurately described by Justice French as a native title dispute resolution service. The Tribunal assists parties to native title claims to resolve those claims by agreement. However, because Justice French's proposed amendment could open the inquiry process at an earlier stage following acceptance of an application, one of the major benefits of the process envisaged under the Act could be put at risk. That is, the parties would have at least some elements of the claim dealt with in the public inquiry process at an earlier stage rather than in private mediation. This could hazard the chances of an agreed outcome. In his submission (No 8, p.12) Commissioner Dodson endorses the private mediation process:

The adoption of interests-based negotiation by the Tribunal which recognises the possible need for confidentiality and is flexible in the consultation options available to parties is, I believe, a balanced method for dealing with claims.

Nevertheless, it is important to note that the President's proposal would not compel the Tribunal to conduct an early inquiry. Provided that this was the approach taken, and that every attempt was otherwise made to pursue mediation prior to the inquiry stage, the President's proposal could be useful because it would increase the flexibility of the Tribunal's procedures.⁸

The Committee also suggested that the transcripts of public hearings which are part of the mediation process be provided to eligible parties free of charge, when they are made available by the Tribunal.

The Committee went on to conclude that the acceptance process established by the NNTT is consistent with the Act. They added:

There is a need, however, for the Tribunal to ensure that pre-acceptance consultation is confined to questions of a factual nature and does not amount to mediation or negotiation with parties. The Tribunal also needs to continue to be sensitive to the inconvenience that can be caused to applicants in the pre-acceptance process. Regard needs to be paid to the cost of developing applications; the pre-acceptance process should not add to those costs unnecessarily.⁹