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Editors --- "Frazer and Others v State of Western Australia - [2003] - Case Summary" [2003] AUIndigLawRpr 19; (2003) 8(2) Australian Indigenous Law Reporter 25

Court and Tribunal Decisions - Australia

Frazer v State of Western Australia

Federal Court of Australia (French J)

17 April 2003

[2003] FCA 351

Native title — mediation of native title determination applications — role of National Native Title Tribunal in initiation and management of mediation — whether provision of connection evidence antecedent to mediation process — requirement for timely progress of mediation — recognition of resource limitation — need to establish regional priorities — hearing of connection evidence as a substitute for provision of connection reports — referral of questions of fact by NNTT — preservation of evidence — early neutral evaluation of claims

Facts:

The Applicant and the Respondent had been in negotiation about nine native title determination applications in the Central Desert region without the active involvement of the National Native Title Tribunal (‘NNTT’). All of the applications concerned had been referred to the Tribunal for mediation under s 86B of the Native Title Act 1993 (Cth) (‘NTA’). A directions hearing was convened to determine the proper role of the Tribunal in all phases of the establishment and management of the negotiation timetable in the claim.

The Respondent submitted that the NTA, the Federal Court Act 1976 (Cth) and Federal Court Rules do not prevent parties to a mediation from communicating directly with one another. Further, it was submitted that the NNTT has no exclusive statutory right to mediate under the NTA and the absence of the NNTT from negotiations is not crucial to the process of reaching agreement. It was also submitted that negotiations regarding the provision of expert reports and evidentiary material were only a preliminary stage to mediation which did not necessitate the involvement of the NNTT, and further, that the Court should not order the NNTT to become involved in the collection of evidence at any stage.

The NNTT asserted that its role under the Act is the management of the mediation parties and no statutory protection is provided to mediating parties unless the NNTT is involved.

Held:

1. Section 86B(1)–(2) of the NTA mandates the referral of every application for a native title determination to the NNTT for mediation unless the Court orders otherwise [25].

2. The central role of the NNTT in the mediation process is apparent from the mandated terms of referral under s 86B(1) of the NTA and the Federal Court’s ability under div 1B to request progress reports on any mediation from the NNTT. Division 4A does not define the limits of the NNTT’s role [26].

3. The NNTT has the responsibility under s 86B of the NTA to undertake mediation of all aspects of the application relevant to the purposes defined in s 86A [28]. The mediation process includes the provision of connection evidence [27], announcing priorities for a particular region [29] and determining timetables for bilateral discussions [28].

4. In view of delays and a shortage of resources, the Court may hear connection evidence on an early basis in two circumstances. First, if the NNTT refers a question of fact to the Court under s 136D(1) of the NTA for determination under s 86D of the NTA. Second, if the Court directs the hearing and determination of such issues [30].

5. A referral by the NNTT or hearing of a separate issue by the Court may extend to the determination of the native title rights of the applicants. Without a referral from the NNTT, the Court may direct that evidence be taken to preserve evidence from elderly or unwell applicants, or to give added impetus to the mediation process [31].

6. The Court may also direct mediation under the NTA or under its own Act and Rules [31].

Case extract:

French J:

...

The Role of the National Native Title Tribunal in the Mediation Process

24. Prior to the 1998 amendments to the Native Title Act 1993 the role of the NNTT in the mediation of native title claims was set out with economy in s 72 of the Act which, in its substantive provision s 72(1) stated:

“If an application is accepted under s 63 and the Tribunal does not make a determination under s 70 or 71, the President must direct the holding of a conference of the parties or their representatives to help in resolving the matter.”

Other subsections were ancillary to that substantive provision. Section 72(1) was applied by the Tribunal in the development of a process of mediation of claims which contemplated their possible resolution in terms of a native title determination or some other outcome. Other outcomes might range from the discontinuance of the claim to some ‘non-native title’ agreement. The latter category of resolution comprehended statements of formal recognition of traditional ownership of lands in which native title had been or might have been extinguished, consultation or joint management agreements in relation to the use of traditional lands and the grants of interests in those lands under State land rights legislation or otherwise.

25. The 1998 amendments to the Act introduced a far more detailed regime for the mediation of native title claims and equipped the NNTT with coercive powers in relation to that process which previously it had lacked. The Act now mandates the referral of every application for a native title determination to the NNTT for mediation unless the Court were to order otherwise (s 86B(1) and (2)). The purposes of such Court-referred mediation are defined in s 86A of the Act. These purposes in proceedings not involving compensation applications are confined to assisting the parties to reach agreement on some or all of the following matters:

(a) whether native title exists or existed in relation to the area of land or waters covered by the application;

(b) if native title exists or existed in relation to the area of land or waters covered by the application:

(i) who holds or held the native title;
(ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area;
(iii) the nature and extent of any other interests in relation to the area;
(iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);
(v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

26. The central role of the NNTT in the mediation process is apparent from the mandated terms of referral under s 86B(1). This is reinforced by the Federal Court's facility to request the NNTT to provide reports on the progress of any mediation under div 1B. The provisions of div 4A relating to mediation conferences are ancillary to the referral of applications to the NNTT for mediation. They do not define the limits of the NNTT’s role.

27. The provisions of s 86C relating to the cessation of mediation on the application of any party after three months from the start of mediation make clear the parliamentary intention that mediation take place in a timely fashion. There is nothing in the Act which requires the exclusion from the mediation process, of the exchange of information between parties, including connection information, for the purpose of facilitating negotiations. To the extent that the submissions suggest that the provision of connection evidence is outside or antecedent to the mediation process, I do not accept them.

28. The referral under s 86B is a referral to the NNTT and, in my opinion, it has the responsibility, pursuant to that referral, to undertake mediation of all aspects of the application relevant to the purposes defined in s 86A. This includes the development of detailed negotiation protocol, the exchange of information between the parties, the identification of issues to be resolved and times and venues of conferences under the Act in furtherance of the mediation process. In so doing it is quite legitimate that the NNTT and the parties have regard to the resource limitations and other practical constraints under which each of them must operate. It is appropriate that within a particular region timetables may be staggered to reflect priorities within that region. It is legitimate for the protocols and timetables developed to provide for bilateral negotiations between parties with reports back to the NNTT. However, timetables for such bilateral discussions are an element of the mediation process undertaken by the NNTT in the exercise of its statutory function and in respect of which it may be required to report to the Court.

29. It is not open to any party, be it the State or a native title representative body or any other respondent, unilaterally to announce priorities for a particular region. This is an aspect of the mediation process. Any unilateral action by any party to an application which is not acceptable to others may result in a breakdown of the mediation process and its cessation by order of the Court. I emphasise that in so saying, I do not overlook the very substantial resource burdens that the native title process places on all parties. At the same time the Court has a responsibility to ensure that the mediation processes for which the Act provides are applied and applied in a timely fashion.

30. It may be desirable at this point to say something about the provision of connection evidence. The gathering and collation of connection evidence, usually in the form of anthropological reports, and its assessment by the State, appear to be major factors in the delays that are occurring in the mediation of native title claims. There is a question whether, given the time taken in this aspect of the mediation process, it may be desirable that the Court hear important elements of connection evidence from applicants themselves, in order to facilitate the preservation of that evidence, to give applicants an opportunity to tell their story to the Court at an early stage and to facilitate subsequent mediation. This may be done in two ways. One may be by reference of a suitably framed question of fact from the NNTT to the Court under s 136D(1) of the Act for determination by the Court under s 86D. The other may be by the Court directing the hearing and determination of such issues.

31. There is no reason in principle why a referral by the NNTT or the hearing of a separate issue by the Court should not extend to the determination of the native title rights and interests of the applicants in all or part of the land and waters covered by the application. Such hearing and determination may proceed without reference to questions of extinguishment and without the need to undertake prior tenure searches and histories. Absent such a referral from the NNTT the Court itself, in my opinion, may direct that such evidence can be taken either for the limited purpose of the preservation of evidence of applicants who are elderly or unwell or otherwise in order to give some added impetus to the mediation process. It may also be noted that the Court will contemplate directing mediation either under the Act or under its own Act and Rules, involving the use of early neutral evaluation as an aid to mediation which may have regard to connection material or evidence taken or a determination made in the way that I have indicated.

32. The Court is concerned that there be a more systematic and focussed approach to the progression of native title claims than has occurred up to this point. The harsh practical realities of resource limitations on all parties, the fact that some parties are unrepresented, the fact that there are outstanding unresolved and quite difficult intra-indigenous issues, and the fact that many respondents do not have the time or resources to engage directly at all stages of the mediation process, are recognised. However, the somewhat non-specific timetable presently proposed for the Central Desert area is insufficient to satisfy me of the likelihood of the parties being able to reach agreement on facts relevant to any of the matters set out in s 86A(1) or (2) in relation to the claims under consideration.

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