Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Graham Hiley RFD QC and Dr Ken Levy RFD
31 March 2006
1. This Report has been prepared for the Attorney-General in response to the Terms of Reference for the ‘Review of the claims resolution process in the native title system’. The Report focuses on the process by which native title applications are resolved and examines the role and practices of the National Native Title Tribunal (NNTT) and the Federal Court of Australia. The purpose of the Report is to identify ways to improve the efficiency and effectiveness of the claims resolution process.
2. Chapter 1 outlines the package of six inter-related reforms to the native title system announced by the Attorney-General on 7 September 2005. The package of reforms proposes changes to all key aspects of the native title system. This Review is one element of that package of reforms and aims to consider the role and practices of the Federal Court and NNTT.
3. Chapter 2 sets out the Terms of Reference for this Review. It provides an overview of our interpretation of the Terms of Reference and summarises our discussion with the Attorney-General about the scope of the Terms of Reference. Chapter 2 also explains our interaction with the Steering Committee during the course of the Review.
4. Chapter 3 outlines the consultation strategy for the Review. We consulted with a wide range of relevant organisations and individuals through personal meetings and telephone conferences. Written submissions were invited and received from a broad range of interested persons and groups. Chapter 3 also identifies other reference material that we drew upon in formulating our analysis and reaching our conclusions.
5. Chapter 4 contains our analysis of important aspects of the existing native title system and identifies potential areas for improvement. Chapter 4 contains recommendations aimed at improving the efficiency and effectiveness of parts of the claims resolution process, some of which relate to the practices of the Federal Court and NNTT. Further recommendations are made regarding other participants in the native title system such as State and Territory governments, Native Title Representative Bodies (NTRBs) and third party respondents.
6. One of the key concerns raised during the course of the Review was the effectiveness of NNTT mediation. While mediation by the NNTT can be effective in some cases, many parties expressed dissatisfaction with the timeliness of NNTT mediation and the outcomes achieved through the mediation process. We concluded that a major factor inhibiting the effectiveness of NNTT mediation was the lack of statutory powers for the NNTT, which limit its ability to ensure that parties participate productively in the mediation process. We recommend that the Native Title Act 1993 (Cth) (NTA) be amended to provide additional powers for the NNTT to improve its ability to effectively conduct mediation.
7. A further issue raised with us during the Review was that a matter can currently be referred to Court-annexed mediation while still in mediation with the NNTT. This duplication of mediation can lead to confusion and resource implications for parties. We recommend that mediation should not be carried out by more than one body at the one time. (See paragraphs 4.31 and 4.32 below.)
8. We also consider it would be beneficial for parties to mediation to be obliged to act in good faith and we recommend that the NTA be amended to impose this obligation.
9. There is room for improvement in relation to the communication and coordination between the Court and the NNTT in relation to both particular claims and overall approaches to claims management. We make recommendations strongly encouraging the Court and the NNTT to coordinate their efforts as far as possible to ensure that parties are able to focus their limited resources on resolving the key issues in a particular matter. We recommend increasing informal communication between the Court and NNTT, giving the NNTT a right to appear in certain court proceedings and strengthening the ability of the NNTT to report to the Court and obliging the Court to consider those reports.
10. Overlapping claims and disputes between Indigenous groups can cause serious delays in negotiations towards resolving native title claims. We have identified several suggestions for dealing with overlapping claims. We also recommend amendments to clarify the authorization provisions in the NTA.
11. Another factor preventing parties from reaching negotiated outcomes is uncertainty about the claim and uncertainty about the law. Uncertainty about the claim arises from a lack of clarity in the claim documents about the area and rights claimed and about the identity of the claimants. This uncertainty makes it difficult to identify the correct parties to the claim and the main issues between the parties. We recommend that more details and better particulars be provided by parties at an early stage in proceedings.
12. While many of the main legal principles about native title have now been settled, the law is still being developed in relation to a number of important aspects. We recommend that greater use be made of the provisions in the NTA allowing particular issues of fact and law to be referred to the Court for determination.
13. Connection material is complex and can be costly and time-consuming to prepare. One mechanism to reduce the cost and time required to produce connection material would be to utilize the research services performed by the NNTT. The NNTT member presiding over mediation can request the preparation of a detailed report containing publicly available background material about a particular claim including ethnographic, anthropological and linguistic research. We consider these reports to be an important resource that would assist parties and recommend that they be circulated as widely as possible.
14. In addition to establishing connection, it is necessary to undertake research about the tenure status of the claimed land. Tenure research is required to establish the extent of any extinguishment and identify the areas over which native title could be determined to exist. We recommend that State and Territory governments and NTRBs give priority to conducting tenure research at an early stage.
15. We also recommend that consideration be given to assisting the NNTT to continue to develop a database of current tenure information for use by all parties. This would assist parties to identify the current tenure status of the claimed land as early as possible.
16. It is necessary to consider ways to reduce the backlog of existing native title claimant applications, particularly claims that appear unlikely to proceed to determination. One way to address the backlog is to reduce the number of unregistered claims and claims lodged in response to a future act notice which are primarily aimed at obtaining procedural rights.
17. We recommend that the NTA be amended to require the Court to dismiss future act claims and unregistered claims in certain circumstances.
18. There is a perception that some third party respondents take a disproportionately active role in a claim, despite having only a relatively minor interest. We recommend that consideration be given to limiting the participation of third parties to the extent of their interest and allowing industry bodies to become parties in certain circumstances. We also recommend that applications to remove parties be dealt with by Federal Court registrars where NNTT mediation discloses that the party does not have an interest in the claim.
19. There are potentially a wide range of matters that could be resolved through an inquiry conducted by the NNTT. Examples would include inquiries directed at resolving inter-Indigenous or intra-Indigenous disputes. We recommend a new inquiry function for the NNTT and that the President of the NNTT be empowered to direct the holding of such an inquiry. We also recommend that the Chief Justice be empowered to request the NNTT to conduct an inquiry into a particular issue or matter. We do not make any recommendations for amendments to section 137 of the NTA.
20. Chapter 4 makes other recommendations about amendments to the NTA in relation to authorisation, notification and registration of claims. In addition, we recommend that the Court and parties be encouraged to make greater use of limited evidence and preservation hearings.
21. We also recommend that the Court be encouraged to prepare practice notes setting out its preferred methods for managing native title claims.
22. Chapter 5 considers whether it would be desirable to re-assign functions between the Court and the NNTT. We have formed the view that there is a need for some institutional reform to facilitate more effective ways to resolve native title claims.
23. In the course of the Review, we considered a number of options for institutional reform which are set out in Chapter 5. We have reached different conclusions about which option would lead to the greatest improvement to the efficiency and effectiveness of the native title system.
24. Graham Hiley QC recommends that the Court be given greater flexibility in relation to the management of native title claims, particularly by being able to use various means of alternative dispute resolution (ADR), including the ability to decide when it is appropriate to refer a matter or issue to NNTT mediation.
25. Dr Ken Levy recommends that the current provisions in the NTA requiring the Court to refer matters to NNTT mediation be retained but that the Court be prohibited from conducting mediation while the matter remains with the NNTT.
The full text of this Report and the terms of reference provided by the Commonwealth Attorney-General are available online at the Attorney-General’s website:
<http://www.ag.gov.au/claimsresolutionreview.> .
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/84.html