Gilmour, Justice John --- "Native Title: Reform and why?" (FCA) [2011] FedJSchol 8

1. It should come as no surprise to see the term ‘native title’ linked with the word ‘reform’ in the title of this paper. Those who practise in native title, or are otherwise involved in the conduct of native title proceedings, would no doubt agree: it is as if the words have a natural affinity.

‘Reform’ in context

2. Today is the nineteenth anniversary of the High Court’s historic decision in Mabo v Queensland (No 2). The Mabo decision transformed the law of property in Australia as it stood prior to 3 June 1992. Since then ‘native title’ and ‘reform’ have been inextricably linked.

3. Parliament’s response to Mabo came towards the end of 1993 with the passage of the Native Title Act 1993 (Cth) (NTA). The nineteenth century philosopher Thomas Carlyle said that “every noble work is at first impossible”. Whether or not the NTA is a noble work, it certainly has noble aspirations. However, the spectre of constitutional impermissibility in the newly enacted NTA emerged early on. As originally enacted, the NTA provided for the registration and enforcement of determinations made by the National Native Title Tribunal (Tribunal), on the existence or otherwise of native title rights, as if they were orders of the Federal Court. In February 1995, the High Court handed down its decision in Brandy v Human Rights and Equal Opportunity Commission. In Brandy, the High Court held that amendments to the Racial Discrimination Act 1975 (Cth) that provided for the registration and enforcement of a determination made by the Human Rights and Equal Opportunity Commission, as if it were an order of the Federal Court, were invalid as they purported to invest judicial power in the Commission. Following this, it was only a matter of time before a court of competent jurisdiction would be asked to consider whether the vesting of power in the Tribunal to make determinations, in a similar manner to the circumstances in Brandy, was an impermissible attempt to vest the judicial power of the Commonwealth in an administrative tribunal.

4. What began was a far reaching political debate about the nature and extent of amendments required to ‘reform’ the NTA, not limited to the constitutional question. The debate gathered momentum after the High Court’s decision in Wik Peoples v Queensland in which the High Court, by majority, held that there was no necessary extinguishment of native title rights by reason of the grant of pastoral leases under the Queensland statutes that were in question. The debate culminated in the enactment of the Native Title Amendment Act 1998 (Cth) which provided for wholesale amendments to the NTA. Henceforth, all native title determination applications are now made to the Federal Court and all native title claims that were lodged with the Tribunal are taken to have been made, as of 30 September 1998, to the Federal Court.
The dust never settles: further reforms to the NTA were enacted in 2007 and, more recently, in 2009. This paper canvasses some of the 2009 reforms to the NTA, provides recent examples of their effect on the conduct of native title proceedings and considers how native title proceedings might be conducted in the future, in light of other recent reforms. A short overview is also provided of some recent case law developments.

The 2009 reforms to the NTA

6. The intention of the Native Title Amendment Act 2009 (Cth) (Amendment Act) as exposed in the Second Reading Speech was to, “contribute to broader, more flexible and quicker negotiated settlements of native title claims. These changes will result in better outcomes for participants in the native title system” and that the “government’s key objective for the native title system is to resolve land use and ownership issues through negotiation, where possible, rather than through litigation”. Furthermore, the Attorney-General added that, “outcomes can extend beyond the bare recognition of legal rights. They can include sustainable benefits that deliver improved economic and social outcomes for generations of traditional owners”. The key objectives of the Amendment Act are to improve the operation of the native title system and the outcomes that parties can achieve in the system. In summary, the provisions of the Amendment Act relevantly allow the Court to:

7. This last reform ensures that the amended evidence rules, including changes designed to assist claimants to give evidence by removing hurdles presented by traditional rules of evidence, may now apply to all native title proceedings, not just those made after 1 January 2009. However, the purpose of this paper is not to traverse the provisions of the Amendment Act in any great detail, but highlight some of the amendments to the NTA that are being used in practice today, and which might be used in future.
The jurisdiction conferred on the Federal Court by the NTA has been extended to enable the making of orders in a native title proceeding that may give effect to terms of an agreement that involve matters other than native title, in either of the following circumstances:

9. Subsections 87(1A), (2), (3), (4), (5) and (6) of the NTA are in these terms:

10. In a paper entitled “The 2009 Amendments to the Native Title Act 1993: The Extended Powers of the Federal Court”, Mansfield J stated that both the Preamble to the NTA and the Attorney-General’s remarks, in the Second Reading Speech, support a broad interpretation of s 87 and s 87A of the NTA, rather than one which is restrictive. I respectfully agree with what Mansfield J has said.

11. In Brown v South Australia at [24] Mansfield J considered the power of the Court under s 87 of the Native Title Act and, amongst other things, observed that:

12. The task of considering whether it appears appropriate to make an order, which the Court is required to undertake under s 87(1A) of the NTA, was outlined by Greenwood J in Wik and Wik Way Native Title Claim Group v State of Queensland in the following terms:

13. It can readily be seen that the 2009 reforms encourage the parties to reach agreement about matters that may be related to a native title proceeding but are not proposed to be included in any determination of a proceeding, regardless of whether or not the proceeding is ultimately resolved by the making of any determination. Section 87(7) of the NTA provides for regulations to be made specifying the kinds of matters that could be given effect to by an order of the Court. No such regulations have yet been made but the terms of agreements that might be contemplated by the parties might include such things as arrangements for future negotiations about Aboriginal heritage protection and protocols, land access and land use. The onus to make agreements is on the parties, rather than the Court. Assistance for the parties to reach agreement is also available through referral of matters to mediation by a Registrar of the Court, or by the Tribunal, or to other forms of assisted dispute resolution as may be ordered.

14. Last week, I had the privilege of giving effect to the first orders to be made under the new provisions in ss 87 and 87A of the NTA involving two proceedings concerning native title claims relating to land and waters located in the Kimberley region of Western Australia. In each of the judgments I delivered, a consent determination of native title was made and each resolved the respective proceeding, except in relation to small areas comprised in the first application: Goonack v State of Western Australia; Barunga v State of Western Australia. For the first time however, simultaneously with the making of orders that there be a determination of native title, in each application the Court also made consent orders that gave effect to the terms of agreements reached, by the principal parties involved, about matters other than native title.

15. With the publishing of the judgments, the terms of both agreements have become a matter of public record. By way of summary, they provide for the State of Western Australia and the prescribed body corporate, which holds the native title on trust for the native title holders, within the Determination Area, as defined, to negotiate in good faith about certain matters other than native title. In broad terms, the matters the subject of the negotiations include:

16. It is worth noting that the above matters are far from being an exhaustive list. Other matters that might well be considered appropriate to include in such agreements could include:

17. Whilst the terms of each of the agreements have been made the subject of the respective orders, the Court has no role in overseeing the conduct of any negotiations. These further negotiations, which the principal parties wish to undertake, will now proceed with certainty and without contributing to further delay in the resolution of the proceedings. This has allowed the final resolution of one of the proceedings and the near to final resolution of the other, in a timelier manner than would otherwise have been the case. By implementing these initiatives, the parties have embraced one of the facilities offered by the 2009 reforms to the NTA. This can only auger well for the approach taken to resolve other native title applications in future.

18. The 2009 reforms to the NTA also amended s 87 to allow the Court to accept and act upon agreed statements of fact between some or all of the parties to a proceeding. Subsections 87(8), (9), (10) and (11) of the NTA are in these terms:

19. The Registrar of the Court is required to give notice of the filing of a statement that has been agreed to by some or all of the parties within 7 days after the statement is filed. In considering whether to make an order under s 87(2), (3), or (5), the Court may accept such a statement that has been agreed to by some but not all of the parties, if those parties include the applicant and the party considered by the Court to be the principal government respondent at the time agreement was reached but, in such circumstances, must take into account any objections that are made by the other parties within 21 days after notice of the filing of a statement of facts is given.

Section 37M of the Federal Court of Australia Act 1976 (Cth)

20. The 2009 reforms to the NTA have some synergy with the operation of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which provides for a codification of the collective duty to resolve disputes the subject of proceedings before the Court. In my view, the enactment of s 37M does no more than reflect, in statutory terms, what parties to proceedings and their representatives have always regarded as their respective obligations.

21. The introduction of Part VB of the Federal Court Act, including s 37M, occurred shortly after the commencement of the Amendment Act. Section 37M concerns the overarching purpose of civil practice and procedure provisions contained in the Federal Court Act. The operation of s 37M and how it affects practitioners’ obligations as well as those of their clients was referred to in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Limited. Rares J, at [16] observed:

22. The parties, their representatives and the Court collectively hold a duty to cooperate effectively to ensure just outcomes. The 2009 reforms can be expected to provide not only for more timely outcomes in the resolution of native title proceedings, but also more innovative ones. Practitioners will note that the Federal Court Act makes no distinction between the jurisdiction conferred on the Court by the NTA and that conferred on the Court by any other statute.

23. Native title proceedings are given no preferential treatment by the Federal Court Act. It is trite that native title proceedings are complex and may involve multiple parties, many witnesses, including experts across a range of disciplines, lengthy trial hearings and diverse and often difficult circumstances for conducting hearings in remote locations. To that list can be added the following additional factors:

24. Anecdotally, the difficulties imposed by limitations on funding are not insignificant, as to which native title practitioners will have some experience. The securing of adequate funding for the conduct of native title trial hearings has often caused practical difficulties for the parties, their representatives and the Court and impacted on the timely conduct of proceedings.

The Federal Court’s way of operating and priority list of native title claims

24. Mediation, either by a member of the Tribunal, or by a Registrar of the Court remains the primary method of progressing cases. Section 86B deals with the referral of matters to mediation and subsections (1) to (4) are in these terms:

25. The Court must still refer all applications made under the NTA to mediation, unless certain circumstances as set out in the NTA apply and, in that regard, the Court may take into account the matters set out therein. The Court may refer an application to mediation by a person or body other than the Tribunal. In deciding whether to refer an application to a particular person or body, the Court may take into account certain matters, such as a person’s qualifications and experience. In relation to cases filed in the Western Australia District Registry, the Court is yet to make an order referring a matter to mediation by an individual or body other than the Tribunal, or a Registrar of the Court.

26. The Court employs a number of mechanisms to monitor on-going progress of native title applications. The Court has a case management system under which Judges of the Court are actively involved in managing a case from beginning to end. Once an application has been filed it will be allocated to a 'provisional docket judge' who monitors the application for the Court. Cases may subsequently be allocated ‘substantively’. The native title priority list of cases is managed as a national list. The progress of all cases is reviewed regularly at regional directions hearings. In Western Australia, there are now 106 native title determination applications awaiting resolution by the Court. Of these, 30 are included on the Court’s native title priority list of cases. The cases included in the priority list are those in which there is general agreement amongst those involved that priority ought to be given to progressing the resolution of the case. Of the 30 priority cases:

Recent case law developments

27. Whilst mediation remains the primary method of progressing native title determination applications it will not always be appropriate to resolve all issues without resort to litigation in part or in whole. Further, not all native title proceedings involve applications for a native title determination. Matters that otherwise come before the Court include:

28. Some recent examples include: Roe v Western Australia (No 2); Roe v Western Australia; FQM Australia Nickel Pty Ltd v Bullen; Dale v State of Western Australia; and James v State of Western Australia. The Court’s paramount role remains – to resolve disputes as a court of record and as a court of law and equity, limited by the jurisdiction conferred upon it by statute.

Roe (No 2)

29. In Roe (No 2), six people applied to the Court for an order to replace Mr Shaw and Mr Roe, as applicant, under s 66B of the NTA. Mr Roe opposed the orders being sought whereas Mr Shaw did not and he sought to be removed as a named applicant. A question arose about whether the persons proposing to become the applicant were all descended from named apical ancestors referred to in the native title claim group description in the application. Also at issue was the construction of the authorisation resolution made by a meeting of the claim group and a number of related issues. Ultimately, in the exercise of the Court’s discretion, it was ordered that Mr Roe and Mr Shaw be replaced as applicant, by three of the six people who applied to the Court for an order to replace them.

Roe v Western Australia

30. Mr Roe sought a grant of leave to appeal from the decision in Roe No 2. Siopis J refused leave for the reasons that the decision at first instance was not attended to with sufficient doubt, the findings then made were open to be made, nor would a substantial injustice arise if the order made under s 66B(2) to replace Mr Roe and Mr Shaw, as applicant, was not set aside. Siopis J reasoned that Mr Roe had no authority to complain on behalf of the native title claim group in circumstances where other persons at an authorisation meeting were appointed to act as the applicant to replace the current applicant.

FQM Australia Nickel Pty Ltd v Bullen

31. In FQM, a Full Court dismissed appeals by a mining company and the State from the decision of Siopis J to grant relief by making a declaration that immediately before the grant of certain mining leases, there was a ‘registered native title claimant’ as that term is defined in s 253 of the NTA. The background to the decision under appeal involved circumstances dating back to 2003 when the State gave notice under s 29 of the NTA of its intention to grant mining leases within the area of the Esperance Nyungars native title claim. One of two persons authorised as the applicant died in 1999 and the other person died in 2005. Subsequently, in 2007, the State granted the tenements under the Mining Act 1978 (WA) purportedly on the basis that s 28(1)(b) of the NTA was satisfied, as immediately prior to the grant there was no native title party, or registered native title claimant, that would be affected by the grant. Amongst other things, the Full Court considered the meaning of the term ‘registered native title claimant’ in the NTA and whether a person continues to be a registered native title claimant after the person has died and pending replacement on the Register of Native Title Claims. The Full Court noted that the applicant alone is empowered to deal with all matters arising in relation to the application under the NTA and that there is a tension between the provisions of the NTA in that s 66B contemplates that the applicant may be replaced by reason of death or incapacity and the fact that registered native title claimants are required under the NTA to negotiate in good faith with other negotiation parties concerning proposed tenement grants. Ultimately the Full Court concluded that s 28(1)(b) continues to apply to an applicant who has died until removal of that person’s name from the Register of Native Title Claims and is consistent with the representative character of native title proceedings and of the purposes of the NTA.

Dale v State of Western Australia

32. In this case, a Full Court dismissed an appeal from the decision of the primary judge to dismiss an application for a determination of native title brought on behalf of the Wong-Goo-TT-OO People. The primary judge dismissed the Wong-Goo-TT-OO People’s application based on the findings of Nicholson J in Daniel v Western Australia and the determination his Honour ultimately made. Having unsuccessfully appealed from that decision, the Wong-Goo-TT-OO People sought to pursue their claim for a determination of native title in relation to areas that were not the subject of Nicholson J’s determination in Daniel. The Full Court held that the application constituted an abuse of process and, as a consequence, the primary judge was correct in making an order for dismissal of the application. Although the Full Court found it unnecessary to resolve the question, it is noteworthy that the judges doubted that the doctrine of issue estoppel has any field of operation in proceedings involving applications for determination of native title. Note that an application seeking special leave to appeal from the decision of the Full Court has been filed in the Registry of the High Court of Australia.

James v State of Western Australia

33. In this case a Full Court held that the grant of certain leases was a ‘past act’ as that term is defined in s 228 of the NTA and that each lease was a category C past act as defined in s 231 of the NTA. The background facts as referred to in the Full Court’s judgment are that the Martu People’s native title determination application was lodged with the Tribunal in 1996 and became a proceeding in this Court in 1998. It was partly determined in 2002. The area within the application that was not determined remains on foot and is in mediation conducted by the Tribunal. A member of the Tribunal considered that it would expedite the reaching of an agreement on any subject matter within the mediation, to refer to the Court a question of fact or law that had arisen and relating to matters the subject of the mediation. The member proceeded to refer the questions to the Court pursuant to s 136D of the NTA and the referral of the questions, as a Special Case, was reserved to a Full Court. The area the subject of the referral was subject to various mining leases and general purpose leases granted under the Mining Act 1978 (WA) before 1 January 1994 but on or after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) commenced, and a mining lease issued pursuant to clause 13 of the agreement scheduled to and ratified by the Western Mining Corporation (Throssell Range) Agreement Act 1985 (WA) during the same period. In relation to each lease the questions of law reserved for consideration were answered, as follows:

Conclusion

38. The reforming zeal, set loose by the transforming nature of the Mabo decision exactly nineteen years ago remains. So too does the obligation to resolve disputes according to law as quickly, inexpensively and as efficiently as may be possible. If we are to embrace the challenges and opportunities of the future the pathways to resolution must continue to be built and existing pathways repaved. Making full use of the opportunities provided by the 2009 reforms to the NTA is but one way to embrace the challenge. For my own part as a member of the Court I look forward to its continuing involvement in the facilitation of the resolution and ultimate conclusion of the native title caseload.
***

The views expressed in this paper are mine and do not represent the views of the Court or any other of its Judges. This paper is part of a presentation made to a Legalwise seminar “Native Title” held in Perth on 3 June 2011. I gratefully acknowledge the assistance of Russell Trott, Deputy District Registrar, Federal Court of Australia, in the preparation of this paper.

[1992] HCA 23; (1992) 175 CLR 1

which came into force on 1 January 1994

ss 166, 167 and 168 NTA (since repealed)

[1995] HCA 10; (1995) 183 CLR 245

[1995] HCA 10, per Deane, Dawson, Gaudron and McHugh JJ, at [20]

as was subsequently found to be the case: Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151 per Burchett J at [155]; Drummond J at [173] – [176]; Cooper J at [187]

[1996] HCA 40; (1996) 187 CLR 1

Toohey J, Gaudron J, Gummow J, Kirby J, in separate decisions

[1996] HCA 40, postscript to the decision of Toohey J (with the concurrence of Gaudron, Gummow and Kirby JJ)

most, but not all, of which came into force on 30 September 1998

s 61(1) NTA

by reason of transitional provisions in Part 3 of Schedule 5 of the Native Title Amendment Act 1998: Bullen v State of Western Australia [1999] FCA 1490, at [26]

Native Title Amendment Act 2007 (Cth); Native Title Amendment (Technical Amendments) Act 2007 (Cth)

Native Title Amendment Act 2009 (Cth)

the majority of which came into force on 18 September 2009

Hon R McClelland, Second Reading Speech, Hansard, House of Representatives, 19 March 2009, pp 3248

Ibid, p 3249

Native Title Amendment Act 2009 (Cth), Information Sheet, Commonwealth Attorney-General’s
Department www.ag.gov.au

s 86B NTA

ss 87(8) and 87A(9) NTA

ss 87(4) and (5) NTA; ss 87A(4) and (5) NTA

which came into force on 1 January 2009

s 214 NTA

ss 87(6) and 87A(6) NTA

ss 87(4) and 87A(4) NTA

ss 87(5) and 87A(5) NTA

“The 2009 Amendments to the Native Title Act 1993: The Extended Powers of the Federal Court”, a paper based on a presentation by Mansfield J to the AIATSIS Conference, 2 June 2010

Ibid, at para 4

[2010] FCA 875

[2009] FCA 789

[2009] FCA 789, at [16]

s 86B NTA

[2011] FCA 514

[2011] FCA 516

i.e. in lieu of the provisions in Subdivision P of the NTA

s 87(8) NTA

s 87(9) NTA

s 87(10) NTA

S 87(11) NTA

[2010] FCA 274

cf. Civil Dispute Resolution Act 2011 (Cth), from which proceedings under the NTA are expressly excluded, at s 16

see for example the introductory comments of Lindgren J in Harrington-Smith v Western Australia (No. 9) [2007] FCA 31; (2007) 238 ALR 1

see for example Harrington-Smith v Western Australia (No 6) [2003] FCA 663

s 86B(1) NTA; the particular circumstances are set out in s 86B(3); the factors to be taken into account are set out at s 86B(4)

s 86B(1) NTA

s 86B(2) NTA

http://www.fedcourt.gov.au/litigants/native/litigants_nt_cases_current.html#list

made pursuant to s 169 NTA

made pursuant to s 190F(1) NTA

eg applications made pursuant to the Judiciary Act 1903 (Cth)

[2011] FCA 102, at [156]

[2011] FCA 421, at [25], [26] and [33]

Ibid, at [40]

Constituted by North, McKerracher and Jagot JJ

[2010] FCA 900

[2011] FCAFC 30, at [15]

Ibid, at [11]

Ibid, at [31] and [37]

constituted by Moore, North and Mansfield JJ

[2003] FCA 666

[2005] FCA 536

[2011] FCAFC 46 at [88]

constituted by Sundberg, Stone and Barker JJ

[2010] FCAFC 77, at [3]

, per French J

Since repealed and replaced by s 94H

“Native Title Litigation – An ADR Free Zone?” a paper presented by Dowsett J at the University of Queensland Law School on 8 April 2010 as part of a course “Mediation Strategies for Native Title Stakeholders” http://www.law.uq.edu.au/documents/e-newsletter/justice-dowsett-paper.pdf

Federal Judicial Scholarship

Gilmour, Justice John --- "Native Title: Reform and why?" (FCA) [2011] FedJSchol 8

Introduction

‘Reform’ in context

The 2009 reforms to the NTA

Section 37M of the Federal Court of Australia Act 1976 (Cth)

The Federal Court’s way of operating and priority list of native title claims

Recent case law developments

Roe (No 2)

Roe v Western Australia

FQM Australia Nickel Pty Ltd v Bullen

Dale v State of Western Australia

James v State of Western Australia

Conclusion