Neate, Graeme --- "Native title: Looking forward through the past" [2009] ALRCRefJl 6; (2009) 93 Australian Law Reform Commission Reform Journal 20

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Native title: Looking forward through the past

By Graeme Neate*

It is more than 16 years since the common law of Australia first recognised native title, and 15 years since national legislation created a scheme for the recognition and protection of native title.

Although law and practice are developing, much has been achieved in a relatively short period. But significant challenges remain if the promise of native title is to be realised for at least some Indigenous Australians and for the broader community.

To assess whether the native title system is achieving its objectives, it is useful to understand a little of the history and context of the scheme, and how it is administered.

Litigation, legislation, litigation, legislation, litigation...

On 3 June 1992 the High Court of Australia delivered judgment in the historic Mabo v Queensland (No 2) case. By majority,¹ the Court ruled that:

the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the Indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.²

The decision was the first time that an Australian court recognised the entitlements of Indigenous people to their traditional lands under their traditional laws. It followed 10 years of legal proceedings³ and attracted considerable controversy.

Although the Mabo judgment concerned an island in the Torres Strait, its implications were national and a national legislative response was appropriate. In December 1993, after long and difficult debates, the Australian Parliament passed the Native Title Act 1993 (Cth) (the NTA).

The NTA was not a complete or final statement of the law and the courts were soon presented with more issues. There are now more than 500 written judgments of the Federal Court dealing with native title issues, in addition to landmark judgments of the High Court and some judgments of other courts and tribunals. The National Native Title Tribunal has made numerous determinations in relation to future act issues brought before it for decision.

Some decisions of the High Court, as well as gaps exposed by experience in administering the NTA, prompted further legislation. The NTA was extensively amended in 1998 and again in 2007.

The scheme for resolving native title claims

The Federal Court has jurisdiction to hear and determine native title applications, and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.⁴ The NTA established the National Native Title Tribunal⁵ with functions that include ‘providing assistance, mediating or conducting a review in accordance with any provision of this Act’.⁶

Once an application is filed in the Federal Court, responsibility for processing or advancing the resolution of the application shifts between the Court and the Tribunal. In broad terms:

• the Tribunal is responsible for registration testing, notifying and mediating claimant applications (under the supervision of the Federal Court); and

• the Court is responsible for deciding questions of fact or law (either as referred to it by the Tribunal or in hearing an application where the parties have not reached a mediated outcome) and making determinations of native title.

The Court refers each application to the Tribunal for mediation as soon as practicable after the Court has settled the party list, unless it considers that mediation will be unnecessary or there is no likelihood of agreement between the parties. In other words, court-ordered mediation is mandated by the NTA.

The legislative scheme clearly favours mediation rather than litigation as the primary means of resolving native title claims. The NTA makes numerous references to mediation in relation to claimant applications,⁷ and various judges have drawn attention to the importance of mediation to the resolution of native title matters.

According to a Full Court of the Federal Court, it is particularly true of native title litigation that the best outcome is one resolved between the parties, rather than one imposed by a court.

Orders resolving native title litigation are usually extremely complex. They usually deal in detail with the entitlements of people who will have an ongoing relationship with each other. Because of these factors, it is preferable that the affected people discuss, and attempt to reach agreement about, those entitlements.⁸

The High Court has also endorsed the desirability of mediated agreements on native title issues.⁹

The NTA lists the matters to be mediated, which are the matters to be included in a determination of native title.¹⁰

If a matter goes to trial, the Federal Court can make a determination that native title exists, but the Court cannot and will not determine all the consequences of such a determination. There is work for the parties to do to make the Court’s orders effective on the ground.¹¹

It is clear from judgments of the High Court¹² and the Preamble to the NTA that, in some parts of Australia, groups of Indigenous people will find it difficult, if not impossible, to demonstrate that their relationship with their traditional country meets the standard of proof required for a determination that native title exists. In some areas where people have maintained their group’s strong traditional connection, few, if any, native title rights and interests will have survived the cumulative effect of various dealings in relation to the land. In other words, as a matter of law, native title has been extinguished even though on the facts native title rights could subsist but for the extinguishment.

In some cases, parties may wish to explore options other than, or in addition to, a determination of native title. Those options might satisfy their interests and hence deal with some or all of the issues that prompted the claim group to make a native title application. These options are known as ‘non-native title’ or ‘non-determination’ outcomes.¹³

The outcomes could include statements of formal recognition of traditional ownership of lands in which native title has been or might have been extinguished, consultation or joint management agreements in relation to the use of traditional lands, and the grant of interests in those lands under state or territory land rights legislation or other legislation.¹⁴

If such other outcomes can be negotiated, at least some of those applications will be withdrawn, or will be resolved by a determination that native title does not exist. That will dispose of the proceeding so far as the Federal Court is concerned, but also lead to a mediated outcome, which gives a measure of substantive satisfaction to the parties.

Consequently, although the mediation of native title applications is focused on matters specified in the NTA, the parties may negotiate about those and other matters leading to creative and flexible solutions that deliver benefits beyond narrowly prescribed ‘native title’ outcomes.

Native title mediation has features that are quite distinct from most other types of mediation.¹⁵

• It often involves scores if not hundreds of parties.
• It usually involves people and/or institutions who have never met, and consequently the Tribunal is involved in developing. relationships for the purposes of mediation.
• It constantly involves reconciling culturally different views of land and waters.
• It does not necessarily commence because of a dispute but by an application for the determination of pre-existing rights that may affect the rights and interests of others. Paradoxically, mediation in these circumstances can precipitate disputes between the native title claim group and others whose rights and interests could be affected by a determination of native title.¹⁶
• It usually takes years before the issues are resolved.¹⁷

Outcomes achieved

Between the commencement of the NTA on 1 January 1994 and 31 December 2008, some 1,797 native title claim applications were made. Of those, 1,283 were finalised, some by determination of native title but about 85% by other means such as discontinuance or amalgamation.

Native title legislation has delivered legal recognition and legally enforceable rights in relation to substantial areas of land and waters throughout Australia. Much of that recognition has been by the consent of the parties. Native title is no longer as controversial or divisive as it was a decade ago. It is part of the legal and social landscape, and many agreements are reached without people proving that they have native title.

The outcomes to date can be summarised in quantitative, qualitative and procedural terms.

Quantitative: At 31 December 2008 there had been 118 Federal Court decisions relating to determinations of native title affecting 146 applications of which:

• 83 are determinations that native title exists over the whole or part of the applications area; and
• 35 are determinations that native title does not exist (most of them in New South Wales).

Those determinations cover some 889,477 km² (or 11.6%) of the landmass of Australia and 27,380km² of sea. Most have been achieved by consent of the parties rather than following a judicial hearing. In addition, at 31 December 2008, 359 Indigenous land use agreements had been registered under the NTA covering some 1,101,467 km² (or 14.3%) of the landmass of Australia and 2,555 km² of sea . Much of that area is not covered by determinations of native title.

The Indigenous groups most likely to establish native title are in remote and very remote areas. Some groups have acquired recognition of their native title in relation to much (if not all) of their traditional lands.

Qualitative: There are various qualitative benefits from native title schemes for the direct beneficiaries and the broader community.

One should not underestimate the social and psychological benefits for a group of Aboriginal people or Torres Strait Islanders of being recognised as the people for a particular area by the Australian legal system and, as a consequence, by the rest of Australia.

This is land where the rights of a specific group have been recognised for the first time in more than 200 years.

Procedural: For some groups, the act of recognition will be the principal outcome and benefit of the native title process. For others, their recognition as native title holders (or at least registered native title claimants) will have additional tangible benefits.

Although native title is not itself a tradeable commodity, and hence has no market value, the relevant legislation confers a range of procedural rights and legal protections. Native title holders can negotiate the terms on which some activities (such as mining) occur or other interests are granted.¹⁸ From those negotiations can flow further recognition, training, employment and other economic opportunities.

In his 2006 judgment at the end of long-running native title litigation, Justice Ron Merkel referred to ‘the desirability of seeing the resolution of native title claims as a means to an end, rather than an end in itself’. As his Honour stated:

Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for Indigenous communities. However, native title can also be seen as a means of Indigenous people participating in a more effective way in the economic, social and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping stone to securing those outcomes but cannot, of itself, secure them.¹⁹

Such statements reflect the trend to see native title within a broader social, economic and legal context, and not just confined to the recognition and exercise of ancient rights grounded in the past.

Critiques of the native title system

Although much has happened since the Mabo (No 2) judgment, native title law and practice are still developing. The NTA and judicial decisions have received mixed assessments.

Despite the specific outcomes achieved and the broader progress made to date, there is no shortage of analysis and criticism of the processes and the potential outcomes.

Politicians, judges and parties have expressed frustration at the costs, delay and technicality of native title processes. They have pointed out that some claimants die before their applications are finalised. Others have criticised the scheme relating to future acts on land where native title exists (or may exist), and the content of some of the negotiated outcomes.

The NTA has been much reviewed. For its first 12 years, a Parliamentary Joint Committee inquired into aspects of its operation. Each year the Aboriginal and Torres Strait Islander Social Justice Commissioner provides a report on the operation of the NTA and its effect on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.

Other reviews have been conducted. Legislative and administrative reforms have followed, or have been prompted by experience of the system or judicial decisions.

Obstacles and opportunities to overcome them

As at 30 September 2008 there were 477 current outstanding claimant applications across Australia, with approximately half referred to the Tribunal for mediation. Many of them were lodged more than five (or even 10) years ago. The Tribunal estimates that on current trends it will take about 30 years to finalise those claims and the claims yet to be lodged.

Steps need to be taken to resolve these claims in more timely and efficient ways.

Among the challenges are finding ways to more efficiently prepare and assess materials in support of claims, as well as to resolve or remove overlapping disputed claims, reduce the number of parties to some claims, and find creative ways to reach broader settlements.

Increasing clarity of the law, greater familiarity with the processes, wide experience in negotiating outcomes and the guidance provided by them, should inform improvements in reaching just and enduring outcomes.

Conclusion

How much has been achieved from the native title scheme?

The answer will depend on who you ask and which parts of Australia you are considering. Some Aboriginal people and Torres Strait Islanders have received a measure of legal recognition of themselves and their traditional lands or waters, or have negotiated suitable agreements about what happens on and to those areas. They may feel satisfied that, after generations of neglect or marginalisation, their people have received such standing and have secured those outcomes.

Others have not benefited, and will not benefit, directly or indirectly from the native title scheme. They may continue to feel marginalised or neglected—both as a group and in relation to their traditional areas over which they have no control. For some Indigenous groups, the operation of the native title scheme, or the concurrent operation of different schemes over the same areas, can bring to the surface historical grievances between Indigenous people or give rise to fresh disputes. In other words, such schemes can lead to as many problems as they solve.

Some non-Indigenous people or entities whose legal rights over land and waters are exercised concurrently with, or subject to, the rights of specific groups of Indigenous people have found that negotiations or arbitrations have led to workable outcomes. Business can proceed, and positive new relationships have been established or existing relationships have been strengthened. Others may consider that the prospect or process of negotiating with Indigenous groups is not worth the effort or the cost. They will take their business elsewhere or amend their proposals to avoid the need for substantive engagement with Indigenous people.

Native title is not a panacea. But it has provided, and will continue to provide, a platform on which many groups of Indigenous Australians can build—drawing on the cultural heritage of their past, and working with governments, industries and local communities, to create a better future.

*Graeme Neate is the President of the National Native Title Tribunal.

Endnotes

1 Mason CJ, Brennan, McHugh, Deane, Toohey and Gaudron JJ; Dawson J dissenting.

2 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15.

3 For a detailed history of the litigation, see BA Keon-Cohen, ‘The Mabo litigation: a personal and procedural account’[2000] MelbULawRw 35; , (2000) 24 Melbourne University Law Review 893-951.

4 Native Title Act 1993 ss 81, 61, 13, 213.

5 Ibid, s 107.

6 Ibid, s 108(1B)(a).

7 Eg. Native Title Act 1993 ss 4, 86A, 86B, 86C, 86D, 86E, 108, 123, 131A, 131B, 136A, 136D, 136G, 136GA, 136GB, 136GC, 136GE, 136H, 138E, 138F, 183.

8 Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16, introductory statement of the Court, per Wilcox, North and Weinberg JJ.

9 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 617 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ.

10 Native Title Act 1993 ss 86A(1), 225.

11 See Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494, 500 [27].

12 See eg, Western Australia v Ward (2002) 213 CLR 1, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422.

13 See Native Title Act 1993 s 86F.

14 See Frazer v Western Australia [2003] FCA 351; (2003) 128 FCR 458 at [24]. For other examples see the National Native Title Tribunal, Annual Report 2003-2004, 62-63.

15 See also Australian Law Reform Commission, Managing Justice, (ALRC 89), 2000, [7.42].

16 L Boulle, 2005, Mediation: Principles, Process, Practice, 2nd edn (2005), 22.

17 An analysis of the 110 claimant applications that had been determined at 30 June 2008 shows that: for the 63 determined by consent, the average time for achieving a determination was 68 months (five years and eight months) and for the 47 litigated determinations, the average time for achieving a determination was 84 months (seven years).

18 See C Sumner, ‘Getting the most out of the future act process’, 2007 at <www.nntt.gov.au/News-andCommunications/Speeches-and-papers/Pages/ Speeches-and-papers-2007.aspx>, (accessed 7 December 2008).

19 Rubibi Community v Western Australia (No 7) [2006] FCA 459, [166].