French, Robert --- "Applying the Native Title Act 1993" [1995] MurdochUeJlLaw 2; (1995) 2(1) Murdoch University Electronic Journal of Law

APPLYING THE NATIVE TITLE ACT 1993

Author:	Robert French President, National Native Title Tribunal
Issue:	Volume 2, Number 1 (April 1995)

INTRODUCTION

The events which led to the enactment of the Native Title Act 1993 were characterised by an historic negotiation process between Aboriginal, Government and other interests. They were also accompanied by fierce debate about the relative roles of Federal and State Governments and the proper balance to be struck between the rights of indigenous peoples and the rights and interests of non-Aboriginal Australia. Concerns were and have continued to be expressed by representatives of the mining industry about uncertainties said to have been generated by the common law and the Act. This paper gives a brief overview of the operation of the National Native Title Tribunal in carrying out its functions under the Native Title Act over the last 12 months. For those in n need of a brief refresher course, I will set out the salient features of the Mabo litigation and the elements of common law native title.

A POTTED OVERVIEW OF THE COMMON LAW OF NATIVE TITLE

The Mabo litigation which resulted in the enunciation of a common law doctrine- of native title applicable in Australia, was a claim by the Meriam People of the Murray Islands, off the coast of Queensland. They sought a declaration that they were entitle to the Islands as owners, possessors and occupiers or as persons entitled to use and enjoy them. The litigation resulted in declarations being made by the High Court that:

1.  The Meriam People are entitled as against the whole world to possession, occupation, use and enjoyment of the land of the Murray Islands.

2.  The title of the Meriam People is subject to the power of the Parliament of Queensland and the power of the Governor-in-Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.

Certain parts of the land where it was held that native title had been extinguished were excluded from the declarations.

The principal chain of reasoning as set out in the judgment of Brennan J (Mason CJ and McHugh J concurring) was as follows:

1.  The chief question was whether the annexation of the Murray Islands to the Colony of Queensland vested in the Crown absolute ownership of all land in the Murray Islands in such a way as to extinguish any pre-existing native title.

2.  The acquisition of territory by the Crown is not a matter which could be challenged in the Courts of Australia.

3.  The means of acquisition of territory under international law include occupation of territory which is terra nullius in the primary sense of uninhabited and in the secondary sense, of inhabited by backward peoples.

4.  The common law must be consistent with international law in providing the rules to apply in an acquired territory.

5.  The common law of England applied to the Murray Islands upon their annexation.

6.  One of the rules of the common law was that Crown ownership existed in the lands of an acquired territory which had no occupants or whose occupants had no settled law (terra nullius).

7.  As a matter of fact, the indigenous inhabitants of Australia had a subtle and elaborate system of rules adapted to the country in which they led their lives and providing a stable order of society remarkably free from vagaries of personal whim and influence.

8.  The common law doctrine of Crown ownership of acquired territory could not therefore apply in Australia as Australia was not terra nullius.

9.  Upon annexation of the Murray Islands the Crown acquired sovereignty. Sovereignty is not the same as beneficial ownership.

10.  The grant of interest in land to be held from the Crown under the common law doctrine of tenure requires the assumption of the existence of a radical title in the Crown.

11.  The Crown's radical title is not beneficial ownership.

12.  Land in the acquired territory could be subject to rights and interests recognised by indigenous law unless and until the Crown exercises sovereign power to appropriate Crown ownership.

In summary, Brennan J found:

"...the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights an d interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedents rights and interests thus constitute a burden on the radical title of the Crown." (at 57)

As to the content of native title, his Honour described it thus:

"The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants." (at 57)

There are some general propositions about native title which can be extracted from the majority judgment:

1. Traditional title to land of a clan or group may remain in existence where the clan or group continue to acknowledge the laws and observe the customs by which its traditional connection to the land has been maintained. The common law can identify and p protect the rights and interests to which the traditional laws and customs give rise.

2. Native title can be lost by abandonment of traditional laws and customs and cannot be revived. The radical title then becomes a full beneficial title.

3. Native title may be protected by appropriate legal or equitable remedies.

4. The incidents of native title are determined by the traditional laws and customs from which it is derived.

5. Traditional laws and customs may change and the rights and interests of the members of the group among themselves change accordingly.

6. Rights and interests constituting native title are inalienable except in accordance with traditional laws and customs.

7. Native title may be surrendered to the Crown.

8. Exclusive occupation of the land is not necessary for the survival of native title. Whether some continuing physical connection is necessary may be an open question.

9. Native title may be lost by extinguishment in the exercise of the Crown's sovereign power whether by legislative or executive action. Once extinguished it cannot be revived. Extinguishment requires the demonstration of a plain and clear intention to ex extinguish or impair native title and may be evidenced by inconsistency with the continuance of native title.

10. Freehold grants extinguish native title as do some leasehold grants. It is an unresolved question whether all leasehold grants will extinguish native title.

The Mabo decision has left doubt about the survival of native title in land subject to leasehold interests especially in relation to leases which make allowance for traditional Aboriginal usage of the land. The approach taken by Brennan J would seem to suggest that any leasehold interest, whether it has reservations or not, would extinguish native title. That is not, however, consistent with the approach taken by Deane and Gaudron JJ who allow for the possibility of non-extinguishment according to the terms of the lease in question. That approach is reflected in the judgment of t he Full Court of the Federal Court in Pareroulba v. Tickner [1993] FCA 465; (1993) 117 ALR 206, where it was said:

"...the extent to which native title over land may co-exist with leasehold tenure is not a question fully explored in Mabo (No. 2). Much may depend on the nature and extent of the leasehold estate (eg a monthly tenancy or lease for 99 years) and inconsistency, if any, between native title and the lessor's reversionary interest." (at 214)

THE FUNCTION OF THE NATIONAL NATIVE TITLE TRIBUNAL

The principal purpose of the Native Title Act 1993 is to provide a mechanism for recognition and protection of native title, for validation of past acts which may have been invalid because of their discriminatory impact on native title and for compensation on.

The Tribunal is established under the Act to process and make determinations about native title or compensation where applications are unopposed or where the parties reach agreement. It also has a role as an arbitral body with respect to future act determinations if no State or Territory arbitral body has been established in the State or Territory where the future act is proposed to be done.

The Tribunal is an administrative body, it is not a court. If an application is opposed and parties do not reach agreement, then the applications must be referred to the Federal Court. If an agreement is able to be reached about a determination of native title or an application is unopposed, then the Tribunal is required to hold an inquiry to ensure that the proposed determination is appropriate and within its powers. If consensual or unopposed determinations are made then the determination must be registered in the Federal Court and is subject to review.

Core functions of the Registrar and Tribunal with respect to applications are:

1. Screening for acceptance. 2. Notification to interested parties. 3. Registration of parties. 4. Mediation of opposed applications. 5. Inquiries before determinations upon unopposed applications or where agreement has been reached.

THE FIRST YEAR OF OPERATION

A year has elapsed since the Act was passed and the Tribunal established. In that time the Tribunal has received 109 applications. Fifty four have sought determinations that native title exists. Fifty two are non-claimant applications seeking determinations ns that native title does not exist. Two are compensation applications. Twelve of the native title claims have been accepted, two rejected and others referred by the Registrar to a Presidential Member and submissions invited from applicants to show cause why their applications should be accepted. There have so far been no applications for native title determinations which are unopposed and I do not expect that any of the applications presently before the Tribunal will be unopposed. Eight of the applications ns accepted were referred to mediation conferences last year. Of those, three have failed to reach any agreement and have been referred to the Federal Court. To date, the Tribunal has not been able to make a determination in any case that native title exists . I do not expect any unopposed or agreed determinations of that kind in the near future. There are too many unresolved legal issues particularly on the interaction between leasehold and like interests and the survival of native title. No State or Territory government has so far indicated a willingness to accept that native title can co-exist with leasehold interests even where such interests include specific provisions protecting rights of access to and use of the land by Aboriginal people.

This issue relates not only to the effects of current interests but also interests which may have been granted in the past. As historical tenure searches are showing, very large tracts of Australia have been the subject of pastoral lease grants over the last 100 years or so. The effect of these grants on native title at the time must be considered for when extinguished, native title cannot be revived.

Test case rulings from the Tribunal and the Court are imminent in relation to past and current pastoral leases. But whatever the outcome of those rulings, it can be expected that they will be appealed under the Act or by way of judicial review to the Federal Court and ultimately to the High Court. I would expect it will take 18 months to 2 years to finally resolve some of these issues.

In the area of non-claimant applications, progress has been greater. Of the 52 non-claimant applications lodged to 23 January, 27 have been accepted, 4 determined, 3 dismissed, 3 withdrawn and 6 adjourned. The inquiry process in relation to non-claimant a applications has been comparatively quick and informal. Typically, inquiries have not taken more than half a day. The adjournment of non-claimant inquiries has been used as a device in cases where the applicant's concern is to ensure that a proposed future act is valid. As interested Aboriginal groups may not have been able to mount a responding claim for native title within the two month period required by the Act. Typically, the Aboriginal group may have no objection to the particular development or use proposed, but does not wish a determination to be made that native title does not exist. If the non-claimant application is adjourned at the inquiry stage, then so long as it remains on foot a future act on the land is valid, the question of native title remains open as does the possible right of the native title holders (if any) to claim compensation from the relevant government in the event that the future act impairs or extinguishes their title.

The Tribunal has in the first year or so carried out extensive consultation with a wide range of user groups including Aboriginal organisations, industry bodies, and State, Territory and Local governments. A system of State and Territory liaison committee s has been established as well as a national committee. Aboriginal representative bodies, Chambers of Mines, farmers and pastoralists, forestry and fisheries organisations, governments, local governments and others have participated in meetings of these committees. There have been two rounds of such meetings, one in June and one in December. They have proved a valuable source of information and feedback about practical aspects of the Tribunal's procedures and operations. They have provided a sounding boar d against which the Tribunal has tested proposed procedures and guidelines relating to the acceptance of applications. A set of draft guidelines for the right to negotiate process was circulated last year. It has recently been revised to take account of s suggestions from both the Cape York Land Council and the Australian Mining Industry Council and, subject to further comment from other members and Case Managers, will be released shortly. It is expected, of course, that the role of the Tribunal as an arbitral body will be very limited given the establishment of various State processes. But the procedures we have prepared may be of use to others as well as to ourselves.

The consultation process will continue as I expect a third round of meetings to be held in June to consider, among other things, the practical implications of the High Court's decision in relation to the constitutional challenge. I should say at this point t, that while Aboriginal representative bodies have participated in the work of the liaison committees, there is a need for a more systematic and comprehensive approach to the consultation of Aboriginal interests. A consultation system is presently being established by the Tribunal's Community Liaison Section and Research Section.

The first year of operation has highlighted the importance of informing people generally and those affected by specific applications about the nature of the Tribunal process. We have developed a community liaison policy which involves members and officers of the Tribunal talking to various community and interest groups and when an application has been accepted going to the area affected to explain some of the practical implications to the public and to persons who may become parties. This process can include such things as setting up shopping centre information booths, as well as meeting with the relevant local government councillors and other individuals or groups with an interest. There is still a lot of misunderstanding of the role of the Tribunal among Aboriginal and non-Aboriginal Australians. The word "Tribunal" and my office as a judge, can create the false impression that the Tribunal makes binding determinations about the existence of native title. It is important to show applicants and others that at they can have a sense of ownership of the process of resolving disputed claims and that the Tribunal is not in a position to make any determination which is not agreed to by all parties, which invariably include State and Territory governments.

The experience of the past year has indicated that the Tribunal can and should take a more proactive approach to assisting applicants in defining their claimed areas in a way that can be related to non-Aboriginal land use information systems. The Tribunal has, with the co-operation of various State and Territory governments, produced a set of specifications for the description of land covered by claims. Aboriginal people asserting their rights to traditional country do not necessarily approach that task with the mental image of a cadastral map. This is an area of interaction and tension between Aboriginal and non-Aboriginal practice.

The Tribunal has adopted an "Assistance to Applicant's Policy" under which it will carry out current and historic land tenure searches prior to lodgment of applications where it is necessary to do so to assist in the definition of the claim boundaries. The e ability to carry out historical land tenure searches will depend upon the cost and time estimates provided by relevant government agencies.

The time taken for dealing with applications from lodgment to acceptance has been affected by the time taken to carry out historical land tenure searches, the complexity of some of those histories and the legal issues which they may throw up and which can affect the acceptance process.

The acceptance process has proven to be the point of greatest legal sensitivity. Three judicial review applications have been lodged so far to challenge particular acceptances. In the Kununurra-Keep River National Park claim, the acceptance decision is under challenge by both the State of Western Australia and the Northern Territory in separate judicial review applications. The acceptance decision in that case was taken on 26 May 1994. The recent acceptance of a claim over an area in the West Pilbara region is also the subject of a judicial review application by the State of Western Australia.

In the case of the Kununurra-Keep River National Park native title determination application, acceptance, notification, joinder of parties and a mediation conference have all taken place and the substantive application was referred to the Federal Court a few days ago. In the meantime, the trial of the judicial review proceedings is listed for 27 March 1995 on preliminary issues relating to the test for acceptance. Although the Tribunal process was not what I would call short, it was a lot shorter than the litigation challenging the acceptance thus far. I should add that in those proceedings and as a general rule, the Tribunal will not take any position on the rights or wrongs of the acceptance decision. It will submit to whatever judgment the Court makes.

The sensitivity of acceptance decisions relates in part to the perceived importance of registration as a native title claimant under the Act. It may be that the consequences of such registration have been overstated. Any registered claimant seeking to restrain train a development or grant of some interest contrary to the Act, will have to show that the proposed act is a future act. That is to say it will have to be demonstrated that the act, if valid, would affect native title. In the ordinary course, at the st age of obtaining an interlocutory injunction, a serious case would have to be shown for the existence of native title. And that may form a basis for injunctive relief with or without registration as a claimant. An outline of the Tribunal's approach to the acceptance of applications is set out below and reference made to a recent ruling highlighting an inconsistency in the Act relating to the registration of claims.

Experience of the mediation process so & has indicated that if it is to be effective it must take account of the cultural concerns, resource limitations and decision-making processes of Aboriginal people as well as those of other parties. A more detailed account of experiences in relation to the mediation process is set out below.

The present membership of the Tribunal comprises six Presidential Members and four non-Presidential Members. The Tribunal's Principal Registry is located in Perth. There are five Case Managers, a Community Liaison Section, an Anthropological Research Section and a Legal Research Section. The present workload of the Case Managers is stretching them to capacity and additional Case Managers are being appointed within the next few weeks by the Tribunal.

THE ACCEPTANCE PROCESS

The Tribunal has issued an interim ruling in connection with an application by the Waanyi people in Queensland about the acceptance process for which s.63 of the Act provides. The ruling is summarised in the following conclusions which were set out at the end of it:

1.  The Tribunal is an administrative body. Its Members and the Registrar of Native Title perform administrative functions when they make decisions under the Act.

2.  In construing the Act the Members and the Registrar must apply the same rules as would be applicable in a court of law.

3.  Section 63 is to be construed according to the ordinary meaning of its words and having regard to the underlying purpose of the Act.

4.  The Registrar must accept an application which complies with the formal requirements of s.62 unless of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out.

5.  A claim prima facie cannot be made out if at first sight or as a matter of first impression it could not succeed.

6.  The applicants are not obliged to lodge evidence in support of the application to make out a prima facie case.

7.  The Registrar may, but is not obliged to, make inquiries or receive information to determine whether it can be said at the outset that a claim could not be made out. These inquiries may include land tenure and land tenure history searches and receiving g advice on the plausibility of a claim from an anthropological perspective.

8.  The Presidential Member to whom an application is referred by the Registrar will apply the same test as the Registrar applies under para.63(1)(a) in deciding whether or not he or she is of the same opinion as the Registrar. The Presidential Member may , however, find that prima facie a claim cannot be made out on grounds other than or additional to those relied upon by the Registrar.

9.  An applicant who is invited, under s.63(3), to show the Presidential Member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself.

10.  For the purpose of showing that a prima facie claim can be made out it is not necessary for the applicant to show that it has evidence to negative extinguishment by legislative or executive act.

11.  The Presidential Member may have regard to evidence of extinguishing events in determining whether a prima facie claim can be made out.

12.  The Presidential Member in deciding whether a prima facie claim can be made out can form a concluded view on a question of law which, if decided one way would be fatal to the application.

13.  The issues to be addressed by the Presidential Member in deciding whether a prima facie claim can be made out are not limited to those upon which the Registrar formed the opinion that prima facie a claim could not be made out.

These conclusions are not uncontroversial. There are those who contend that the Registrar is obliged to undertake a full investigation of the land tenure history of the area under claim before considering it for acceptance. Other parties say that the Registrar is not authorised to look beyond the application and supporting documents. On this view, no inquiry should be undertaken. The application should be accepted unless, on the face of the papers lodged there is some fatal flaw. The ruling and the Tribunal's Procedures take a middle line whereby the Registrar, as a matter of discretion can undertake inquiries including land tenure history searches. Where the cost and time for such searches is acceptable, they are being carried out for they go to the question whether prima facie the claim can succeed as well as to the definition of its boundaries.

The sensitivity that attends the acceptance process arises because under present Tribunal procedures an application is not entered on the Register of Native Title Claims unless and until it has been accepted. There is a view, that the entry on the Register r of Native Title Claims should be made at the time at which the application is given to the Registrar, that is before acceptance. This is based upon s.190 of the Act which is, on the face of it, inconsistent with the provisions of s.66 in this respect.

In a ruling published on 6 February 1995, Olney J, sitting as a Member of the Tribunal, in a future act determination application, expressed support for the view that registration is a consequence of lodgment, not acceptance. A consequence of this approach h, which is certainly open on the legislation, is that an application given to the Registrar, whether or not complete, whether or not frivolous or vexatious and whether or not prima facie it could be made out, would have to be registered, the question of acceptance following upon registration. The claimants in such case are thereby admitted to standing as native title parties for the purposes of the right to negotiate system.  There are two views open on the question because the provisions of the Act in t his respect are inconsistent. In the end, the doubt can only be resolved legislatively. These results are qualified by my earlier observation about the significance of registration which, as I have said, is probably overstated.

The acceptance process is generating some important test cases for the Tribunal. I do not wish to comment on them further at this stage beyond reiterating the importance of resolving some of the outstanding legal issues which may be achieved in part by appeals or judicial review in relation to those rulings.

THE MEDIATION PROCESS

The mediation of opposed native title determination applications is an important part of the Tribunal's functions. Its statutory basis is found in s72(1) of the Act which requires the President to direct the holding of a conference of parties or represent atives to help in resolving an application which is opposed. Within this general framework there is room for flexibility.

The relevant primary meaning of the word "conference" is a formal meeting for consultation or discussion. In the context of the Native Title Act this probably requires the convening of some form of plenary meeting. The plenary meeting does not require the physical presence of all parties and may involve the participation of representatives in lieu of the parties themselves. It may, however, be continued through various stages of ex parte and bilateral or grouped interest meetings as a way of managing negotiation with a view to an agreed determination. The plenary conference may be preceded by ex parte meetings with applicants and other parties to explain the process and to assist them in defining their objectives by way of preparation for the mediation proper.

Specific factors relevant to the conduct of native title mediations include the following:

1.  The need for applicants to identify their own interests and objectives.

2.  The need for all parties to understand the mediation process and the possibilities for agreement.

3.  Pre-existing tensions between applicants and other parties.

4.  Power imbalances.

5.  Geographical convenience.

1.  Identification by Applicants of their interests and objectives.

Traditional Aboriginal decision-making is non-delegable. Responsibilities for country may vary within the one language group and processes of internal consultation must be respected. Ordinarily, it is desirable that internal consultations within the applicant cant group should be commenced prior to lodgment of the application. The present reality is that in many cases consultation is time consuming and resource intensive and will not have been completed before lodgment or even mediation. Both the Tribunal and representative bodies may be involved in assisting applicants to resolve internal differences and to identify the distribution of their interests as the first element of the mediation process. In some cases this will involve resolution of differences with other Aboriginal language groups who are not applicants.

2.  The need for all parties to understand the mediation process and possibilities for agreement. There is still considerable misunderstanding of the concept of native title and the Tribunal's role in mediation. While some parties such as State Government s and large mining companies have access to sophisticated advice about the nature of the process, this is not true of all. There are many people whose interests may be affected by an application and who need access to an explanation of the process, the limits of native title and the possibilities for agreement. It is particularly important to make clear to such people that the Tribunal cannot make decisions about the existence of native title without their agreement. It is also important they understand t hat Native title does not displace valid existing interests. This is more easily communicated in small group meetings with parties who have common or related interests than in larger plenary sessions. It is also an opportunity to try to establish a relationship onship of trust between parties individually and the Tribunal members and staff. This aspect of the mediation process is closely related to the application specific element of the Tribunal's community liaison policy. It is, however, more focussed. The community liaison policy cannot replace the personal contact between parties and the members and staff of the Tribunal directly involved in the mediation process.

3.  Pre-existing tensions between applicants and other parties. It is the case that the mere lodgment of a native title application can generate tensions between applicants and other parties who are part of the community which is affected by the application on. It may also be the case that the application is part of a larger history of endeavour by aboriginal people to seek recognition for land rights in the area covered by the native title application. For example, there may have been conflicts involving e impact of proposed developments on sacred sites, and these may have attracted the application of aboriginal heritage legislation at State or Commonwealth level. There may have been applications for the grant of land under pre-existing land rights legislation or the acquisition of land for the benefit of local aboriginal groups. Preliminary meetings enable expressions of the hostility generated by the application, and/or its pre-history to be made in a controlled environment which does not involve immediate ate confrontation between the applicants and other parties. It also enables Tribunal staff and members to identify areas of sensitivity and likely personality conflicts which should be recognised in the approach taken to the discussion of possible agreements . Any agreement that is made will have to accommodate the continuing relationship of the parties. A plenary conference without prior ex parte meetings may, in some cases, cause hostility and tension to be expressed in a way that causes the parties to take more rigid stances than might otherwise be the case.

4.  Power imbalance.

>From the perspective of some, if not most, aboriginal applicants, there is a history of significant power imbalance in their dealings with governments, local authorities, pastoralists, miners and other elements of the communities in which they live. These power imbalances can inhibit the ability of applicants to fully and freely express themselves to, or in the presence of, those with whom they have had such relationships in the past. They may also lead to inappropriate and unfair agreements being concluded ed. The Tribunal in this context can be seen as a body divorced from that history (albeit carrying some of the baggage of non-aboriginal power structures). It can use in the early stages a kind of "shuttle diplomacy" to lay the groundwork for direct communications between applicants and others as the mediation progresses. Such direct communication may itself take place in meetings with specific interest groups rather than a plenary conference following immediately upon ex parte meetings.

5. Geographical convenience.

The geographical spread of applicants and other parties in remote area applications may generate practical difficulties in the way of plenary conferences involving the physical attendance of all parties or their representatives. Although this may be overcome by electronic means, it is not always possible. With ex parte meetings and meetings between applicants and specific interest groups there is greater flexibility in the venues at which mediation can proceed than is possible using the plenary conference . Some applications cover areas of land which in themselves may be small, but are widely distributed (see Yorta Yorta clans claim, which covers 150 reserves and parks in Victoria and New South Wales).

STRATEGIES FOR MANAGING MEDIATIONS

1.  The Plenary Conference

It is arguably the case that the plenary conference is a necessary formal element of the commencement of the mediation process contemplated by s.72. The statutory protections that attach to the mediation process may only apply to ex parte and bilateral me meetings which take place after and as an element of the conference process initiated by some form of plenary conference. That is not to preclude the possibility of pre-conference ex parte and even bilateral meetings to ensure that the conference process it self runs more smoothly. The convening of a plenary conference, however, is resource intensive and may be better left until there is an indication arising out of ex parte and/or bilateral meetings that real progress will be made or until it has become clear ar that agreement is unlikely to be reached. In some cases the plenary conference might conclude the mediation process.

2.  Ex parte and Bilateral Meetings

Ex parte meetings prior to or as an element of the conference process can be used to assist parties to identify their interests and objectives, to understand the mediation process, to reduce tension about the process, to mitigate power imbalances, and to make economic use of the time and resources available for mediation. Ex parte meetings may be followed by a series of meetings between applicants and parties having similar or related interests. In complex mediations with a wide range of interest groups, this procedure may be essential to effective management of the process. It also allows for flexibility in the level of discussion in such meetings. For example, negotiations with a state government may be conducted in part between legal representatives of the applicants and the state government. This may be done at or near the land under claim, but may also take place in meeting rooms in the city. This process is also proving useful where the number of parties is not large but there are difficult question s of land use management and co-existence to be resolved. For example, a local authority in an area under claim may want to provide a framework for future development of vacant crown land in which native title is said to subsist. Discussions with the local l authority may include provision for recognition of the traditional association between the applicants and their country, and mechanisms in development decision making, for respecting that traditional association and native title where it exists. Such discussions are best conducted on a bilateral basis. It may also be the case that parties who have specific interests to protect feel more confident of a process in which they have an opportunity to negotiate directly with applicants on a bilateral basis a some point.

3.  Progressive reduction of parties.

In some cases an application will appear to affect the interests of a party or group of parties in a way that may not have been intended by the applicants. It may be possible to reach an agreement that any determination emerging from the process will be e expressed so as not to affect the interests of those parties. Such an agreement may be reflected in an amendment to the application which has the effect that those parties may safely withdraw. This happened in the case of the Wellington claim with respect to the riparian landowners.

4. Group representation of interests.

Where there are a number of parties with similar interests the Tribunal's procedures permit them to be jointly represented in the mediation process. One mechanism for such joint representation is the use of an industry association relevant to their interests . Another mechanism may be the appointment by a large group of a small committee to look after their interests and report back to them from time to time. Alternatively a group of parties with a common interest may engage legal representation to participate pate on their behalf These mechanisms are not intended to displace the right of any individual to represent himself or herself for the whole or any part of the mediation process. Nor does it involve the Tribunal seeking to impose any obligation upon industry try or other groups to provide representation for their constituents. These are simply options which are pointed out to the parties as possibilities to facilitate their efficient participation.

5. Provision of time for consideration of options.

The subject matter of native title does not lend itself to speedy resolution by mediation in the way of commercial disputes. If the process is to provide real opportunities for reaching agreement, it must allow adequate time for the identification of the parties' interests, the development and consideration of options, and their adjustment as part of the negotiation process. This is not just a requirement of applicants. State government advisers must have time to discuss options with the relevant minister (who may be the Premier). Local authority representatives may need to refer matters to a meeting of full council, and perhaps establish some form of working party. Other parties may need to take advice from lawyers about proposed agreements. This all poi to a time frame which will be measured in months, rather than weeks or days. On the other hand the cost and time involved in native title litigation generated by the evidentiary requirements for proving native title indicates that time taken in mediation ion can be time well spent. This may be so even if the outcome is no more than a narrowing of issues and a reduction of the range of parties opposing the application.

6. Broad community support.

Any native title application which affects existing towns or other settled areas will generate a broad community interest and concerns not limited to those whose legal interests are likely to be affected by the application. Recreational users of public la land and waters the subject of a claim will see themselves as having a vital interest in its outcome. Their interests however, may not be sufficient to allow them to be treated as parties to the application. They may of course be represented by state and lo cal governments. Although not parties, the attitudes of community members will impact upon those who have a more direct legal interest. Suspicion or ignorance of the mediation process on the part of such people will probably be communicated to some of those who are parties, and thus hinder the mediation process. It is important therefore that the whole of the community be informed of the role of the Tribunal and the nature of the claim as part of the preparation for mediation. The Tribunal's community liaison policy addresses this issue in so far as it provides for community liaison in relation to specific applications.

7. Partial agreements

The mediation process will only rarely, if ever, resolve all issues in dispute in the early stages. Stepwise narrowing of issues allows for progress which will have benefits in any ultimate litigation even if final and global agreement is unable to be reached. Narrowing of issues involves partial agreements as to matters which are not in dispute. For example, it may be agreed between applicants and a local authority that the applicants do not seek by their claim to hinder or impose any burdens on public a ccess to specified land or waters.

8. Team mediation

In the simplest case, mediation will involve a Tribunal member and a case manager. The case manager will usually have been associated with the particular application from its inception. The case manager will have been the main contact between the applicants and other parties and the Tribunal and will have arranged the preliminary mediation meetings. The case manager may also have been involved in pre-mediation community liaison to explain the process to those affected by it or interested in it. The case m manager will be expected to have built up a good working relationship with the applicants and other parties and to have developed an idea of their various interests and concerns. The member allocated to the mediation will work with the relevant case manage r and can be briefed with information about the various parties and their interests and the kinds of agreements that might be possible. The case manager should arrange through the legal unit for a reasonably complete briefing on the statutory frameworks o f the various interests claimed by parties and their possible interaction with native title. The case manager will also arrange for a background anthropological briefing to be provided by the research unit. The way in which a case manager is to participate e in the mediation meetings will be at the discretion of the presiding member. In some cases, the presiding member may wish to permit interventions by the case manager as an appropriate strategy. In other cases the member may prefer that the case manager not intervene. Whatever their respective roles, the member and case manager should act as a team. In more complex cases, there may be different combinations of more than one member and more than one case manager.

An anthropologist from the staff of the Tribunal, or engaged as a consultant to the Tribunal, may in an appropriate case also be engaged as part of the mediation team. The role of the anthropologist may include providing advice to the mediating member on issues of communication with aboriginal applicants, assisting in the communication process and otherwise providing background information. Whether the anthropologist will participate directly in the mediation will be at the discretion of the presiding member.

These alternatives are not exhaustive. In some cases the Tribunal may use the services of particular experts to aid in the resolution of difficult land use questions. In a mediation involving a mining company, for example, it may be appropriate to engage the services of an environmental scientist or site rehabilitation expert. Where questions of compensation or royalty are concerned, advice might be sought from accountants, valuers and legal experts at critical points in the mediation.

A mediation team that is balanced both culturally and by reference to gender is desirable in principle. However, the composition of the mediation team must be adapted to the needs of the particular case. In cases involving negotiation with both male and f female applicants (as is usually the case) there should be members of both sexes actively involved in the mediation team. It is also desirable where possible to have an aboriginal member of the team. At present the Tribunal has only one aboriginal member a nd no aboriginal case managers. This does not prevent it from engaging the services of an aboriginal person with knowledge of the particular area to assist in negotiation.

In some cases interpreters will be needed to ensure that the applicants and other aboriginal parties are able to fully comprehend the nature of the mediation, and the options that are being discussed. The Tribunal will endeavour to arrange for people to a act as interpreters as required, although it is preferable that applicants provide interpreters of their own choice to assist them.

9. Preparation of options

The Tribunal's experience to date suggests that the parties do not initiate specific options for resolution but are inclined to discuss their interests and possibilities for agreement in fairly general terms. If mediation is to progress, it may be desirable for the Tribunal to develop options in the form of written heads of agreement or draft agreements for consideration. It is necessary to this function that the Tribunal have at hand reliable drafting and printing equipment so that hard copy can be given to parties for consideration on the spot, and amendments can be made progressively. This means that at least one member of the mediation team has to have word processing skills. If not a case manager then a suitably skilled clerical person should form pa part of the team.

10. Notes of proceedings

It is necessary that notes be kept of mediation meetings, identifying the dates, times places and parties present, the issues raised, and any suggestions for resolution that may have been made. The notes should be regarded as confidential to the Tribunal. Ordinarily it will not be necessary to make copies available to the parties. Generally speaking, it is neither necessary nor desirable to provide a transcript service for mediation meetings. Such services are expensive and tend to formalise the proceedings and give people the feeling that everything they say is on record. There should be agreement in the mediation team as to who has the responsibility for being the note-taker. At the end of a meeting, primary notes may be compared with recollections of o other members of the team and such notes as they have made. To assist in the process, the mediator may, specifically, formulate his or her understanding of an interest stated or issue raised by a party so that it may be recorded in those terms and subject to correction on the spot if the party disagrees with the formulation.

11. Media management

It is important that the mediation process be conducted in private so that parties feel free to express themselves without fear of statements made in the course of negotiation appearing in the press or media subsequently. Parties should be encouraged the refore to respect the confidentiality of the negotiation process. Agreements may be made about joint statements to the media on progress. Alternatively, the presiding member may respond to media inquiries concerning progress of the mediation and the way i n which it is being structured and whether it is progressing well or whether difficulties are being experienced. It is important to note that the Tribunal has no power to prevent any party from making any public statement it wishes to in relation to what is said in mediation. However, it is obvious that parties will usually have a common interest in maintaining a degree of confidentiality about it. Where a mediation is progressing well, it may be important to make that fact publicly known. Where a partial agreement has been reached, the parties may agree that it is appropriate to make the agreement public and in the case of an important partial agreement, to conduct some form of signing ceremony.

12. Logistical Arrangements.

It is important that the mediation process be conducted in surroundings of reasonable comfort and convenience for those participating. Where a mediation meeting is to be conducted in a remote locality, it will be the responsibility of the relevant case m manager to ensure that the parties have access to adequate facilities. This, in some cases, may involve the arrangement of camping gear and catering and toilet facilities.

NON - CLAIMANT APPLICATIONS

The experience of the Tribunal in the first year of operation has indicated an optional approach to dealing with non-claimant applications which, in some cases, will satisfy the interests of both the applicant for a determination and Aboriginal interests that have not had sufficient time or resources to organise a native title claim within the time limits specified by the Act. The optional procedure was used by agreement in the non-claimant applications brought by the Commonwealth Pipeline Authority relating to a proposed pipeline from Moombah to Sydney. The rationale for the optional procedure, which involves adjourning the inquiry into a determination on the unopposed non-claimant application, is as follows:

1.  A non-claimant application is one which is made by someone other than a person or persons claiming to hold native title (s.67(1)).

2.  In the ordinary course non-claimant applications are made by persons or bodies seeking to carry out some development or other activity on land and seek a kind of clearance by a determination that native title does not exist on the land.

3.  Where a non-claimant application is made and does not attract a native title determination application by persons claiming to hold native title it is taken to be unopposed for the purposes of s.70 (s.67(4)).

4.  The only dispositive outcomes open under an unopposed non-claimant application are:

(i) a determination that native title does not exist; and

(ii) dismissal of the application.

5.  Where a non-claimant application is taken to be unopposed the Tribunal's power to make a determination that native title does not exist is conditioned upon the requirements that:

(i) the Tribunal is satisfied that the applicant has made out a prima facie case for a determination in those terms; and

(ii) the Tribunal considers the determination to be just and equitable in all the circumstances.

6.  It is the case that some non-claimant applicants simply seek a "clearance" for their proposed future act and are not really concerned to obtain a determination that native title does not exist. Yet the only dispositive outcomes of the application are such a determination or dismissal of the application.

7.  While a non-claimant application remains on foot as an unopposed application, any future act in relation to the area done before the making of any approved determination of native title in the area is valid (s.24(1)(c)).

Where a non-claimant application is unopposed it may be sufficient to convene an inquiry into the question whether a determination should be made, then adjourn the inquiry long enough for the future act to be done. Upon resumption the application may be dismissed by consent or a consent determination made. A practical consideration in connection with the above procedures is that in some cases the non-claimant applicant will have no evidence to show, even on a prima facie basis, that native title has been lost or extinguished. There may be Aboriginal persons who wish to be heard as parties or otherwise to the application or who oppose the making of a determination that native title does not exist. The question is whether the use of the adjournment process in this way is appropriate. If it is not, this may be an area in which the Act should be expressly amended to authorise that option. The benefit of the approach thus outlined is that it permits the carrying out of the relevant future act while preserving the right to compensation of any person who may be entitled to a native title determination (s.24(1)(d)). The inquiry process in such a case, where there are Aboriginal persons in opposition to the applicants, may be associated with a conference under s.  150 of the Act to consider these options.

THE COMING YEAR

The Tribunal, through its research section, has endeavoured to form some estimate of its likely workload in 1995. So far as claimant applications for native title determinations are concerned the rough figures we had indicated there could be up to 125 add additional applications.

With respect to non-claimant applications, the position is unclear although it is likely to be the case that where States or Territories have set up recognised bodies of their own, the non-claimant applications will be brought in those Tribunals. Right to negotiate applications and future act determination applications will, of course, be the exclusive preserve of State and Territory arbitral bodies where those are established.

The coming year promises a sharp increase in workload with a corresponding requirement of additional members and staff. It will generate test cases, both by way of judicial review challenging acceptance of applications, appeals against the non-acceptance of applications and preliminary rulings in proceedings referred to the Federal Court. It should also see a number of non-claimant applications resolved. Mediation processes will be tested and developed in a variety of settings. The outcome of the High Court challenge to the Native Title Act 1993 should be known soon. If the Native Title Act 1993 is found to be invalid, then the discussion in this paper is largely moot. If it is found to be substantially valid, then an opportunity may arise for some steps to be taken to resolve differences between the Commonwealth and the States, particularly Western Australia.

The Tribunal will encourage a more integrated approach to resolution of native title claims by supporting discussion about indigenous land use agreements encompassing not just native title, but heritage and access questions.

There is no rosy dawn of general reconciliation promised for the coming year out of this process. Nevertheless, it can be expected that the growing experience and expertise of Tribunal staff and parties involved in native title claims will help in achieving negotiated outcomes to applications when some of the unresolved legal issues have been decided. The mining industry, which has already accumulated considerable experience in negotiating with Aboriginal and Torres Strait Islander people may well develop a data base of precedents. There is no reason why the industry's representative body should not, in conjunction with Aboriginal representative bodies, develop model agreements for various situations which can be used as tools to speed negotiations in relation to particular applications. I have previously made such a suggestion with a view to overcoming the disjunctivity problem under the right to negotiate regime. Similarly, farming and pastoral bodies could consult with Aboriginal bodies to develop mode l codes of practice in relation to access to pastoral lands.

There is a degree of artificiality in dealing with native title in isolation from heritage and wider land use issues. Native title as recognised at common law has hard edges and corners which are at odds with the Aboriginal view of traditional society. There ere is a need to develop the concept of indigenous land use agreements which can accommodate some of these wider issues. The Tribunal has suggested to the Council for Aboriginal Reconciliation that a national conference be held later this year to discuss such agreements with the benefit of international perspectives. It is hoped that a workshop might be set up to develop at least a model framework agreement relevant to native title and related questions.

The immediate future is uncertain but offers opportunities which can only be limited by our readiness to search for creative solutions to the problem of reconciliation.