The Role ADR plays in native title from an Indigenous service provider perspective Presented by Kevin Smith Chief Executive Officer
This presentation will address the following: 1. Historical background including the challenges 2. Statutory Scheme (brief overview of the claim, ILUA and future act regimes); 3. The Role of the Federal Court, NNTT and Rep Bodies all three institutions have ADR functions under the Native Title Act and Federal Court Rules; 4. The Different Dispute Resolutions processes and interventions involved; 5. Native title ADR is a Bi-cultural process (understanding of the Indigenous cultural factors); 2
1. Historical Background History weighs heavily on attitudes of Indigenous People in Native Title ADR processes If native title in Australia had its jurisprudential birth on the 3 June 1992 it had a very long gestation period. From an Aboriginal People and Torres Strait Islanders perspective, our laws and custom in relation to the rights and interest over land and waters should have been recognized upon the assertion of sovereignty in 1788. Australia was the only common law country where the colonizing English did not recognize its first Peoples and justified annexation under the legal fiction of Terra Nullius empty land 3
This legal fiction was perpetuated from the earliest cases: The Supreme Court of NSW described Aboriginal people as wandering tribes living without certain habitation and without laws who were never in the situation of a conquered people (Macdonald v Levy 1833) In 1889 the Privy Council in Cooper v Stuart characterised the colony as being neither acquired by conquest of cession but practically unoccupied, without settled inhabitants or settled law thus all land was annexed to the Crown without regard to the Aboriginal people. A concept that was affirmed by Justice Blackburn in Milurrpum v Nabalco as recently as 1971. 4
Native title may never have been recognised without the influence of the international human rights movement of the 1960 s and 70 s. In particular the UNCERD and the introduction of the Commonwealth RDA in 1975. Two High Court cases were fundamental building blocks to the recognition of native title: Koowarta v Bjelke-Peterson(1982) constitutional power to domestically enact the RDA using the external affairs power; and Mabo (no. 1) 1988 where the Queensland Coast Island Declaratory Act was held to be inconsistent with the RDA. In 1992 the High Court by 6 to 1 majority recognized that a form of traditional land title had survived the assertion of sovereignty (Mabo no 2). 5
After one of the longest running parliamentary debates, the Keating government introduced the NTA in December 1993 which commenced on 1 January 1994; The Preamble of the NTA recognised the importance of the international human rights norms along with the RDA; The Objects (s3) of the NTA are: 1. To provide for the recognition and protection of native title; 2. To establish ways in which future dealings affecting native title may proceed; 3. To establish a mechanism for determining claims; 4. To provide for, or permit, the validation of past acts, intermediate period acts, invalidated because of the existence of native title; The Native Title Act has codified native title in Australia. 6
From an ADR perspective it is important to appreciate this background. We are dealing with highly emotional, political, economic, cultural and social issues involving legal and factual issues that would not be out of place in international peace-keeping and treaty making Native title is very much about reconciling two legal systems and recognising the remnant rights and interests of Indigenous peoples that have survived the colonisation process 7
The Challenges to resolving native title claims: The issues are spread across two centuries; The burden of proof there is a justifiable perception that if Terra Nullius treated Aboriginal people as invisible the Native Title Act and subsequent jurisprudence has only bestowed the right on Aboriginal People to prove they aren t invisible (Yorta Yorta principles); The evidential challenges with proving recognition when the burden rests on a party whose laws and customs are oral in a legal system that is biased towards the written word when dealing with historical matters; A range of experts is required to prove the claim - anthropologists, historians, linguists, archeologist etc experienced experts are in short supply and high demand; 8
The Challenges to resolving native title claims cont. The claim group (the most disadvantaged people) is pitted against some of the most powerful and well-resourced institutions, companies and individuals in the country (the claimants can be against up to 300 respondents including governments spanning all three levels, infrastructure providers, miners, pastoral companies etc; The claimants have the added complexity of litigating and negotiating in a representative capacity; native title is essentially a class action brought on behalf of the past, present and future generations. No Pressure! Finally, even if parties agree, because Native Title is an in rem judgment the court must be satisfied that the determination is within power and appropriate (s87 NTA). 9 9
Connection and Extinguishment Native title claims are proved by adducing evidence as to the connection requirements - the Yorta Yorta Principles; Native title is a bundle of individual rights and interests that can be extinguished, partially or totally, provided there is a clear and plain intention by any inconsistent land dealing (the Ward case) Any inconsistency between the rights and interests will be read in favour of the non-indigenous rights and interests (Wik case) Once native title is extinguished, it cannot be revived (s237a) except in very limited circumstances (s47a and s47b NTA) 10
The recognition space is also the dispute space Aboriginal Traditional Laws and Customs Recognition Space Australian Legal System Acknowledge Noel Pearson as the source of the concept of the recognition space (See Mantziaris and Martin 2000: 10) 11
2. The Statutory Scheme The Road Map and the Road so Far (the results) 12
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Native Title Determinations Statistics As at 16 July 2012 Total number of decisions about determinations of native title made by a court or other recognised body:* 195 Consent determinations: 139 Litigated determinations: 25 Unopposed determinations: 30 Conditional determinations: 1 Determinations that have been registered on the NNTR 194 Determinations in the appeal process: 0 Determinations that native title exists in the entire determination area or in parts of the determination area: 150 Determinations that native title does not exist in the entire determination area: 44 Total number of native title applications that are affected in whole or in part by a determination of native title 220 Claimant applications affected by a determination: 184 Compensation applications affected by a determination: 1 Non-claimant applications affected by a determination: 35 * This figure includes conditional determinations of native title. It will not include determinations if the Tribunal has not yet been advised of their details. 20 20
3. Various roles of the NNTT, FC and Rep Bodies the shifting sands of institutional responsibility: a) Under the original NTA, claims were filed in the NNTT; this contravened the separation of judicial and executive powers under the Constitution (Brandy v HREOC 1995) b) From 1998 the NTA amended to transfer overall management of native title cases from the NNTT to the FC c) In 2007 the NTA amended so that all mediation be undertaken by the NNTT; d) In 2009 NTA amended to empower FC to supervise all dispute resolution processes could be refer to the NNTT, DDRs or independent mediators (Division 1B NTA) e) As of 1 July 2012 Federal Court has the responsibility for all claim mediation / case management as well as claim related ILUA mediation (no longer the responsibility of NNTT); f) NNTT has responsibility for non-claim related ILUA negotiation assistance as well as future act mediation (s31(3)), conferences (s150) and arbitration and special inquiries (s137); g) Rep Body represent and facilitate (203BB), must make reasonable efforts to avoid/minimise overlapping claims (s203bc) and mediate inter and intra Indigenous disputes between constituents (203BF) 21
4. Dispute Resolution Processes: facilitative, evaluative and determinative models are utilised across the native title system a) Facilitation function: Rep Bodies play a critical facilitation role to ensure that a claim or ILUA is properly authorized s251a and s251b; b) Case Appraisal; c) Conference of experts; d) Case management; e) Mediation (including intra and inter Indigenous); f) Arbitration. 22
Observations: It is difficult to predict how the FC might utilise its newly acquired power over claim related ILUAs - increased rate of claim disposition was a driver behind changes we might see more bare determinations rather than comprehensive settlements; Conference of experts ( hot-tubs ) will continue to be used; Very proactive court case management to distil issues; Specific issue trials (Aplin Case); The Native Title system will continue to be an active microcosm of ADR practice. 23 23
5. Cultural factors to take into account: Aboriginal Australia is not homogenous many diverse groups but there are some similarities: a) Knowledge is fragmented (men s / women s business); b) Authority Structure are spread across Elders, persons who have gone through ceremony (initiation); c) Emphasis is on family and community relationships as opposed to individual (dispute resolution is about restoration of communal balance and harmony as opposed to winners and losers); d) Concepts of appreciation of time are different due to relationships being important; e) Rights to speak (knowledge fragmentation); f) Taboo relationships (disrespectful to sit, talk, travel, eat with in laws); g) Silence; h) Questions (direct questioning is disrespectful); i) Gratuitous Concurrence; j) Eye contact; k) Taboos after death. 24