The need for reform

Balancing considerations in the party and joinder process

11.27   The party and joinder provisions in the Native Title Act raise a number of issues around the balance of interests in the native title system which may affect how readily a native title determination is reached, as well as whether the proceedings are protracted and involve administrative burdens for all parties,[37] and the institutions administering the native title claims process (the National Native Title Tribunal and the Federal Court).

11.28   As ‘a useful tool of legal analysis’, native title is regarded as a burden on the radical title of the Crown.[38] In accordance with this position, the parties to a native title proceeding include the applicant and the relevant state, territory or Commonwealth government. The Native Title Act, as noted, provides other persons and organisations in addition to the Crown with an opportunity to be become a party through the notification process and also allows for applications for subsequent joinder of parties.[39]

11.29   As a practical matter of access to justice, therefore, third party respondents whose interests may be affected by a native title determination are provided with an opportunity to be involved in the proceedings.[40] The ALRC notes that this has the practical effect that there can potentially be a large number of parties. Once a person becomes a party, that person will be required to participate in proceedings, often at some time and cost, and in most circumstances, that person’s consent is necessary for a consent determination.

11.30   Different considerations apply to claimants and potential claimants as respondent parties. There may be a mix of reasons for claimants or potential claimants to seek to join native title proceedings. The existence of overlapping claims or disaffection within claim groups may precipitate applications for joinder. Other Aboriginal and Torres Strait Islander peoples may seek to assert their own claims to land and waters, and see the courts as the appropriate avenue, notwithstanding that no determination can eventuate through participation as a respondent.

11.31   Given the diversity of interests in any native title claim, the ALRC considers that in most instances active case management by the Federal Court will be the most appropriate way to balance the considerations arising in applications for joinder.

11.32   The ALRC has not made recommendations about respondent funding, but notes that respondent funding for some parties, especially groups not able to avail themselves of representation by major industry organisations, will be an important means of enabling participation. On principles of equity, consideration might be given to whether potential claimants, unable to avail themselves of funding through other sources, might access such funding in appropriate circumstances. Consideration around the provision of funding in all circumstances should support the conciliation and mediation focus in native title claims resolution, and the beneficial purposes of the Native Title Act.[41]

11.33   It is also important, however, to balance access to justice considerations with the need for proceedings not to be unduly long or complicated, so that justice can be efficiently administered.[42] Large numbers of respondent parties have the potential to adversely affect the interests of claim groups. AIATSIS expressed a concern that:

Resource intensive challenges to native title claims are at times avoided only by the applicant agreeing to enter an arrangement with the respondent, whereby many of the rights that could be gained from a determination are abrogated. This can occur even when the State has agreed connection and the parties are negotiating terms for a consent determination.[43]

11.34   Other stakeholders suggested that the party and joinder provisions in s 84were operating adequately, and that reform of these provisions was unnecessary. The South Australian Government, for example, considered

the current powers of the Federal Court to be adequate whereby the interests of justice can be taken into account. The jurisprudence that has developed in this area over the last ten years should not be undermined by making changes to the underlying provisions.[44]

11.35   Although consultations indicated that the party and joinder provisions generally appear to be operating satisfactorily, several issues of concern were identified in the Inquiry. Stakeholders expressed concerns, such as:

  • the potential for increased costs and delays arising from participation of non-Crown respondents;[45]

  • the impact on parties when a new party is joined late in proceedings;[46]

  • the need for clarity and certainty around the party provisions;[47] and

  • the desirability of mechanisms allowing parties to limit their involvement.[48]

11.36   The Federal Court has noted:

the claims notification and joinder provisions of the Act in their application to both indigenous and non-indigenous prospective parties have the capacity to significantly delay the progress of claims and impose substantial administrative burdens on the Court, National Native Title Tribunal and the parties. For example, while the provisions relating to the joinder outside of the notification period were amended in 2007 to require not only that the applicant for joinder have an interest that may be affected by a determination but also that it be in the interests of justice that they be joined, no similar interests of justice requirement exists in relation to joinder during the notification period. This has frequently meant that parties whose interests the jurisprudence tells us are protected and who have no desire or capacity to participate in the resolution of the claim must be joined. Often these parties are dismissed when a claim approaches resolution without ever having actively participated despite Court orders that they do so. Delay and administrative burden are inevitable with seemingly little, if any, overall benefit.[49]

11.37   Legislative reform may not be the most appropriate way to address all stakeholder concerns, particularly, given the Court’s existing powers for managing the participation of parties, joinder and dismissal of parties.

11.38   More generally, recommendations should balance the importance of representation of interests for respondents, claimants and potential claimants in native title proceedings,[50] with timely but just outcomes for claimants.[51]

The Crown as primary respondent

11.39   Where native title is determined to exist, it is held to be a burden on the radical title of the Crown—that power allows the Crown to deal with land and water and to grant interests to third parties. Where native title is found to exist in offshore areas, it is non-exclusive, and must be consistent with Commonwealth sovereignty over those waters and Australia’s international obligations.[52] States, territories and the Commonwealth as the holders of the powers and obligations to deal with land, waters and offshore areas, are therefore the ‘primary’ respondents in native title determination proceedings.

11.40   Section 84(4), which provides that the relevant state or territory minister is automatically a party to proceedings unless the minister opts out by notice, reflects this central role. The Commonwealth may become a party to proceedings if the minister gives notice under s 84(3)[53] and may otherwise join proceedings under s 84(5). The Commonwealth may also intervene in proceedings under s 84A.

11.41   In fulfilling its role as a primary respondent, the Crown is not held to be subject to a qualification of its powers, beyond those of a procedural character required for the proper conduct of proceedings. In other jurisdictions, such as Canada and New Zealand, there are doctrines or treaty obligations that mediate the role of the Crown in its relationship to indigenous claimants. Chapter 9 sets out relevant principles, such as ‘Honour of the Crown’.

11.42   On one view, Crown parties should represent all interests that are ultimately derived from a Crown grant for the purposes of ss 225(c) and (d).[54] Persons holding these rights and interests—which may include, for example, holders of certain classes of pastoral leases, holders of mining tenements, and holders of licenses permitting the use of an area such as a national park for recreational or commercial purposes—should generally not be involved in proceedings, on the basis that the Crown, as grantor, may not derogate from the rights granted and thus has a duty to identify and confirm the interests it has created. NTSCORP set out this argument:

Only the [Crown] has the power to effect changes to land tenure. … NTSCORP submits that any interest in land granted to a member of the public is created by legislative instrument or by a contractual arrangement. The interest thereby created extinguishes native title to the extent contained within that instrument/document, nothing more, nothing less. The interests thus created are picked up during the tenure analysis process and those interests are noted in the determination. To this extent we argue that any person with an interest in land cannot under the operation of the NTA be affected in any way by the determination of native title. If that party does consider their/its interests may be affected then they are at liberty to raise their concerns with the State who are able to ensure those interests are accommodated in any determination.[55]

11.43   A number of stakeholders took this view. Kimberley Land Council submitted that the ‘appropriate parties to address connection are Crown parties’, since ‘recognition of connection is a recognition of an imposition on sovereignty’.[56] Angus Frith and Associate Professor Maureen Tehan argued that

the only parties that should be involved in native title litigation are the applicant, together with any other native title party, and the Crown. All other respondents take their rights and interests from [the] Crown, which, in the native title context, has a duty to protect them.

The respondents themselves are not likely to be able to add very much to the litigation apart from the manner in which they exercise those rights and interests. The Crown is quite capable of asserting and describing the rights and interests it has granted.[57]

11.44   Queensland South Native Title Services (QSNTS) similarly submitted:

From a principled perspective, native title is fundamentally the resolution of rights and interests relating to three legal systems—Indigenous (including overlapping interests), State/Territories and the Commonwealth. As such, the mandatory parties should be confined to those three categories of parties.[58]

11.45   Other stakeholders, however, expressed concerns about limiting participation to applicants and Crown parties.[59] The Western Australian Government noted:

The State is not always in a position to identify all interests held by all third parties … The State’s tenure records and retrieval systems are extensive and thorough but not perfect. Much historical land tenure information was created at a time before the existence of native title was contemplated. Third parties sometimes hold interests which are not apparent in the State’s records for a variety of reasons.[60]

11.46   Concerns were expressed about procedural fairness and the Crown’s capacity or suitability for representing commercial, recreational and other interests in relation to the determination area. Ergon Energy, for example, submitted that there may be ‘a potential conflict between the State and Ergon Energy’s interests particularly where Ergon Energy holds or seeks an interest in State land’,[61] and that ‘an expectation that the State will represent Ergon Energy’s interests in native title proceedings is unrealistic given the capacity of the State and the potential for conflict of interests to arise’.[62]

11.47   The views expressed by stakeholders reflect the different ways in which the representation of ‘interests’ is understood to be at issue in native title determination proceedings. On the one hand, the Crown (subject to the concerns of the Western Australian Government, set out above) is in a position to represent the interests of third parties that are ultimately derived from the Crown. On the other hand, at a practical level the Crown may not be in a position to know the operational, commercial, or recreational factors that third parties see as part of a broader designation of interests, especially where information about the determination is not readily available from the Crown. These practical factors may generate concerns about a native title determination and may impede negotiations.[63]

11.48   The ALRC considers that, as a matter of principle, native title proceedings should ultimately be a matter between the applicant for a determination of native title and relevant Crown parties. However, the Native Title Act currently allows for designated persons whose interests are affected by a determination to become parties.[64]

11.49   Under its Terms of Reference, the ALRC was asked to examine access to justice for designated classes of persons rather than broader reforms to the party and joinder provisions of the Act as a whole. The ALRC therefore makes no recommendations about whether wider reforms are required. The ALRC supports further examination of these issues and notes that managing the current broader participation of parties is generally best handled by robust case management.

Effective representation of interests affected

11.50   Native title proceedings differ from many other types of legal proceedings in that very large numbers of parties can be involved and affected by the outcome of the proceedings.

11.51   A native title determination is ‘conclusive evidence for the future of the existence or non-existence of the native title … claimed, not only as between the parties to the proceedings under the Native Title Act but as against the entire world’.[65] Native title proceedings therefore bring before the Court

all parties who hold or wish to assert a claim or interest in respect of the defined area of land [in order to] bring about a decision which finally determines the existence and nature of native title rights in the determination area, and which also identifies other rights and interests held by others in respect of that area. As the determination is to be declaratory of the rights and interests of all parties holding rights or interests in the area, the determination operates as a judgment in rem binding the whole world.[66]

11.52   Access to justice is a principle which requires that a person is given a full opportunity to represent their interests before the court. The Full Court of the Federal Court noted in Gamogab v Akiba that it ‘is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party’.[67] A number of stakeholders also noted the importance of a person being able to participate in proceedings that may affect their rights or interests. For example, the Association of Mining and Exploration Companies (AMEC) submitted that

it is in the interests of justice if all parties with interests in a claim area are given the opportunity to participate in the resolution of the claim. This is because the Court is being asked to make a finding in relation to the nature and extent of third party interests in a claim area, which necessarily includes their validity.[68]

11.53   The Chamber of Minerals and Energy of Western Australia (CME) submitted, as an example of these impacts and consequences, that the validity of mining interests may be challenged through the native title determination process.[69]

11.54   Wide community involvement in native title proceedings may also contribute to general community support and acceptance of the native title process.[70] This is particularly important given the concerns that have been held by various parts of the community about the native title system.[71] AIATSIS made the related observation that many persons may seek joinder in order to have access to information about the progress of the proceedings:

Many parties to native title matters … are involved in native title processes in order to keep appraised of the progress of individual matters. There is potential for focussing on stronger information-sharing with [such parties] that provides opportunity for their engagement with any particular native title matter, while reducing the burden of [their] involvement in legal processes for native title recognition.[72]

11.55   The ALRC considers that it is important that parties with rights or interests that may be affected by a determination are given the opportunity to participate in native title determination proceedings. It does not follow, however, that any ‘right’ that intersects with native title should be sufficient to ground a person’s participation in proceedings.  The Court’s existing discretion under s 84(5) is appropriate for balancing these considerations.

Representative organisations

11.56   Representative organisations—recreational groups, industry representative bodies, or sporting bodies, for example—may represent the commercial, recreational or other interests of their members, and the interests of these members may be affected by a native title determination. However, the representative organisation itself will generally not be able to become a party to proceedings unless, separately from its members, it has an interest sufficient to become a party under ss 84(3) or 84(5).[73]

11.57   The 2006 Native Title Claims Resolution Review included a recommendation regarding allowing industry bodies to intervene in proceedings:

That consideration be given to amending the ‘party’ provisions of the NTA (section 84) to allow an industry body to intervene in a representative capacity if one or more of its members is or was otherwise entitled to be a party and wishes the industry body to represent him, her or them. This should be subject to the Court’s discretion to refuse permission to intervene as appropriate, to allow intervention on terms, and to later remove the industry body if relevant circumstances change.[74]

11.58   In the Discussion Paper, the ALRC proposed a similar reform to the Native Title Act to allow a representative organisation to become a party to proceedings if it represented a person with an interest that may be affected by a determination.[75] The proposal would have allowed an organisation—such as a recreational group, sporting body, or industry body—to become party to proceedings, despite the organisation itself not having an interest in the claim area. The proposed reform may have relieved persons who are represented by an organisation from the need to actively participate in proceedings that may be unfamiliar and complex, as well as reducing the numbers of parties, delays and expenses in native title proceedings.

11.59   A number of stakeholders expressed support or conditional support for the proposal. The primary reason expressed for this support was that the reform would result in a reduction in party numbers,[76] particularly if a representative organisation were a party instead of, rather than in addition to, its members.[77] The Minerals Council of Australia (MCA) suggested that the participation of a representative body would be ‘particularly beneficial where there is no current application for title or current holding for tenure’,[78] while the National Farmers’ Federation suggested the participation of a representative body ‘would support transition in circumstances such as when pastoral land is transferred land’.[79] Other stakeholders were opposed to the reform, expressing concerns about the introduction of organisations which may represent broader interests than those that would be directly affected by a native title determination in the proceedings.[80]

11.60   The ALRC considers that it would be problematic to restrict the participation of a person on the grounds that the person’s representative organisation was party to proceedings. A member may disagree with the position taken by the representative body, and different members may have different or conflicting interests that cannot be adequately represented by a single representative body.

11.61   The proposal must also be considered against the existing s 84B of the Native Title Act, which allows a party to appoint ‘a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding’.[81] That organisation may act for more than one party in the proceeding.[82] The Law Council of Australia noted the relevance of this section of the Act, and submitted that the appointment of an agent under s 84B ‘ensures that those whose interests are at stake are properly identified and engaged in the Court process and specifically answerable for their position, in the same way all other parties are’.[83]

11.62   The ALRC agrees that the appointment of an agent, particularly where that agent is representing multiple parties, is preferable to the participation of a representative body as a party in its own right. The possible use of s 84B to appoint a representative body was noted in the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth):

A party may appoint a society, organisation, association or other body as that party’s agent in the proceeding [section 84B]. That agent may act for more than one party in the proceeding. For example, a number of pastoralists who are parties to a proceeding and have similar interests could appoint a peak body to act as their agent in the proceeding. The body might also arrange, for example, for a number of parties to be represented by one legal practitioner. The common law rules of agency will apply where an agent acts on behalf of a party to the proceeding.[84]

11.63   Where a representative organisation wishes to raise issues in proceedings but does not have sufficient interest to become a party to proceedings, it may nevertheless seek the Court’s leave to appear as amicus curiae or to intervene under r 9.12 of the Federal Court Rules 2011 (Cth). In either of these roles, a representative body is able to bring matters to the Court’s attention without being a party to proceedings.