Native title application inquiries

12.94   Under ss 138A–138G of the Native Title Act, the Court may direct the National Native Title Tribunal (the Tribunal) to hold a native title application inquiry into matters or issues relevant to a determination of native title.^[118] The outcomes of the inquiry are non-binding, but may provide guidance to the parties or the Court. The inquiry process may be beneficial in native title proceedings. However, the process appears to have been rarely used.^[119]

12.95   The ALRC recommends that native title application inquiries not require the consent of the applicant, and that the National Native Title Tribunal be empowered to summon a person to appear before it in a native title application inquiry. These recommendations are intended to facilitate the use of the native title application inquiry.

12.96   The Court may direct the Tribunal to hold a native title application inquiry where proceedings have been referred to mediation under s 86B^[120] and the proceedings raise a matter or an issue relevant to the determination of native title under s 225, including:

• the persons or groups of persons holding native title rights;

• the nature and extent of native title rights and interests in relation to the determination area;

• the nature and extent of any other interests in relation to the determination area; and

• the relationship between native title and other rights and interests.

12.97   A direction for an inquiry may be made on the Court’s own motion, at the request of a party to the proceedings, or at the request of the person conducting the mediation.^[121] The Court may only make a direction for an inquiry if:

• the Court is satisfied that resolution of the matter would be likely to lead to: an agreement on findings of facts; action that would resolve or amend the application to which the proceeding relates; or something being done in relation to the application to which the proceeding relates;^[122] and

• the applicant agrees to participate in the inquiry.^[123]

12.98   An inquiry may cover more than one proceeding^[124] and more than one matter.^[125] The parties to an inquiry include the applicant, the relevant state or territory minister, the Commonwealth Minister and, with the leave of the Tribunal, any other person who notifies the Tribunal in writing that they wish to participate.^[126]

12.99   Following an inquiry, the Tribunal must make a report, stating any findings of fact.^[127] The Tribunal may make recommendations in the report, but these recommendations do not bind the parties.^[128] However, the Federal Court must consider whether to receive into evidence the transcript of evidence from a native title application inquiry, may draw any conclusions of fact that it thinks proper, and may adopt any recommendation, finding, decision or determination of the Tribunal in relation to the inquiry.^[129]

12.100         Native title application inquiries appear to offer a number of benefits. The inquiry process ‘can be harnessed to collect and assess evidence and arrive at conclusions capable of being fed into the mediation process and is also capable of being received and adopted by the Court’.^[130] Inquiries could be used, for example, in disputes relating to connection, authorisation or joinder. The use of the inquiry power in appropriate circumstances is in keeping with ‘the importance placed by the Act on mediation as the primary means of resolving native title applications’.^[131]

12.101         Several stakeholders supported an increased role for the native title application inquiry process. Yamatji Marlpa stated that ‘the increased use of inquiries would be useful in overlapping claim disputes or with disputes about claim group descriptions’.^[132] The Law Society of Western Australia considered that:

the increased use of inquiries would be useful in overlapping claim disputes or claim group description disputes. This is particularly useful where the courts have been constrained from setting matters down as preliminary issues due to parties being unwilling to agree other facts.^[133]

12.102         However, support for the inquiry process was not universal. QSNTS submitted that:

it would be counter-productive to blur the very clear demarcation that has caused stakeholder confusion in the past. With the Federal Court having greater control in this area, there is no need to have a parallel process. The preference is to keep the NNTT out of the claim process noting that the Native Title Registrar—as opposed to the Tribunal—has important administrative functions around registration testing and notification of native title determination applications that need to be retained.^[134]

12.103         Recommendations 12–4 and 12–5 are intended to facilitate the use of the native title application inquiry process, in light of the support for the process from some stakeholders. The use of the inquiry process remains at the discretion of the Court, and the ALRC does not take a position on whether increased use of the process is desirable. The inquiry process will be used in circumstances in which the Court considers it appropriate.

Requirement for an applicant to agree to an inquiry

12.104         Section 138B(2)(b) of the Native Title Act provides that the Court may only direct the Tribunal to hold an inquiry if the applicant agrees to participate in the inquiry. This requirement reflects the intent that the inquiry process be voluntary. The Explanatory Memorandum to the Native Title Amendment Bill 2006 (Cth) noted:

The native title application inquiry process is entirely voluntary. However, the applicant or applicants in an affected application are required … to be a party to the inquiry. Therefore, it is important that the applicants’ consent be obtained prior to conducting an inquiry. Furthermore, it is unlikely a native title application inquiry would have an effective outcome if the applicant does not participate in the inquiry process.^[135]

12.105         The ALRC recommends that s 138B(2)(b) be repealed. This would not affect s 141(5) of the Act, which provides that the applicant is a party to an inquiry. An applicant may find benefit in the inquiry despite initial reluctance. It has been noted of mediation that ‘some persons who do not agree to mediate, or who express a reluctance to do so, nevertheless participate in the process often leading to a successful resolution of the dispute’.^[136] The same may be true of parties to the inquiry process.

12.106         Support among stakeholders for the removal of the requirement for the applicant’s agreement to the process was mixed. Several stakeholders were opposed to the removal.^[137] The Law Society of Western Australia argued that ‘[n]o effective consequence could be achieved by making the process non-consensual, because … any decision arrived at by the process of inquiry could not bind the parties, so there is no point in compelling them to participate’.^[138] QSNTS argued:

A successful inquiry process can only occur where parties are invested in the process and outcome. Given the conciliation objects of the NTA and the importance of consensual decision-making in the workspace, no party should be compelled to participate if they do not wish to.^[139]

12.107         Other stakeholders supported the removal of the requirement.^[140] The National Native Title Tribunal submitted that:

the complexities of many remaining native title determination applications not only mean such applications would potentially benefit from a native title application inquiry but that there may be reluctance on the part of some applicants to agree to participate in an inquiry. The current requirement that the applicant agrees to participate, limits the circumstances in which the Federal Court could direct the Tribunal to undertake an inquiry and removes a potential mechanism to assist in the resolution of an application through mediation, although, it is noted that an inquiry may be limited if unsupported by the applicant.

If amendments were to be made to the Act whereby the Federal Court did not require the agreement of the applicant to direct the Tribunal to conduct an inquiry, the Tribunal would require the appropriate powers to direct parties to attend hearings, and produce documents etc.^[141]

12.108         Given that the Court retains the discretion to make a direction that a native title application inquiry be held, the ALRC considers that concerns about an inquiry taking place without the consent of all parties may be overstated. In the event that an applicant does not wish to take part in an inquiry, the Court may decide not to direct the inquiry to be held.

12.109         The ALRC also notes that the Federal Court’s power to refer proceedings to alternative dispute resolution does not require the consent of the parties, except in the case of referrals to arbitration, which may result in a binding decision.^[142] The native title mediation process itself does not require the agreement of the applicant (or any other party).^[143] Given that these alternative dispute resolution processes are useful despite not requiring the consent of parties, the inquiry process might have value even without the agreement of the applicant.

Evidence gathering powers of the Tribunal

12.110         Under s 156(2) of the Act, the Tribunal has the power to summon a person to give evidence or produce documents. However, under s 156(7), this power does not apply in respect of a native title application inquiry. The ALRC recommends that s 156(7) be repealed.

12.111         The powers of the Tribunal would be strengthened by repealing s 156(7), so that the Tribunal would be empowered to summon a person to give evidence or produce documents in a native title application inquiry, as it is in other types of inquiries.

12.112         The reason for the introduction of s 156(7) into the Act is given in the Explanatory Memorandum to the Native Title Amendment Bill 2006 (Cth):

Native title application inquiries are intended to be an entirely voluntary process which parties to proceedings may avail themselves of in order to facilitate resolution of the claim. Persons who agree to voluntarily participate may not be compelled to give evidence.^[144]

12.113         Empowering the Tribunal to summon a person to give evidence or produce documents would alter the voluntary nature of the native title application inquiry process. If s 156(7) of the Act were repealed, and the Tribunal summoned a person to give evidence or produce documents, a failure of that person to do so would be an offence under ss 171 and 174 of the Act, respectively, unless the person had a ‘reasonable excuse’.^[145] However, the desirability of retaining an entirely voluntary inquiry process must be balanced against the potential benefits of strengthening the Tribunal’s powers.

12.114         Stakeholders who commented on this proposal were generally supportive.^[146] AIATSIS, for example, submitted:

Inquisitorial tribunals with the power to summon persons arguably operate more effectively because the fact finding mission is not dependent on the willingness of parties to engage. Although parties rarely wish to be seen as uncooperative with or obstructive to the arbitral tribunal and usually will wish to comply when they reasonably can, the capacity to compel attendance arguably sets the tribunal apart from dispute resolution activities, such as mediation.

Without the power to compel attendance by persons identified by the tribunal as important to its fact-finding mission, the effectiveness of the tribunal can be subverted. However, it is also arguable that compelling attendance may promote a disingenuous engagement by parties that also subverts the effectiveness of its processes.^[147]

12.115         The Law Society of Western Australia supported the Tribunal having the power to summon persons for a native title application inquiry, as well as ‘the power to draw inferences against any party who does not participate’.^[148] The Law Society also suggested, however, that some persons may face ‘resourcing issues and the NNTT should be able to take these into account together with any other reasonable excuse (eg cultural obligations)’.^[149] Although the ALRC considers that a power to draw inferences against a party who does not participate is unnecessary, the ALRC agrees that the Tribunal should take factors, such as resource constraints or cultural obligations, into account when summoning a person, unless the person has a ‘reasonable excuse’,^[150] and factors such as resource constraints or cultural obligations may provide a ‘reasonable excuse’ for these purposes. The ALRC also notes that factors such as resource constraints or cultural obligations may provide a ‘reasonable excuse’ such that the offences for a person’s failure to attend the Tribunal or provide required documents under ss 171 and 174 do not apply.