The role of the Crown in native title proceedings

12.16   Crown parties—states, territories and the Commonwealth—have specific roles in native title proceedings. States and territories are typically the first respondents to a native title determination application.[22] This reflects the fact that native title is primarily a matter to be determined between native title applicants and the Crown.[23] The Commonwealth may also be a party to proceedings.[24]

12.17   The Commonwealth has an additional role in overseeing the operation of the native title system. The Commonwealth Attorney-General may intervene in proceedings as of right under s 84A of the Native Title Act 1993 (Cth) (Native Title Act). For example, the Attorney-General intervened in Risk v Northern Territory in order to ‘submit that the course set in Full Court native title appeals determined since Yorta Yorta … had departed from what had been laid down in Yorta Yorta’.[25]

12.18   Crown parties are subject to model litigant requirements.[26] States, territories and the Commonwealth have published model litigant guidelines that set out how these parties will conduct themselves in proceedings, including in native title proceedings. The South Australian model litigant guidelines, for example, state that the model litigant requirement obliges the State to ‘act with complete propriety, fairly and in accordance with the highest professional standards’.[27] The Legal Services Direction 2005 (Cth) sets out various elements of the model litigant requirement for the Commonwealth:

The obligation to act as a model litigant requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:

(a)     dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation

(b)     paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid

(c)     acting consistently in the handling of claims and litigation

(d)     endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate

(e)     where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

         (i)      not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true, and

         (ii)     not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum

(f)     not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

(g)     not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement

(h)     not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and

(i)      apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.[28]

12.19   Similar requirements exist in state and territory model litigant policies.

12.20   Once a native title application has been made and the parties ascertained, the Federal Court refers the parties to mediation.[29] Mediation assists the parties to reach agreement on matters including whether native title exists in the area claimed, who holds the native title, and the nature and extent of the native title rights and interests and of any other interests in the area.[30] Where mediation results in an agreement between the parties, the Court may make a determination consistent with, or giving effect to, the terms of that agreement (a ‘consent determination’) under ss 87 or 87A of the Native Title Act. The Court’s power to direct parties to mediation and to make consent determinations reflects the importance of negotiation in the native title system.[31]

Consent determinations and connection assessment

12.21   Consistent with the role of the Crown as first respondent in native title determination proceedings, a preliminary step is for the relevant state or territory to assess an applicant’s connection evidence to determine whether the state or territory will enter into negotiations. In practice, other respondents will typically rely on the assessment of the relevant state or territory.[32] State and territory governments assess connection evidence in the light of each government’s consent determination policies, which must in turn reflect native title law as stated.

12.22   Before making a consent determination under ss 87 or 87A, the Court must be satisfied that it is ‘appropriate to do so’.[33] This does not require the Court to make its own assessment of the merits of the native title application[34]—the Court ‘is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application’.[35] Rather,

the primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis.[36]

12.23   The Court does not ‘exercise any paternalistic role as to the merits or demerits of the proposed settlement’,[37] and does not enter into consideration of the fairness of settlement terms, provided the parties involved have legal representation.

12.24   In considering whether the parties to proceedings have independent and competent legal representation, the Court may consider

the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.[38]

12.25   State and territory respondents may indicate to claimants their expectations regarding connection reports and negotiation, such as: the information they require about the claim; the standard of evidence they seek; and the elements upon which they would be willing to make inferences. However, in Lovett on behalf of the Gunditjmara People v Victoria (No 5), North J stated that:

something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application.[39]

12.26   Several stakeholders expressed concerns about current consent determination policies and approaches to negotiation. Queensland South Native Title Services (QSNTS) identified a lack of transparency as a concern:

The State’s assessment of the test requirements is not a transparent process with an option of being contested, for example, their standard for what is an acceptable or requisite level of acknowledgement of traditional laws and observance of traditional customs has never been clearly articulated … in the absence of clarity and the possibility of failing to reach agreement on the issues, matters will have to resort to formal litigation.[40]

12.27   Third party respondents may also benefit from a transparent approach to negotiation, particularly where they wish to assess whether or not they should proceed to a consent determination. The Association of Minerals and Energy Companies (AMEC) noted:

AMEC members, who may find themselves as respondents to native title proceedings, would benefit from greater transparency on the basis on which the primary respondent (the relevant State or Territory Government) accepts connection or refuses to accept.

Clarity on the lead respondent’s position and the basis for that position, particularly early in a claim process, would assist third party respondents to more effectively and efficiently participate in claim proceedings.

AMEC members have expressed a need to access connection reports in order to better understand the actual history and customs of the claimant group and their veracity. At significant cost some AMEC members have had to commission their own connection reports to satisfy themselves with the authenticity of claim groups, and individuals within the claim group. This transparency issue should be addressed.[41]

12.28   More generally, concerns have been raised that the ‘current method of assessing connection has simply relocated an adversarial evidentiary process from the Federal Court to State and Territory Governments’.[42] Justice Barker, writing extra-curially, has commented that there is a danger that assessment of connection by state and territory respondents can ‘tend to become ritualistic, formulaic, cumbersome and bureaucratic’.[43]

Timing of tenure analysis and connection assessment

12.29   As part of native title proceedings, state and territory respondent parties will analyse the tenure in the areas under claim, for the purpose of identifying areas where native title has been extinguished. Although some stakeholders suggested that tenure analyses should be prepared earlier in proceedings, the ALRC has concluded that statutory reform in not necessary.

12.30   Commentators and stakeholders have noted that the production of tenure analyses is often a source of delay in native title proceedings. Justice Barker commented:

It would be extremely useful to the early resolution of all claims if, contrary to the practice currently adopted whereby tenure analysis is usually conducted after connection issues are resolved, States and Territories were to undertake a tenure analysis as soon as possible after a claim has been lodged, if not beforehand. Once a tenure analysis has been made and settled by the parties, realistic assessments can be made on all sides about the extent to which native title is contestable. This would serve to inform the direction of negotiations over a claim made or likely to be made. …

This is a conversation that needs to be had, because the approach to tenure analysis usually taken under current approaches consumes an inordinate amount of time and money, comes late in the process and has the real potential to delay the resolution of native title claims or limit the options for their resolution. If, without compromising the outcomes of tenure analysis, a current tenure analysis different from that ordinarily made were capable of serving the purposes of all parties under the NTA, and could be completed more easily, cheaply and quickly, then why would it not be considered? That is the question.[44]

12.31   Stakeholders also expressed concerns about the time taken for the production of tenure analyses. Yamatji Marlpa submitted that Western Australia’s

approach to tenure analysis—deferring it until after connection material has been reviewed in order to form a view about progressing to the next stage of potential consent determination negotiations—has the effect of causing unreasonable delays.[45]

12.32   Similarly, the Law Society of Western Australia submitted that:

the State’s unwillingness to undertake a tenure analysis until it has reviewed connection material and determined that it is willing to proceed to a consent determination unreasonably delays consideration of tenure issues. The open and early dissemination of information by the State would promote the early resolution of claims and a consideration by native title parties of the impact of extinguishment issues on their claims and negotiation position. It would be within the scope of the court’s jurisdiction to make programming orders to this effect.[46]

12.33   The impact of tenure analysis timing on respondents was noted by the Minerals Council of Australia (MCA):

The MCA agrees that the lack of concurrence in the sequence between the bringing of evidence to establish connection and tenure searches conducted by governments is a key constraint in the native title system. In particular, this was experienced in the Ngadju case in Western Australia where leases were granted but then found to be invalid as the State was unable to demonstrate the existence of historical grants for the lease areas.

Presently, there is no common set of programming orders for a native title claim. This results in all claims evolving differently, and we welcome the proposal for reform. Changes must deliver a commonality of approach (including predictability and systemisation) to the process. At this same time, tenure information must also be comprehensively and accurately provided.[47]

12.34   However, there are several arguments against the introduction of a general requirement for tenure analyses to be prepared concurrently with connection reports.

12.35   First, the Federal Court’s existing powers with regard to case management and expert evidence provide a means to manage the sequence of connection reports and tenure analyses. Moreover, the Court’s discretion may be exercised on a case-by-case basis, allowing for the specific circumstances in each case. Several stakeholders submitted that the sequence of bringing connection evidence and tenure analyses should be determined using the Court’s existing powers, with sequences determined on a case-by-case basis.[48] The Federal Court of Australia noted that it has

in various matters made orders timetabling the provision of connection material and the outcome of the analysis of that material. The imposition of a Court ordered timetable aims to ensure that the connection process occurs in a timely manner and allows the parties to allocate resources accordingly.[49]

12.36   Secondly, reforms designed to accelerate the production of tenure analysis material may have deleterious consequences if they result in insufficiently considered tenure analyses. NTSCORP made this point, noting:

There can be significant delay in the preparation of tenure material. Following its production, the consideration of this material by parties is laborious, but it is essential that such analysis is undertaken properly as the rights and interests afforded to native title claimants are largely dictated through this process.[50]

12.37   This argument reflects the observation, made several times throughout this Inquiry, that the speed with which outcomes are achieved is not the only factor to be considered.

12.38   Thirdly, several state governments advised the ALRC that the preparation of a tenure analysis is both expensive and time consuming.[51] The Department of Justice, Victoria submitted that the ‘complexity of historical land dealings has given rise to high transaction costs for the required tenure analysis’.[52] The Western Australian Government submitted that ‘tenure and extinguishment considerations … are currently a significant source of delay’.[53] The timing of a tenure analysis will also depend on the consent determination policy of Crown respondents. The South Australian Government submitted that, under its policy,

the tenure analysis is undertaken at the same time as the expert anthropological material is being prepared. … As such, in South Australia there is concurrence unless the balance between the perceived weakness of the connection of the group concerned suggests that expensive analysis of tenure should await confirmation that the group actually holds native title.[54]

12.39   It emerged from consultations that tenure analyses are often delayed until there is greater certainty about the lands and waters being claimed. By delaying tenure analysis until a connection report has been prepared, state and territory respondents may avoid the unnecessary costs of preparing a tenure analysis for lands over which connection cannot be established. However, early tenure analysis may assist applicants in avoiding the unnecessary costs of preparing connection evidence for an area where native title has been extinguished.[55]

12.40   Overall, the ALRC considers that it is unnecessary to introduce statutory reforms requiring the earlier production of tenure analyses and assessment of connection. As a matter of best practice, however, it may be appropriate for state and territory governments to seek to prepare tenure analyses earlier, where possible.

Best practice principles

12.41   In the Discussion Paper, the ALRC asked whether the Australian Government should develop its own consent determination policy setting out the Commonwealth’s responsibilities and interests in relation to consent determinations.[56] The ALRC also asked whether the Australian Government should develop national best practice principles to guide the assessment of connection in respect of consent determinations. The development of such policies, it was suggested, would allow the Commonwealth to clarify its own position, and may provide a leadership role with respect to the development of best practice principles. It may also assist in addressing some of the variations between the consent determination policies of the states and territories. These variations were noted by the North Queensland Land Council:

[S]ome States and Territories have not published connection guidelines and the observation is made that it may be difficult to determine the exact requirements of their connection policy. Some States do not require connection reports as such. There is no requirement in the [Act] to develop connection guidelines.[57]

12.42   There have been previous documents setting out principles to guide states and territories in native title negotiations. The Guidelines for Best Practice, developed by the Joint Working Group on Indigenous Land Settlements for Flexible and Sustainable Agreement Making,[58] set out principles designed to provide practical guidance for government parties to achieve ‘flexible, broad and efficient resolutions of native title’, particularly with respect to broader land settlements.[59] These guidelines emphasise early negotiation, cultural awareness and sensitivity and adherence to model litigant principles.[60]

12.43   Several stakeholders supported the development of a Commonwealth consent determination policy or national best practice principles,[61] although Central Desert Native Title Services questioned whether a Commonwealth policy or principles would ‘have any real and substantive impact on the resolution of native title claims’.[62] The South Australian Government was opposed to the development of national best practice principles, submitting:

The states and territories all have best practice principles in the assessment of connection that reflect the requirements of each State or Territory jurisdiction and that are consistent with the requirements of the NTA.[63]

12.44   Overall, it was not clear that there were problems with consent determination policies that could reasonably be addressed by Commonwealth policies. Stakeholders’ experiences with consent determinations appeared to vary between jurisdictions. For example, while several stakeholders submitted that there were significant delays in consent determinations in Western Australia,[64] South Australian Native Title Services stated that they had ‘established positive relationships with successive State Governments and other respondent parties to resolve native title through negotiation and consent’.[65]

12.45   The context of consent determinations also varies between states and territories. Victoria has adopted an approach based on agreement and consent through legislation.[66] In the Northern Territory, a range of processes have been introduced since 2007 to increase the efficiency of claims resolution over pastoral estates, including:

  • not disputing the existence of native title holding group at sovereignty (subject to extinguishment);

  • progressing claims in ‘group clusters’ based on geographical and anthropological commonalities;

  • negotiating consent determinations of native title on pastoral leases based on a short-form or truncated supporting anthropological connection report;

  • agreeing on templates for ‘statement of agreed facts’ and ‘joint submissions’ in support of all pastoral estate consent determinations;

  • relying on a generic list of public works existing on pastoral lease areas; and

  • streamlining Governmental approval processes of consent determinations of all pastoral estate claims.[67]

12.46   Given the varied experiences and contexts between the states and territories, the ALRC considers that it would be impractical to develop best practice principles that could be applied across all jurisdictions.