An evolving system of dispute resolution

3.41       The approach to native title determinations has changed several times since the system was established in 1994. Initially, applications were to be filed in the NNTT and determinations of the NNTT were to be given effect as if they were orders of the Federal Court. Such a scheme was held to be unconstitutional^[56] and from 1998 applications have been filed in the Federal Court. However, the Court would refer each application to the NNTT for mediation.^[57] From 2007, the NNTT had sole responsibility for mediation, but in 2012, the mediation function was transferred from the NNTT to the Federal Court.^[58]

3.42       The Court has shifted away from the referral of entire matters to mediation, and prefers ‘intensive case management to identify the issues in dispute … and … referral of particular issues to mediation’.^[59] The Court suggests that this approach has contributed to the increased number of determinations in 2012 and 2013.^[60]

3.43       In July 2010, the Court established a priority list for case management. Case management is intended to identify the issues in dispute and to assist the parties to reach agreement on those matters, which may include the identity of the persons who hold the rights claimed, the nature and extent of the rights, and most importantly for this Inquiry, whether the requirements of 223 of the Native Title Act (known as ‘connection requirements’) have been established.

3.44       A range of strategies has been used to assist the parties to reach agreement, including:

• case management conferences where experts identify the issues likely to be contentious prior to beginning fieldwork;

• orders timetabling the provision of connection material and the respondent’s analysis of that connection material;

• conferences of experts in the absence of lawyers, supervised by a registrar, aimed at narrowing connection issues;

• court-appointed experts, particularly where there is a dispute between Indigenous people;

• mediation on country, where state experts can question claimants; and

• early evidence hearings.^[61]

3.45       These initiatives have been generally well received. The Cape York Land Council, for example, said the initiatives have increased the rate of determinations and are generally beneficial.^[62]

3.46       Central Desert Native Title Services commented that ‘native title claims are no longer stuck in a circle of never-ending negotiations with respondent parties’, and that:

Programming matters for trial has also meant that the State of Western Australia, who are the primary respondent to native title claims, has been required to become more articulate in its opposition to native title claims and more pro-active in progressing claims such as with the early provision of tenure information.^[63]

3.47       Similarly, the Queensland Government reported that:

Case management by the Federal Court provides a more disciplined framework within which the parties to claims are required to be more accountable for the prosecution of matters … [and] has ensured that all aspects of claims are dealt with in a professional and timely manner.^[64]

3.48       On the other hand, the North Queensland Land Council said:

It would be desirable for the Court to recognise that its compressed time frames work against some native title groups particularly where the groups have been fractured and widely separated by removal policies as is the case in Queensland.^[65]

3.49       Prior to the introduction of intensive case management for native title matters, the Social Justice Commissioner raised concerns that the pressure of court deadlines can distract the parties from negotiating broader agreements and divert resources away from negotiations. The Commissioner suggested that there should be an option for parties to obtain a long-term adjournment of a matter if both parties consent.^[66]

3.50       Only 46 determinations occurred during the first 11 years of the Native Title Act, and 12 of those were non-claimant applications.^[67]

3.51       A series of test cases occurred between 1996 and 2002,^[68] and there were significant amendments to the Native Title Act in 1998.^[69] As the graph and Table 2 below indicate, from 2004 the number of determinations per year moved from single digits to double digits, and from 2011 the number rose significantly again.

Table 3

3.52       The National Native Title Tribunal reported that, between 1 January 1994 and 31 December 2011, the average time taken to reach a consent determination was six years and three months. The average time for a determination after litigation was seven years. These figures do not take into account the common occurrence of claims being withdrawn, consolidated and relodged.^[70] In its 2013–14 Annual Report, the Federal Court reported that:

The number of native title matters over eighteen months old decreased by twenty per cent from 368 in 2013 to 291 at 30 June 2014. The number of native title matters over two years old decreased from 320 at 30 June 2013 to 257 at 30 June 2014, a clear indication that the innovative case management strategies being employed in this area are working.^[71]