Time frames and cost

Concerns about timeliness

3.31       Concerns about cost and timeliness have been prominent in discussion of the Native Title Act. In 2012, Brian Wyatt, CEO of the National Native Title Council, said that ‘we are tired and weary of our old people dying before decisions are made on the native title’.^[36] Also in 2012, John Catlin, Executive Director, Native Title Unit, West Australian Department of Premier and Cabinet, noted that ‘the failure of the Act to deliver timely and effective outcomes is undeniable’.^[37]

3.32       Despite the increase in the rate of determinations made by the Federal Court since 2011, stakeholders continue to report that they consider the native title system to be too slow and expensive.^[38]

3.33       Traditional Owner, Gumbaynggirr man and Garby Elder, Anthony Clarence Perkins, commented after the determination over his land at Red Rock Beach:

I never thought it would have an ending, I’ll be honest. It’s been going a long while. To me we may say it’s taking too long to be awarded native title to our property or country or whatever areas. But again we’ve got to look at the fact that there’s a lot to be done in the process. We’ve been sort of disconnected for lots of years, and we’ve got to pull all the information back before we can go forward, and that sometimes frustrates a lot of people. But to us it’s a step in the right direction.^[39]

3.34       The time frame in this case attracted judicial criticism. Jagot J was scathing about the 17 years that it took to reach a consent determination in this matter:

the enormous resources and extraordinary length of time involved in this process could have been avoided, in large part, by the bringing to bear at an earlier time of a focus on the outcomes sought to be achieved and the application of common sense, practicality, proportionality, and flexible, constructive and creative thinking …

Native title claims, in common with most litigation but perhaps also particularly given their character, run the risk of the consuming of resources and time well beyond what is reasonable … Recognition of this fact, and of the need for the kind of focus and approach which I have described, is essential to guard against the repetition of examples such as the present case, spanning not years but decades …^[40]

3.35       These very long time frames are not confined to NSW. In September 2014, the Kokatha claim in South Australia was finalised, by consent, after an 18-year proceeding.^[41]

3.36       Stakeholders representing the minerals sector also emphasised the importance of timely and expeditious resolution of native title claims, and certainty for the wider community.^[42]

Timeliness and just outcomes

3.37       As noted in Chapter 1, just outcomes may take time to achieve. The Australian Institute of Aboriginal and Torres Strait Islander Studies has cautioned against an excessive focus on timeliness, suggesting that ‘sustainable and effective outcomes’ may require time to develop,^[43] and that ‘the integrity of the process requires justice to be prioritised ahead of timeliness’.^[44] Concerns were raised in 2008 by the then Social Justice Commissioner, Dr Tom Calma, regarding the priority given to efficiency, rather than the recognition and protection of native title.^[45] Again in 2012, the Social Justice Commissioner, Mick Gooda, commented on a ‘silent disregard for the fundamental inequalities in the native title system in favour of more efficient outcomes in the rush to finalise settlement of native title’.^[46]

3.38       Graeme Neate, former National Native Title Tribunal President, notes that ‘broader settlements’—settlements that include grants of land, joint management arrangements, or employment and economic opportunities—take longer to negotiate than a ‘bare determination’, but ‘might be much more satisfactory for all the parties’.^[47]

3.39       The ALRC has adopted as a guiding principle that any proposed reforms should encourage timely and just resolution of native title applications.^[48] The potential for changes to the Native Title Act to delay the resolution of native title claims has been taken seriously. However the value of timeliness must not be placed ahead of the fundamental requirement of justice.^[49]

Length of proceedings

3.40       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. However, these figures do not take into account the common occurrence of claims being withdrawn, consolidated and relodged.^[50]

Reasons for lengthy processes

3.41       The ALRC has considered whether the requirements of Native Title Act s 223 (and associated case law) unnecessarily prolong proceedings. The Western Australian Government has suggested that connection requirements ‘are not a significant contributor to delays in the resolution of native title claims’,^[51] and the Chamber of Minerals and Energy of Western Australia has recommended that the ALRC should only make proposals for reform that are based on quantitative, clear and objective evidence.^[52]

3.42       The ALRC has identified multiple reasons for the slow pace of resolution of claims. It is well recognised that data on reasons for delay in court proceedings is difficult to obtain.^[53] While the length of proceedings can be accurately identified, the reasons for the time taken will not usually be evident from court files. Research on this topic is largely based on qualitative techniques, particularly interviews with participants.^[54] The ALRC has also relied on this approach. It is acknowledged that there are limitations to this approach, particularly in light of the duty of confidentiality that legal representatives have to their clients.

3.43       Importantly, as the Federal Court submitted, the causes of delay have changed over time.^[55] In the first 10 years of the Act, there were only 45 determinations of native title. There was uncertainty about the requirements of the Act, and a number of test cases occurred before parties could confidently negotiate consent agreements. The South Australian Government suggested that delays were ‘in large part reflective of the comparative newness of native title within the Australian legal system at the time the claims were lodged, the developing jurisprudence in this area, and the size and complexity of many of the claims’.^[56]

3.44       It was also necessary for representative bodies, claim groups, expert witnesses, government parties and third party respondents to acquire skills and expertise in the area. There have been 268 determinations in the second 10 years of the Act. There is now significantly more certainty around many aspects of the law,^[57] and significantly more of the participants in the system have highly developed skills and expertise—although shortages remain in some areas.^[58] The following matters (in no particular order) have been identified by stakeholders as present-day factors contributing to the length of proceedings.

Capacity constraints in representative bodies

3.45       Stakeholders indicated that the limited resources of representative bodies is a cause of delays.^[59] Cape York Land Council said that ‘financial and capacity constraints definitely pose a barrier for native title outcomes’, causing delay and inadequate engagement with clients.^[60] The Law Society of Western Australia reported that a contributing factor to the long-running case of Banjima People v Western Australia (No 2)^[61] was the limited capacity of the representative body, and the claim was only able to be resolved when the claim group paid for private legal representation from the proceeds of agreements with iron ore companies.^[62]

Establishing native title

3.46       Many stakeholders indicated that the collection, assessment and hearing of evidence in relation to connection is an important reason for the significant length and cost of proceedings.^[63] The Northern Territory Government reported that ‘it had been agreed that the collection of this evidence is enormously resource intensive and has the potential to consume the scarce resources of all parties’.^[64] Justice Barker has also noted that hearings in relation to connection take ‘enormous’ time and costs are high.^[65]

3.47       The Attorney General of Western Australia, the Hon Michael Mischin indicated in 2013 that ‘there could be a hiatus in consent determinations if the rate of research is not increased and connection deadlines adhered to’,^[66] which suggests that the preparation of connection reports may be a bottleneck in the process in that state. The Queensland Government said that until at least 2008, connection reports did not address the issues the state considered relevant, causing delay. The Government noted, however, that after it clarified the principles it relied on in assessing connection reports, the quality of reports improved and the rate of resolution of claims increased.^[67]

3.48       Queensland South Native Title Services (QSNTS) reported that delays are being caused by the state’s recent (August 2013) policy shift on connection requirements, requiring lot by lot evidence of connection.^[68] Cape York Land Council said that, while there is strong evidence regarding connection in Cape York, locating and collating that evidence in a way that meets the state’s connection guidelines is a ‘significant impost’.^[69]

The availability of experts

3.49       Several stakeholders indicated that the limited availability of appropriately qualified expert anthropologists contributed to the length and cost of proceedings.^[70] Anthropologists collect and collate evidence of connection, assist in the preparation of connection reports, and provide expert evidence in hearings. The Federal Court described the scarcity of experts as ‘a constant factor in the causes of delay’.^[71]

Tenure analysis

3.50       As part of native title proceedings, state respondent parties will analyse the tenure in the areas under claim, for the purpose of identifying areas where native title has been extinguished. State governments have advised the ALRC that this analysis is expensive and time consuming and a significant contributor to the length of proceedings.^[72]

3.51       There is some debate as to whether an analysis of current tenure is sufficient for the purpose of a determination of native title^[73] or whether historical tenure analysis is necessary.^[74] There is also debate as to the timing of tenure analysis.^[75] Justice Barker has called for respondents to conduct this analysis soon after the lodgement of a claim.^[76]

Difficulties in negotiations

3.52       Two representative bodies were concerned about delays caused by the state indicating that its connection requirements have not been met, but not specifying what aspects of a connection report are unsatisfactory.^[77]

3.53       One representative body submitted that delays are being caused by the state ‘using the carrot of its consent as leverage to secure agreement on other matters’.^[78] It reported that the state insisted on an Indigenous land use agreement (ILUA) restricting the rights of the claimants, without offering anything of value in return, as a condition of consenting to a determination.^[79]

3.54       A similar concern was raised by the Yamatji Marlpa Aboriginal Corporation in its submission to the Deloitte Review of Native Title Organisations.^[80] This submission reported that the state was seeking to negotiate a ‘complex, whole-of government State ILUA’ at a late stage of the claim process, with ‘little incentive for groups to enter into the agreement.^[81]

Overlapping claims and disputes

3.55       Stakeholders from both claimant and respondent perspectives reported that overlapping claims and intra-Indigenous disputes are significant contributors to the time taken to resolve claims.^[82] Disputes between Aboriginal people sometimes result in a late application for joinder.^[83] These applications can disrupt the progress of a claim towards a consent determination, causing upset, delay and considerable expense for all parties.^[84]

3.56       Some of the reasons for disputes and overlaps are discussed in Chapter 8. Toni Bauman has reported that there is an ‘urgent and unmet demand for skilled and experienced native title ADR [alternative dispute resolution] practitioners, including Indigenous practitioners’.^[85]

3.57       In some jurisdictions, the state respondent will not negotiate towards a consent determination over land subject to an overlapping claim.^[86] Cape York Land Council ‘has expended considerable time, resources and funding in recent years attempting to mediate disputes’. Even where this mediation is successful, delay is inevitable, as is the diversion of resources towards the dispute and away from other claims.^[87]

Capacity constraints in government bodies

3.58       Some non-government stakeholders indicated that state government resources are stretched by its obligations to conduct settlement negotiations,^[88] assess connection^[89] and undertake tenure analysis.^[90]

Novel claims

3.59       One stakeholder noted that delays may be caused by ‘claims for novel or unusual rights that are unsubstantiated’.^[91]

The right to negotiate

3.60       Two stakeholders noted that because the Native Title Act gives significant procedural rights to groups with a registered claim, there may be a reduced incentive to speedily progress the claim,^[92] particularly if there is a risk the claim will fail.

3.61       Negotiating with proponents can absorb a great deal of the claim group’s time, energy and resources. A group and their representative body may not be able to simultaneously undertake the work involved with a claim, resulting in delay.