Consent determinations

9.17       Once a native title application has been made and the parties determined, the Federal Court refers the application to mediation between the parties.^[19] The purpose of mediation is to assist 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.^[20]

9.18       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’).^[21]

9.19       The diversity of sources of evidence reveals the complexity and difficulties in proving the elements of native title. Preparation for the hearing of an application for a determination of native title requires extensive collection of factual material including affidavit evidence by native title claimants. For consent determinations, claims typically require ‘connection reports’ as part of developing ‘agreed facts’ between the parties. The amount of documentary material accompanying a claimant application varies from claim to claim. Whether the matter is ultimately resolved by a consent determination or litigation, there will typically be voluminous documentation provided to the Court and parties as the Court’s management of the case proceeds.

9.20       For example, Cape York Land Council submitted it is

confident that most Cape York claim groups are able to meet current connection and authorisation requirements, but the time and expense required to do so means that the claim process continues to be lengthy and that means that other groups have to wait for long periods for their areas to be progressed.^[22]

Concurrence

9.21       Native title proceedings require the applicant to provide detailed factual evidence relating to connection and claim group membership. Compiling such evidence typically will require significant resources and the extensive use of experts, such as anthropologists. The amount of factual material required, as well as the sequence in which it is provided, may lead to inefficiencies in native title proceedings. For example, a complete connection report may be required before a state or territory respondent prepares a tenure analysis.^[23] The preparation of a connection report or a tenure analysis may be a laborious, time-consuming and costly process.^[24] Some costs might be reduced if, for example, a tenure analysis was made available at an early stage.^[25]

Best practice principles

9.22       A clear and transparent Commonwealth policy position on its responsibilities and interests with respect to connection as a party to consent determinations may assist in the resolution of claims.

9.23       Practically, such a document may guide the Commonwealth’s involvement in developing the ‘agreed statement of facts’ for consent determinations pursuant to ss 87 and 87A of the Native Title Act.

9.24       A Commonwealth policy should be consistent with the object of the Act to recognise and protect native title and reflect international best practice.^[26]

9.25       For a consent determination, variations exist from jurisdiction to jurisdiction in terms of what evidence the state or territory requires in order to pursue a consent determination. North Queensland Land Council noted that

some 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.^[27]

9.26       In recent years, there has been a departure from the large-scale documentation provided to support a consent determination, which typically may be similar in extent to that filed in litigation.^[28] A number of submissions to the Inquiry highlighted the conciliatory nature of parties’ relationships in negotiating native title matters. For example, South Australian Native Title Services stated that ‘we have established positive relationships with successive State Governments and other respondent parties to resolve native title through negotiation and consent’.^[29] The Northern Territory Government submission detailed the cooperative approach taken to developing processes to streamline the resolution of pastoral estate claims.^[30]

9.27       However, 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’.^[31] 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’.^[32]

9.28       Connection guidelines shape assumptions about appropriate evidence and standards. Queensland South Native Title Services highlighted the perceived problem for the applicant:

It has to be said our clients go to considerable lengths, and a lot of resources are expended on their behalf, to prepare connection material evidencing their native title for delivery to the State … The problem as it appears to us is that a client’s connection material has been prepared on the basis, amongst other things, of meeting Connection Guidelines prepared and required by the State for the purposes of reaching a negotiated agreement on native title. That in and of itself is problematic as it raises questions about the extent to which the connection material is implicitly shaped by assumptions within the Connection Guidelines about appropriate evidence and what standard of connection will be acceptable as indicative of connections between the claim group and the land.^[33]

9.29       However, the Queensland Government does not support a ‘substantive revision of the connection requirements’ given ‘the high rate of resolution of native title claims in Queensland over the last five years notwithstanding the existing connection requirements’.^[34]

9.30       Queensland South Native Title Services 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.^[35]

9.31       The Northern Territory Government submitted that legislative change is not necessary because significant reform has been achieved through ‘principles of negotiation agreed between the Territory, the native title party through the representative bodies, and stakeholders.’^[36] 

9.32       Nationally consistent principles may not be appropriate given the specific state and territory interests, and the diverse nature and content of native title around Australia. However, it may be useful to develop or collate existing best practice principles which may be advanced in all jurisdictions with respect to consent determinations.

9.33       For example, the Australian Government may choose to include relevant best practice principles for native title consent determinations in the Legal Services Directions 2005 (Cth). Schedule 1 of the Legal Services Directions 2005 (Cth) contains the Commonwealth’s obligation to act as a model litigant.^[37]

9.34       There are Guidelines for Best Practice which were developed by the Joint Working Group on Indigenous Land Settlements for Flexible and Sustainable Agreement Making which may serve as a platform for reform.^[38] These Guidelines were 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.^[39] The Guidelines emphasise early negotiation, cultural awareness and sensitivity and adherence to model litigant principles including good faith negotiations such as not relying on technical defences unless it would result in prejudice, not taking advantage of a claimant who lacks resources and demonstrating leadership to influence the behaviour of other parties.^[40]

9.35       The ALRC invites comment on these questions relating to the promotion of consent determinations.