9.40 In this section, the ALRC poses several questions regarding the power to conduct a native title application inquiry under the Native Title Act. Under ss 138A–138G of the Native Title Act the Court may direct the National Native Title Tribunal (the Tribunal) to hold an inquiry into matters or issues relevant to a determination of native title. The outcomes of the inquiry are non-binding, but may provide guidance to the parties or the Court.
9.41 The inquiry process may be beneficial in native title proceedings. However, the process appears to have been rarely used. The questions in this chapter seek stakeholder views on possible reforms to ss 138A–138G that may increase the use of inquiries.
Overview of the inquiry process
9.42 Sections 138A–138G of the Native Title Act make provisions for the Tribunal to conduct a native title application inquiry. These sections apply where the Federal Court has referred proceedings to mediation under s 86B, 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.
9.43 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. 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; and
- the applicant agrees to participate in the inquiry.
9.44 An inquiry may cover more than one proceeding and more than one matter. 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.
9.45 Following an inquiry, the Tribunal must make a report, stating any findings of fact. The Tribunal may make recommendations in the report, but these recommendations do not bind the parties. 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.
Question 9–7 Would increased use of native title application inquiries be beneficial and appropriate?
9.46 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’. 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’.
9.47 Despite the potential of the inquiry process, it has, to date, been underused. The ALRC is aware of only one example of the process being used. The ALRC is therefore seeking views on whether increased use of inquiries would be beneficial, and if so, what measures may lead to increased use of the process. To this end, the ALRC asks several questions about possible reforms which may increase the use of the process.
Requirement for an applicant to agree to an inquiry
Question 9–8 Section 138B(2)(b) of the Native Title Act requires that the applicant in relation to any application that is affected by a proposed native title application inquiry must agree to participate in the inquiry. Should the requirement for the applicant to agree to participate be removed?
9.48 The Court may only direct the Tribunal to hold an inquiry if the applicant agrees to participate in the inquiry. Consideration might be given to the removal of this requirement.
9.49 The requirement that the applicant agree to the inquiry reflects the intent that the inquiry process be voluntary. The Explanatory Memorandum to the Native Title Amendment Bill 2006 (Cth) noted that:
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.
9.50 The Federal Court’s power to refer proceedings to alternative dispute resolution (ADR) does not require the consent of the parties, except in the case of referrals to arbitration (which may result in a binding decision). The native title mediation process itself does not require the agreement of the applicant (or any other party). Given that these ADR processes are useful despite not requiring the consent of parties, the inquiry process might have value even without the agreement of the applicant.
9.51 This proposal 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’. The same may be true of parties to the inquiry process.
Evidence gathering powers of the Tribunal
Question 9–9 In a native title application inquiry, should the National Native Title Tribunal have the power to summon a person to appear before it?
9.52 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) of the Act, this power does not apply in respect of a native title application inquiry.
9.53 The powers of the Tribunal could 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.
9.54 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.
9.55 Empowering the Tribunal to summon a person to give evidence or produce documents would alter the voluntary nature of the inquiry process. If s 156(7) of the Act was repealed, and the Tribunal summoned a person to give evidence or produce documents, a failure of that person to attend the Tribunal or to produce the required documents would be an offence under ss 171 and 174 of the Act, respectively. However, the desirability of retaining an entirely voluntary inquiry process may need to be balanced against any benefits of strengthening the Tribunal’s powers.
Application for inquiry orders by non-parties
Question 9–10 Should potential claimants, who are not parties to proceedings, be able to request the Court to direct the National Native Title Tribunal to hold a native title application inquiry? If so, how could this occur?
9.56 A direction for an inquiry may only be made on the Court’s own motion, at the request of a party, or at the request of the person conducting the mediation. Other persons who are not parties to proceedings are unable to request a direction for an inquiry. In particular, non-parties who are potential claimants are not able to request an inquiry.
9.57 However, potential claimants who are not parties to proceedings may nevertheless have significant interests in claim areas. One way for potential claimants to represent their interests in native title proceedings is through joining proceedings as a respondent. However, an application for joinder by a potential claimant, and the introduction of an additional respondent in proceedings, may result in delays and increase costs for all parties.
9.58 In some cases—for example, where there is a dispute about claim group membership—it may be appropriate to allow potential claimants to seek a direction for an inquiry. This would provide potential claimants with an alternative to a formal application for joinder as a respondent in proceedings.
Other reforms of the inquiry process
Question 9–11 What other reforms, if any, would lead to increased use of the native title application inquiry process?
9.59 In addition to the specific questions above, the ALRC is interested in stakeholder views on the inquiry process. In particular, the ALRC is interested in whether or not the inquiry process would be useful to parties to proceedings, and what, if any, barriers there are to the use of the inquiry process.
Native title application inquiries are distinct from other types of inquiries that may be conducted by the Tribunal, including special inquiries under s 137 of the Native Title Act. This chapter is concerned only with native title application inquiries.
Native Title Act 1993 (Cth) s 138A.
Ibid s 138B(1).
Ibid s 138B(2)(a).
Ibid s 138B(2)(b).
Ibid s 138G.
Ibid s 140.
Ibid s 141(5). The state, territory and Commonwealth Ministers may elect not to participate.
Ibid s 163A.
Ibid s 86(2).
Chief Justice Robert French, ‘Lifting the Burden of Native Title: Some Modest Proposals for Improvement’ (2009) 93 Australian Law Reform Commission Reform Journal 10.
Lovett on behalf of the Gunditjmara People v State of Victoria  FCA 474 (30 March 2007) .
Native Title Act 1993 (Cth) s 138B(2).
Explanatory Memorandum, Native Title Amendment Bill 2006 (Cth) [4.278].
Federal Court of Australia Act 1976 (Cth) s 53A(1A).
The Court is required to refer an application to mediation unless the Court considers that mediation is unnecessary, that there is no likelihood of the mediation being successful, or that the applicant has provided insufficient information in their application: Native Title Act 1993 (Cth) s 86B(3).
James Spigelman, ‘Mediation and the Court’ (2001) 39 Law Society of NSW Journal 63, 65.
Explanatory Memorandum, Native Title Amendment Bill 2006 (Cth) 4.308.
Native Title Act 1993 (Cth) s 138B(1).
See Ch 11.