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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
National Native Title Tribunal annual report 2000-01
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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Mr JOHN COBB
ACTING CHAIR (Senator McLucas)
ACTING CHAIR (Mr Snowdon)
National Native Title Tribunal annual report 2000-01
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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
(JOINT-Tuesday, 25 June 2002)
Content WindowJOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND - 25/06/2002 - National Native Title Tribunal annual report 2000-01
CHAIR —I declare open this public meeting of the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund and welcome you all. As you know, the committee prefers all evidence to be given in public, but should you at any time wish to give your evidence, part of your evidence or simply answers to specific questions in camera, you may make application to do so and the committee will give consideration to your application. I would point out, however, that evidence taken in camera may subsequently be made public by an order of the Senate. I now invite you to make some opening remarks about the committee's inquiry into the tribunal's annual report 2000-01. At the conclusion of your remarks I will invite members of the committee to submit questions to you.
Mr Neate, before we start, can I draw to your attention that this will be the last meeting at which our distinguished secretary, Mr Peter Grundy, is with us. After 13 years, Mr Grundy is retiring at the end of this month. I know that all members of the committee will be very sorry to see him go, and I am sure that you will notice his departure as well. I thank Mr Grundy for his 13 years of service to the Senate, in both the environment committee and the native title committee. I know that all of the members of the committee will join with me in recognising the contribution that he has made.
Mr Neate —Thank you, Chair. Might I commence by congratulating you on your reappointment as chair of this committee and congratulate Senator McLucas on her appointment as deputy chair of this committee. As president of the tribunal, I look forward to working with the committee as we continue to carry out our separate but related statutory functions under the Native Title Act. Today's appearance before the committee is in response to its invitation to give evidence in relation to the tribunal's annual report for 2000-01. I note that in a letter to me dated 7 June this year, Chair, you stated that the tribunal's evidence in this hearing may be used by the committee in preparing its report to the parliament under section 206(d)(i) of the Native Title Act, which concerns the effectiveness of the tribunal. As the tribunal's annual report is a formal and public means of describing the tribunal's effectiveness, and as the committee has a statutory duty to report on the tribunal's effectiveness, it is entirely appropriate that today's hearing be considered as part of the preparation of the committee's broader report. The tribunal would appreciate the opportunity to respond in detail, closer to the end of that exercise, to the specific submissions received by the committee concerning the tribunal's effectiveness.
In the absence of the Native Title Registrar, Mr Chris Doepel, who is on recreation leave, I am accompanied, as has already been observed, by Mr Chevis and Ms Schoen. We will be happy to answer questions that members of the committee have in relation to the tribunal's annual report. I had already noted, as you will see, Madam Chair, that as this is likely to be the last opportunity for me to publicly acknowledge the work of committee secretary Peter Grundy before his term ends, I would like to record that Mr Grundy has assisted Mr Doepel and me in a most professional and courteous manner in all our dealings with him in relation to the work of this committee, and I wish him well in his future vocation.
CHAIR —One of the issues that has come up in the evidence that we have taken over the past few years has been the resources that are available to some of the rep bodies. I am reminded particularly of evidence given by the Kimberley Land Council in relation to the scarcity of resources which they told us was interfering with their ability to negotiate some of the claims. I am wondering, Mr Neate, whether you have any views on resources to rep bodies and whether that has played out in any way in relation to your dealings with the rep bodies.
Mr Neate —In the annual report, and in particular in my overview to it, I have touched on the question of resource use and the implications of resources for agreement making. In particular, from page 27 onwards, and I think somewhere earlier in that overview, I simply note that, as a prelude to the answer. I have said in this annual report, and I think in at least one previously, that the proper resourcing of all the main participants in the native title process relative to each other is essential for the system to work effectively. If, for example, representative bodies are inadequately resourced such that they cannot attend to all their statutory functions at an appropriate level, clearly that will impact on a range of things. For example, as more and more claimant applications are registration tested, notified and referred back to the tribunal, with a direction by the Federal Court for the tribunal to mediate, there is more pressure on representative bodies who represent Indigenous native title claim groups to arrange research on behalf of those people, to facilitate people's attendance at meetings and so on.
At the same time, in some parts of Australia at least, there is increasing pressure on Aboriginal people to negotiate various forms of agreement for exploration and mining activity and for major public works. Whether those negotiations are initiated under the right to negotiate regime of the Native Title Act or are the subject of ILUA negotiations under the Native Title Act, or indeed some other form of agreement making, representative bodies then have to decide where to put their resources. Do they, for example, respond directly to the perhaps pressing commercial and other needs of people to negotiate particular forms of agreement or do they prioritise the resolution of claimant applications so that, once it is clear who the native title holders are for an area, the other forms of negotiations can flow perhaps more smoothly?
This is an ongoing issue, but I should say that, whilst the tribunal is well aware of it pretty much on a daily basis, it is not now confined simply to representative bodies. State governments, who are the first-named respondents to every claimant application, are already finding themselves stretched in being able to actively participate in the number of claimant applications which are currently in mediation, and the volume of that work will increase steadily over the next few years. So we are all in a situation where we have to strategically plan for the use of our resources and, as I keep impressing on people, communicate with each other so that we are not separately deploying resources in different areas and not getting a proper match.
That is perhaps a longer answer than you were seeking, but the short answer is simply this: yes, there are resource pressures on representative bodies. Some of them speak to me directly about them. Those resource pressures arise in a range of circumstances and they directly affect people's capacity to work. The representative body you mentioned a moment ago came to see me at one stage. They were concerned that, as they had four matters in the Federal Court in trial, they might not be able to adequately represent their clients at trial. They certainly could put no resources into the mediation of the other matters that, in the broader sense, were in the list. They were concerned that they might be seen to be not performing their functions in relation to the other groups, and might be criticised for that, but they simply did not have enough resources to fight the matters in trial, let alone be engaged in the mediation of other matters. So this is an ongoing issue.
The level of resources available to the key players is, of course, a matter for government to decide, but the point that I have stressed in this and earlier annual reports is not so much the quantum of resources available to any particular institution but the relativity of those resources to each other. If, for example, the Federal Court is well resourced but representative bodies are not, or the tribunal is well resourced relative to some other parties, we can proceed as vigorously as we would want to, to pursue our statutory functions, but not have others able to participate as fully as they might because they are not resourced to do so.
I make another supplementary remark, which again is taken up in this annual report: when people talk about resources, the tendency is to talk about funding and to focus the debate on annual budgetary allocations. The resource issue is much broader than that. There is an increasingly pressing concern about the lack of ready availability of some forms of professional advice for parties generally. It is an issue which I raised with this committee on another occasion. There are only so many qualified and experienced anthropologists in Australia who can be drawn in to participate in this work, either on behalf of Indigenous groups or engaged by governments, mining companies, pastoralists and so on, to assess the strength or otherwise of a particular group's application and—whether they give sworn evidence or not in any proceedings—to contribute to the overall resolution of a matter. Similarly, although perhaps less dramatically, there is a need to ensure that the legal assistance that is engaged by people is assistance from people who actually know what they are talking about and can give competent technical and practical advice to the participants. So there are human resources issues which are not just dependent on money. You could have plenty of money but still not be able to get the anthropologist whom you need for a year or two because they are booked up.
The third resource issue, which also at times is relevant, is time. If the Federal Court has imposed particular deadlines to be met, you have to have the money and the technical expertise to pull things together within a particular time frame. Sometimes the only additional resource people would like is a bit more time to conduct a further round of negotiations, to have another mediation meeting or to consult more broadly to come to a better outcome. A range of resource constraints affects not only representative bodies but also a range of other parties.
CHAIR —Has the tribunal been able to do anything to help in these sorts of matters—perhaps coordinating meetings so that only one lot of air fares is needed for a series of meetings?
—We have been trying to take a number of initiatives, including in the current financial year, which build on initiatives we have taken in previous years to enhance the capacity of other institutions to do their job better. It is not for the tribunal to fund representative bodies out of our budget allocation to do their jobs. If, however, we can hold training seminars and provide printed information to train people in the requirements of the act or the procedures which the tribunal has adopted, that will assist representative bodies and others to do their job more effectively and more efficiently with the resources available to them, and hence help us do our job better. So we are actively looking for opportunities to enhance the capacity of other parties to do their job better.
CHAIR —You mentioned in your answer to my first question that it is not only rep bodies that are short of resources. I am reminded of Winton, I think it was, in Queensland, where we took evidence from the small opal miners of Queensland. They were complaining about the delays in the state government's native title office in Brisbane. They were actually complaining not only about the distance but also about the resources. Is that a common problem, and has the tribunal been able to do anything about that aspect of negotiation?
Mr Neate —It is certainly the case that in those states which are actively seeking to reach negotiated or mediated outcomes rather than litigating—and that tends to be fairly common throughout Australia now—governments who actively espouse that sort of policy then have to work out where they are going to put their resources. For example, in a state which is very resource rich and where you want to encourage mining, you may well want to deploy your resources in encouraging, say, indigenous land use agreement negotiations to facilitate small mining, large mining, exploration and so on. That sort of activity goes on. That varies not only from state to state but also from time to time as state governments' priorities shift. Within that broader policy of wanting to settle matters by agreement, a government still have to work out which matters they want to settle by agreement, and in which order.
In terms of the prioritising issue which you raised earlier, in Queensland—which is where I live—I have personally taken active steps with my member colleagues and senior staff of the tribunal to facilitate negotiations or discussions between the state government, the tribunal and each of the representative bodies in Queensland to develop a scheme whereby we jointly work out agreed priorities in programming claimant applications. We have yet to present the proposed scheme to the Federal Court. For this scheme to really work effectively, the court will at least need to acknowledge and perhaps tacitly, if not expressly, support some prioritisation matters. If the state were to say, `We only have so many resources and we can only resolve so many claimant applications per year throughout the state, but we are happy to sit down with representative bodies and make sure that we're focusing on the same claims that the representative bodies are focusing on,' and if the court makes orders which insist on activity being carried out in relation to other matters, of course people will seek to abide by the orders of the court.
So we are seeking to facilitate a much more coordinated prioritisation program. Whether that is all going to work in practice is yet to be seen. I might say, however, that in Western Australia this is already happening in a fairly practical sense. Circumstances are different in other states, but certainly in Victoria there is a very closely coordinated approach between the state, the representative bodies, the tribunal and the court to make sure that matters proceed very smoothly through the system. So there certainly is that capacity for prioritisation between the major participants, and we are actively involved in that.
CHAIR —I see pressure on resources being a bit of a theme within the Native Title Act, because on page 28 you refer to your own pressure on resources in the tribunal as well.
Mr Neate —This is where I think one does not talk so much about absolute levels of resources but about their levels relative to others. If, for example, there were twice as many members of the tribunal as there are now and we were potentially able to conduct twice as many meetings and so on, there would be no point in that if the rep bodies, the states or the other parties were unable to attend the meetings. That is why I am monitoring very regularly where the pressure points are around the country. As members' terms expire or as needs arise for the appointment of additional members, I talk periodically to the Attorney-General about our needs, both as to the number of members and as to the sorts of skills we are looking for. So one is constantly trying to see not only where the pressures are but also where they are likely to be in the foreseeable future to make sure that we have adequate resources to deal with them and that members, particularly, have the appropriate skills.
Senator McLUCAS —Going to the issue of time, you were talking about the three resource constraints that you have. Is there anything that the tribunal can do in those situations, when you are dealing with the court, to stop that pressure on complying with their requirements in terms of time?
Mr Neate —There are a number of things which we can do and which are happening. As you may know, Senator McLucas—and as I think I set out in some detail in this overview—the individual members of the tribunal who have carriage of particular claimant applications report to the court periodically on the progress of mediation. The mediation process, as you are well aware, is conducted on a private, without prejudice basis. Unless the parties expressly agree to the content of those negotiations being disclosed to the court, they simply report to the court about progress—the number of meetings that have been held and whether we see prospects for a mediated outcome and, if so, within what sort of timetable.
The court, whilst not bound by the recommendations of the tribunal, I think generally pays very close regard to our recommendations. So if, for example, we say, `This matter is progressing, but there are a range of issues which are affecting the pace at which it can proceed. We recommend that we report back, say, in six months time,' then the court usually says, `All right, report back in six months time.' So by providing an independent and, I trust, impartial but well-informed report to the court, we can influence the programming orders that the court makes in relation to specific matters. That is at the individual case level.
The Federal Court has developed a practice over some years now of holding, from time to time, what they call `user group meetings'. Sometimes these user group meetings are held at a state or regional level—ordinarily at a state level. They are not very frequent, but they happen perhaps once every few years, depending on which state you are in. This is an opportunity for people who are regularly involved in native title matters to appear in a less formal setting before the court and explain the current landscape of native title and the sorts of pressures that are affecting an individual party's capacity to do their work. I think this gives the court a much broader overview of where things are going and, perhaps collectively or corporately, can influence the thinking of the court.
The Federal Court in October last year held a national user group meeting in Adelaide, at which the Chief Justice of the Federal Court and a number of other justices were present. Each of the representative bodies, I think, were represented, as were each of the state and territory governments and the tribunal and others. This was a very important occasion for people to put—I would have to say very clearly and very forcefully—the sorts of constraints that they are under and the sort of direction that they would hope the court would take in managing this list. That was, I think, very useful from the participants' points of view to convey to the court what the real pressures are within the system. But it also provided the court with a very useful opportunity to convey to the parties the constraints within which the court believes it is operating.
It is clear to me, from reading a number of decisions of Federal Court judges—sometimes in making procedural decisions—that the court believes that there is a public interest in the timely resolution of native title applications. Coupled with the court's pride in its own efficiency as being a very effective court in disposing the rest of its case load over quite a wide jurisdiction, the court is still working through the implications for its case management of this new creature called native title, which almost always is much slower and, in many respects, more complex than the range of matters that the court has historically dealt with to date.
So the court is trying, on the one hand, to move things along at a reasonable pace, reflecting its own desire to deal efficiently with the cases before it and that broader public interest that it perceives in the timely resolution of native title issues, whilst, on the other hand, recognising that there are certain resource constraints on representative bodies and state governments as common respondents in these situations, as well as others, moving along any more quickly than they are at the moment. So that tension is still there and, at a very practical level, it is still being sorted out. But there are opportunities on a case specific basis for the tribunal to inform the court about the progress of things and to suggest some time lines, and in a more collective sense at user groups both at state and federal levels for the court to get a comprehensive view of things.
Senator McLUCAS —You said that those user group meetings happen from time to time. I know it is not within the purview of this committee but could we look at having them more frequently or on a more regional basis? It seems to me to be a very sensible way of sharing information.
—The timing of user group meetings, as I understand it, is essentially at the discretion of the provisional docket judge responsible for native title in each particular state. Some judges have chosen to have user groups more often than others, and I think that reflects a greater or lesser degree of enthusiasm on the part of some judges for holding such user groups and perhaps their view about the overall utility of such meetings for the court as well as the participants. Perhaps that, with respect, is not something over which this committee—nor indeed I as president of the tribunal—will have much influence, but I do encourage the judges from time to time to hold them.
Mr Chevis —In some states the judges also have meetings at a regional level. Western Australia is a case in point, where there is a discussion about a group of applications which are in mediation.
Senator McLUCAS —Thank you. The other issue is that of the availability of good human resources, and we did talk about the availability of qualified and locally qualified anthropologists at our last meeting. Have you seen any change in our ability to access qualified anthropologists over the last year?
Mr Neate —I really cannot answer in a way that one might say is statistically valid; I hear occasional anecdotes around the traps which may or may not reflect the real situation. Certainly, the better known, better qualified and perhaps more experienced anthropologists are in high demand, so if people want those particular anthropologists to act for them they have to find a time when those people are available. I would imagine that as some matters go into trial that will tend to tie up the resources of lawyers, anthropologists and others more comprehensively than some mediation work does. But I cannot give you a clear quantitative answer to that question.
I do know that anthropologists, as a discipline, are taking an increasingly professional approach to this and are running courses and seeking to inform themselves about the sorts of skills they need or the challenges they face in this process. That is not something that has happened in the last year or so; they have been working on it for some time. I think there is an appreciation within the anthropological discipline that people who engage in this process need to know what they are about and what the demands are.
Mr JOHN COBB —Mr Neate, I have noticed—as I guess we all have—your desire for greater resources, namely funding. But I would have thought that, as these things become clearer—and you mentioned here that decisions are happening which are clarifying the issues—it should become easier, rather than more difficult, to get them through and that they should become less complex and therefore cheaper, rather than the other way around. Are you taking into account the fact that we can expedite, rather than the opposite, because of previous decisions?
—I am taking that into account. But one has to appreciate that the bulk of the work is still ahead of us. I will give you the sheer numbers and then explain why one cannot just do an arithmetical exercise. As you would be aware, we have just marked the 10th anniversary of the High Court's decision in the Mabo case. Eddie Mabo and his fellow plaintiffs in that case in essence took 10 years to get that decision. In the subsequent 10 years there have been 30 determinations around the country that native title exists. Of those, 24 have been reached by agreement. So there is an increasing preponderance of outcomes that native title exists by agreement. There are a number of other determinations that native title does not exist, and some of those have been, at the very least, unopposed. The most notable example, which is the subject of the trial, was the Yorta Yorta case, which is on appeal and has been heard by the High Court, but the court has reserved its decision in that case.
All of that is to say that we are increasingly resolving these issues and are increasingly resolving them by agreement. However, as of the last few days, there are something like 599 claimant applications somewhere in the native title system. About half of those are formally in mediation. Others have yet to be registration tested or notified or sent back to us by the court. So you will see that, whereas 30 matters have been resolved to date, there are approaching 600 or so that remain to be resolved. Let us say they all stay in the system or the number remains around that level, there is much more work to be done in the future than has been done in the past. Even if we as a community become much more efficient and effective in resolving that aspect of our native title work—and this is just claimant applications—it will still take time and resources to do.
There are three very significant test cases currently before the High Court. The first, Mr Cobb, you would be aware, in the case of Anderson v. Wilson, involves the status of Western Lands Division leases in your state and the effect that they have on native title rights and interests in that part of New South Wales. The second is the Miriuwong Gajerrong case, Western Australia v. Ward, which raises numerous grounds of appeal for decision by their honours, including fundamental notions as to what native title is. Is it to be characterised as an interest in land or a bundle of rights? Can you have partial extinguishment or can you only have complete extinguishment? Does it include spiritual and cultural rights or is it merely activities on the land? These are fairly significant issues which remain to be resolved by the High Court. The third decision, which is also potentially very significant in much of Australia, is the Yorta Yorta case, where the Yorta Yorta people, having failed to date to establish that they have native title, are suggesting to the High Court that the trial judge applied the wrong test about connection to the land. Whatever the High Court resolves in that case will affect the mediation or litigation of perhaps many matters in rural and regional Australia, particularly in the eastern states and perhaps in parts of western and southern Australia.
Ms PANOPOULOS —Do we have any rough idea when the court will come out with its decision?
Mr Neate —I certainly do not. The only authority I can cite is an article in the Financial Review the other day that was speculating that the Ward decision might be handed down some time in July or August. I have no idea on what authority the authors of the article in the Financial Review made that suggestion. All I know is the case was argued in March last year, so it has been quite some time that the court has reserved on that. But that decision—which, if the court addresses all the grounds of appeal, will have potentially comprehensive impact on native title issues around Australia, not just in Western Australia—will provide the framework, Mr Cobb, in which negotiations can proceed.
Mr JOHN COBB —If my memory serves me correctly, you do not get involved in court cases and such. You are involved in negotiation and what have you, and these court cases are going to make that clearer and clearer.
Mr JOHN COBB —Why is the process getting dearer? It seems to me that the process, even more than the High Court cases and Federal Court cases, should be becoming, if anything, pretty cut and dried. Unless I am terribly wrong, you do not fund court cases.
Mr Neate —No, we do not, and we are not involved in the court cases. The reason for mentioning the court cases—and I think you alluded to this—is that, once the legal parameters in which native title issues are to be resolved become clearer, one would imagine that parties to a negotiation would have a clearer idea of what can be achieved and what cannot be achieved and would move towards resolution more quickly. That is my hope and, perhaps, expectation.
Mr JOHN COBB —I would agree. Therefore, I would think that your task should become clearer.
Mr Neate —It should become clearer, but let me say this, and I say it with due respect, because you will appreciate this from your rural background: one of the issues that has emerged in Western Australia in recent years is that, even where the law is pretty clear, many of the parties, including the pastoralists, want to be satisfied that the applicants themselves can actually prove that they have got that traditional connection to the land. So matters are going to trial not because the law is unclear but because people want to put the Aborigines to proof that they have maintained the connection to the land and have the rights which they say they have.
Mr JOHN COBB —Exactly, therefore—
Mr Neate —A number of matters which have been resolved by agreement have been referred back to the tribunal midtrial once the Aborigines have given their evidence. The court, of its own impetus, has encouraged the parties to settle or the parties have come to the court and said, `Having regard to the evidence we have heard, we would like the matter referred back to the tribunal to see if we can get a mediated outcome.' So the resolution of legal issues alone will not necessarily speed up the process.
Mr JOHN COBB —As the issues around some of the claims become clearer, the court is going to show what does not constitute association; therefore, there should be fewer claims where association has not been shown.
CHAIR —I think what Mr Neate is saying is that that would enable some foundations for negotiation based on the jurisprudence of some of those outcomes.
—Yes. If, Mr Cobb, a test emerges in the Yorta Yorta case which is sufficiently clear in its practical application that some groups say, `Well, if those are the hurdles we have to overcome, we don't think it's worth progressing our claim, because we don't think we'll win,' then it may be that some applications will be withdrawn. I cannot speculate as to that, because (a) I have not seen what the High Court has ruled, and (b) I do not know whether it will be sufficiently clear from the judgment that you can apply that principle readily to a series of facts and say, `You're more likely to succeed. You're unlikely to succeed; therefore, the best thing to do is just abandon your claim at this point.'
Dr LAWRENCE —I have just a couple of questions. You talked about the question of human resources. I am wondering if you are encountering conflicts of interest in some of the people who might be appearing for various parties. In a relatively small state like Western Australia, I know that allegations have sometimes been made that people are sometimes appearing on both sides of the argument with questionable motives. Can I follow that up, slightly. In at least one case that I am aware of, parties interested in a determination paid a group who would not necessarily otherwise have been a party to negotiations in order to have them present material. Have you seen that sort of thing happening very often where there are people who are, in a sense, engaging in some game playing in order to achieve outcomes rather than in the interests of the determination?
Mr Neate —I am not personally aware of the examples which you cite, but I can offer a response, if you like, to that.
Dr LAWRENCE —Sure.
Mr Neate —You will appreciate that I am not responding to the circumstances you have in mind.
Dr LAWRENCE —No, I understand and I have not named people or been specific about the instances for that reason.
Mr Neate —From time to time in a whole range of circumstances, people come to me—and I will speak from my own experiences as the member mediating a matter—saying, `Why are these people here? We put in our claim first and this group has put in their claim over ours years later. We were well through the system, but now we are being stymied by them.' Our response in that situation boils down simply to this: we are here to assist parties mediate an outcome. If those sorts of questions need to be asked, then by all means ask them of the relevant parties across the table. If the answers that you get are unsatisfactory, such that the matter cannot be resolved by agreement or the other parties do not withdraw, then we will simply report to the court that there is no prospect of a mediated outcome, and people will know that, if mediation ceases and the matter goes to court, they will have to prove their claim in court. But we have neither the capacity nor the statutory function to deal with those sorts of issues.
That falls rather short of allegations of fraud or criminal misconduct, which is another area again. If things were crystallised in that form, then there might well be other legal avenues that people could pursue. But we have to treat all parties to a mediation as bona fide parties and seek to assist parties to reach agreement on matters which can be agreed or narrow the issues in dispute and the number of parties in dispute and then report to the court on that and see whether, if push comes to shove, people are willing to argue these things out in court.
—My other question is perhaps more fundamental, the question of what occurred in Queensland, where we have now a High Court decision on the future acts regime that basically is saying a number of decisions were invalid. In the case of Queensland Central Land Council Aboriginal Corporation v. Attorney-General for the Commonwealth of Australia and State of Queensland, some of the determinations made—some 30-odd, from memory—were invalid. Is that having an effect on your deliberations elsewhere? It was said at the time that some South Australian determinations might also be in question. Is that true? And is it having any impact on your capacity at the moment to reach some of these agreements or determinations of the tribunal?
Mr Neate —The Queensland alternative state provisions which were challenged in the Federal Court and which were the subject of the decision that you have referred to were provisions which were approved by the federal Attorney-General as complying with the requirements of the Native Title Act, and which the Senate did not disallow and so were operative—or were thought to be operative—from, I think, 18 September 2000 until the Federal Court ruled in February this year that they were invalid. Consequently, for that period, and indeed till today's date, our tribunal has no jurisdiction to deal with those future act matters in Queensland, because the alternative state provisions have operated, albeit we now know ineffectually, to deal with that aspect of native title work. So we have had no role to play.
Now that the Federal Court has ruled that some of those provisions are invalid, the exploration and mining companies in Queensland are, as I understand it, in a position where there is no legal regime, subject to an exception which I will mention in a moment, under which they can secure valid exploration and mining tenements. For so long as the Federal Court decision stands—and it is subject to an appeal which I understand is going to be heard in late August, and of course we cannot predict the outcome of that appeal—for the moment the state laws have been ruled to be invalid so we accept that that is the case. But that does not mean the Commonwealth scheme moves in to fill the void, because the Mineral Resources Act of Queensland was recast to fit a particular scheme. So people, as I understand it, cannot opt out of that scheme and come under the Commonwealth scheme because the Commonwealth scheme does not currently operate.
That is not to say there is no hope. The mechanism which is available, and which I understand some parties are exploring, is the negotiation of Indigenous land use agreements, which would enable some things to occur.
Dr LAWRENCE —Or a simple amendment to the act.
—I mentioned the regime that is currently available. There is of course, looking prospectively, the possibility that either the Commonwealth or the state, or perhaps both, legislatures will act. It is not for me to speculate as to how this might go. I certainly have no idea how the full court will rule on the appeal. It may be, for example, that the state of Queensland would decide not to persist with its own regime and seek to have a Commonwealth regime apply. Indeed, the Premier of Queensland has sought to have the federal Attorney-General make a fresh set of determinations which, as I understand it, would operate prospectively quite legitimately. It would not operate retrospectively to validate those things that have happened in the past, and whether retrospective validation legislation is necessary in respect of those other interests, I do not know. I am just not aware of the number or extent of matters which are or potentially are invalid.
On your other question about what impact this might have for South Australia, I have heard it said, although I have not investigated this myself, that the ground on which Justice Wilcox in the Federal Court found against the Attorney-General's determinations in relation to some of the Queensland provisions may also apply in relation to some of the South Australian provisions. I have not looked into that but I have heard it said. I do not understand that the point has been taken anywhere, so I simply note that. But I am not sure that at the moment that poses a practical problem. Again, that does not affect our capacity to work because there is on foot an alternative state regime in South Australia in relation to which we have no function.
Mr SECKER —On a different issue, has the tribunal engaged any former members to carry out any mediation or other tribunal functions?
Mr Neate —If you look at the list of consultants in appendix VII on page 156, you will see that one former member, Kim Wilson, was engaged to complete a task which was completed with great satisfaction for all the parties in relation to the Arakwal people's negotiations for a national park, which is stage 1 of their native title application. Members of this committee might recall that in October last year there was a ceremony at Byron Bay in New South Wales where the New South Wales Premier announced the creation of the Arakwal National Park, which is the first national park in Australia to be created under an Indigenous land use agreement under the Native Title Act, and under which agreement the Arakwal people gained freehold title to some parcels of land in Byron Bay. Part of the contractual arrangements with Mr Wilson were that there would be a handover period involving a member of the tribunal. That has since happened and Mrs Ruth Wade now has carriage of that matter. She is assisting the Arakwal people and the state and other parties at the next stage of the Arakwal people's broader native title application.
The second former member—who is now again a current member—who was engaged as a consultant was Mr Geoff Clark, whose term, as you will see from the `President's overview', expired in May of the year under review. Geoff was subsequently reappointed a month or so later, but in the gap between his term ending and his reappointment he was in the middle of providing very important Indigenous land use agreement assistance to the Kalkadoon people, the state and a range of mining companies in the Mount Isa region. That exercise, which he had started as a member because he had responsibilities up there, continued to completion in such a way that, when the Indigenous land use agreement was registered by the registrar recently, it opened the way for upwards of 60 exploration tenements to be granted in the Mount Isa region, which is a major increase in exploration activity in the state of Queensland given the difficulties experienced elsewhere.
Mr SECKER —What was the cost of those two consultancies?
—The contract prices and the actual costs in that year are set out in the report. Although Mr Clark was contracted to be paid $14,000, he was not in fact paid anything in that financial year; he was paid subsequently in this financial year, and no doubt that will be reported in our next annual report. Mr Wilson's contract, which was for the price of $15,900, was not paid in the financial year but subsequently the sum of $7,150—about half of what the contract price was—was paid to him in the current financial year.
CHAIR —Mr Secker, before you ask your next question, regrettably I have to do whip's duty now, so I am not able to be here for the remainder of the hearing, but Senator McLucas, as deputy chair, will take over. I thank the witnesses very much for their attendance today and for, as usual, the very professional way in which they give us as much information as they do. Thank you very much, Mr Neate, and thank you, Mr Grundy. I will now pass over to Senator McLucas as deputy chair.
Mr SECKER —Thank you, Madam Chair. Mr Chevis, could you outline the nature of the breaches of the Australian Public Service code of conduct by tribunal employees which occurred during the past financial year? What sanctions have you, as a tribunal, imposed in relation to those breaches?
Mr Chevis —I can give you the general details, but the actual details of the breaches are confidential. The breaches related to compliance with the APS code of conduct and values. These were investigated either by tribunal staff or by a consultant employed by the organisation. Where a sanction was applied, it was, once again, in accordance with the general nature of sanctions that would apply in those circumstances. In one case, there was an appeal to the Public Service and Merit Protection Commission about the nature of the breach and the sanction, and the decision of the tribunal was upheld. That is the general detail.
Mr SECKER —I need something more specific. I do not need names but I think we, as a committee, have a genuine right to be aware of what the breaches were and how they were dealt with.
ACTING CHAIR (Senator McLucas) —I think it might be difficult, Mr Secker—
Dr LAWRENCE —It is not a very big organisation.
ACTING CHAIR —for our witnesses to provide information, given that they are talking about a small number of people. We do not want to identify these people in any way.
Mr SECKER —So does that mean that if there are more people you can give more detail? With respect, Madam Acting Chair, I do not find that logic acceptable. I believe that, as a committee, we may get questioned about this issue at some time. We do not have to know who or what place, but we do have to know the general nature of the breaches so that we are aware of what those breaches were.
Mr SNOWDON —I defer to our esteemed adviser here, but one way of handling this might be for us to accept evidence in camera for the purposes of this particular part of the exercise.
Mr SECKER —I am quite happy to do that.
—Or for us to get a brief which can be made available to us and printed as confidential to the committee.
Mr SECKER —Would the secretary care to comment on that?
ACTING CHAIR —Mr Neate, I wonder if that is as much information as you want to provide the committee with in an open public hearing, and whether or not it might be appropriate for you to provide us with a confidential briefing which we would receive as the committee and hold confidentially.
Mr Neate —Senator McLucas, while you have been having your discussions, we have been having ours. We have been trying to identify between us who the individuals were and that we were not confusing this financial year with the last financial year. It would assist us if we took that question on notice and provided a response to the committee on the basis you have suggested. To assist us, however, I might ask Mr Secker what level of detail he would be looking for. Would it, for example, be sufficient to describe the nature of the alleged misconduct and the nature of the discipline or sanction imposed?
Mr SECKER —That is all I have asked for. I have not asked for names or places in order to maintain confidentiality. For example, if it were raised with me on what has happened, say, with sexual misconduct, I would have to say, `Well, I don't know anything about it until I get some sort of briefing on it.'
Mr Chevis —Okay.
Ms Schoen —We can certainly do broad categories of breaches of the code and sanctions. But I think in identifying states stats, there are issues that I can think of that we would want to make non-identifiable.
Mr Neate —We will attempt to provide what we trust will be an adequate answer to you, Mr Secker.
Mr SECKER —Okay.
—The other question I want to ask is in relation to recent court cases. It touches on the question of resources. It was drawn to my attention—and I have not been able to follow this through, but just by way of example—that in the case of Kennedy v. Queensland, the decision was made recently with Justice Sackville hearing. It was a non-claimant application and the judge found in their case. It seemed initially as if the local Aboriginal people had had no particular interest in it, but on further inquiry we discovered that the Koa people of Bundaberg did not pursue a claim that they had initially put forward, I think in response to the Kennedy claim, because of a lack of resources to deal with that issue. I am conscious of the fact that, in that case, on the one hand you have a representative body with very few resources and they clearly had to make a decision about priorities, and that one lost. It was not that they had no interest, but they had no means of demonstrating it. But, on the other hand, under the Native Title Act, if non means tested funds were being made available to the pastoralists in that case, there seems to me to be clear inequity. When you are talking about the fact that there are some imbalances now emerging, is that the sort of thing you have in mind? As I am sure you would point out, that was not in your tribunal. Nonetheless, it is under the act and has some ramifications for you.
Mr Neate —Dr Lawrence, there has been a good deal of publicity surrounding the outcome in that case. The summary you have given, as I understand it, is quite accurate. The non-claimant application was lodged by Mr Kennedy for the purpose of ascertaining whether native title existed over his property and I suppose really to ascertain that native title did not exist over his property. The Koa people lodged a claimant application in response. They were represented by Gurang Land Council. At a point in the proceedings, they withdrew from those proceedings. Mr Kennedy provided evidence to the court; as I understand it, he volunteered that evidence to the court. But it was evidence which, in the end, was unchallenged and unopposed. In reliance on that unchallenged and unopposed evidence, the judge made a clear finding that native title does not exist in relation to that property.
As you would be aware, Dr Lawrence, a determination of native title is a determination that either native exists or it does not exist. But under the Native Title Act, apart from fairly exceptional circumstances, these are determinations for all time that attach to the land. So, in a broad sense, that particular decision has permanent application for that particular area of land. I am not in a position to speculate because, quite frankly, I do not know—and perhaps, even if I did, I would not say in this forum what the result might have been had the Koa people persisted in their claimant application. It has been reported in the media that the reason they withdrew was lack of resources. Whether they would have succeeded if they had the resources, none of us will know either. It would, however, be a cause of concern if the publicity surrounding the result in that case leads to a flurry of similar non-claimant applications—
Dr LAWRENCE —There was some enthusiasm for that.
Mr Neate —and those non-claimant applications similarly proceed unopposed for no other reason than lack of resources. I am not saying that will be the case and, no doubt, if that situation were to arise, representative bodies would have to make some decisions about that; but certainly that possibility is now open.
ACTING CHAIR (Mr Snowdon) —Would it be possible in those circumstances for potential claimants to then throw themselves at the mercy of the court?
—Mr Snowdon, I refer to section 13 of the Native Title Act, in particular subsection 5, which provides the grounds on which someone might apply to the Federal Court for a variation or revocation of an approved determination of native title. For those purposes, such an application might be made on the basis that (a), events have taken place since the determination was made that have caused the determination no longer to be correct or (b), the interests of justice require the variation or revocation of the determination. To my knowledge, this section to date has not been invoked in any proceedings, because we are still at the early stage in the history of native title in Australia. We have just got the first round of determinations made and, as I say, the general rule is that native title determinations, once made, are made for all time. That is reflected in section 68 of the act which says:
If there is an approved determination of native title (the first determination ) in relation to a particular area, the Federal Court must not:
(a) conduct any proceeding relating to an application for another determination of native title; or
(b) make any other determination of native title;
in relation to that area or to an area wholly within that area, except in the case of:
(c) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or
(d) a review or appeal of the first determination.
The grounds on which such a determination might be varied or set aside are very narrow, and understandably so. Whether such grounds would exist in a case such as the one identified by Dr Lawrence remains to be seen.
ACTING CHAIR —What about the situation where there is a non-claimant application at the court, I am a potential claimant and I rock up to the court and say that I cannot represent myself and I do not have any funds to be represented?
Mr Neate —That would be a situation where the judge presiding would no doubt give due weight to your circumstances and perhaps make programming orders that reflect that. As to what those orders might be, obviously I cannot predict and, indeed, they are likely to vary from judge to judge. I am not aware that that was the case in this case.
ACTING CHAIR —I do not know what the circumstances were.
Mr Neate —I am not sure that the grounds for withdrawing were made known to the court. I think there was simply a withdrawal. It has subsequently been said that the reason for not proceeding was lack of funds, but I am not sure that that was put to the court in those circumstances; hence, the case that you are hypothesising is, in that respect, at least perhaps different from the other.
Certainly the Federal Court is quite used to native title claimant groups, or their representatives, saying to the court, `We're going to have a lot of difficulty complying with these orders because we lack resources,' and the court is dealing with that on a regular basis. Indeed, I touched on that in the annual report under consideration where the court, at that point, had consistently declined to adjourn scheduled starts of hearing dates for trials on the basis of lack of resources. In the current financial year, there have been a number of decisions where the court has in fact granted such adjournments and, I understand, as recently as the last week or so has set aside the scheduled hearing dates of all the Goldfields trials other than the Wongatha matter, which is currently in trial. There had been quite a systematic and concerted attempt by judges collectively, in consultation with the state and the representative body and so on, to set out a trial schedule for many matters over the years ahead. Various applications have been made successfully for adjournments, but I saw in an industry publication the other day, which I trust is correct, that the judges have now set aside all the trial dates—Wongatha is on foot. So the court is increasingly, through the orders it makes, showing that it is able to be convinced that, in certain circumstances, it is best not to press people to proceed.
ACTING CHAIR —Mr Neate, do you want to make a statement in relation to a submission?
Mr Neate —I will offer an observation, which is perhaps of limited response, but I thank you for the opportunity to do so. Submission 1 relates to particular concerns that have been expressed by a representative of the Eastern Yugambeh people about aspects of the conduct of the mediation in a matter in south-east Queensland. The documents which the committee has before it, including documents which were posted on your web site as recently as yesterday, give, as it happens, an incomplete picture of the current state of play. When the initial submission was first posted on the committee's web site, the member named in that submission expressed concern to me that his capacity to mediate in that particular matter had perhaps been reduced or significantly impaired by the publication of that submission. Because the complaints about him were in the public domain in circumstances which, at that point, he was not in a position to respond to, he asked me to make other arrangements in respect of mediation between the two claimant groups.
Some years ago, the Kombumerri people lodged two native title claimant applications in respect of an area of land around the Gold Coast of Queensland. Subsequently, the Yugambeh people have lodged a claimant application which completely covers and extends beyond the area covered by the Kombumerri application, and the two groups have been, as you will have gleaned from the correspondence with this committee, in dispute. The matter had been in mediation before the tribunal for some years, including, I think, by a former member and then by Mr Sosso. I agreed to appoint another member to have carriage of the matter for the purpose of mediating between the two claimant groups. Unfortunately, that other member had to undergo quite serious surgery and was unavailable for some months. I took it on personally and, in a very real practical sense, have had carriage of the matter since late last year.
I have to be somewhat circumspect in what I say from this point because, as the member mediating the matter and given that mediation is conducted on a private, without prejudice basis, I cannot disclose to this committee the content of what has happened. Let me provide you simply with this update. On 30 May this year, I convened separate mediation conferences with the Eastern Yugambeh representatives, including Mr Aird, who is the signatory of the letters to this committee, and another Eastern Yugambeh person. Then later in the day, I had a meeting with representatives of the Kombumerri claimants. As a result of each of those mediation conferences, each group took a position in principle which they saw would provide the means for resolving the matter between the two groups.
I then convened a mediation conference last Friday, 21 June, in Brisbane at which both groups were present, including Mr Aird, and confirmed in the presence of each other their in principle agreement to seek to resolve the matter between them. They then proceeded to develop an agreement about the procedure which they would collectively follow to attempt to resolve these outstanding issues. I am pleased to say that, at the end of that meeting, such a procedure was agreed to between the parties.
I understand that the tribunal has written to the parties this week confirming in writing what they had agreed last week. I trust that, in light of that, they will be in a position to resolve what has been clearly a longstanding disagreement. We have yet to see whether that will happen. But certainly an agreement has been reached between them as to how that might happen. Of course, we wish the parties well in their endeavours.
I do not want to sound too defensive about this, but it was only late yesterday that I was aware of the correspondence with this committee. I was certainly unaware of it when the mediation conferences which I have mentioned were scheduled. The timing of those conferences was entirely independent of any correspondence that might have been sent to this committee and of course preceded the productive outcome of last Friday's mediation conference convened by the tribunal. I should mention, perhaps for completeness, that my colleague whom I have appointed to that particular matter was able to be present on Friday and, if the tribunal needs to be involved at another meeting beyond that, then I would expect that she would take over the carriage of the matter from there.
Mr SNOWDON —Thank you.
ACTING CHAIR (Senator McLucas) —Given that there are no further questions, I thank you very much for coming and sharing the dealings of the tribunal with us and for giving us your evidence.
Mr Neate —Thank you, Senator.
Committee adjourned at 5.22 p.m.