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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS - 16/04/2009 - Native Title Amendment Bill 2009

CHAIR —Good morning and welcome. Thank you for making the trek over to be with us today. We have your submission, which is No. 3. Do you wish to make any changes before you give us an opening statement?

Mr Neate —There was one typographical error on pages 2 and 14 of our original submission. The reference to section 86B(2) should have read section 86BA(2). The secretary of the committee was informed of this error and the committee was provided with a corrected copy of the submission, which may be the one that is before you.

CHAIR —Thank you. I now invite you to make an opening statement.

Mr Neate —The National Native Title Tribunal welcomes the committee’s invitation to appear in relation to the committee’s inquiry into the Native Title Amendment Bill 2009. The tribunal’s written submission deals with only the proposed amendments set out in schedule 1 to the bill. The tribunal makes no submission in relation to the other parts of the bill. In this opening statement I will not cover the points made in the submission about particular amendments; rather I will outline the broader issues of concern to the tribunal about the policy and practical operation of what is proposed.

The tribunal supports a flexible native title system that encourages more negotiated settlements of native title claims. The tribunal wants the system to work better for all participants and for the broader community. The tribunal is keen to see the operation of the system improve. The tribunal submits, however, that the amendments proposed by schedule 1 to the bill are too far-reaching and might operate to impede meeting the Australian government’s policy objective, as described in the Attorney-General’s second reading speech on the bill, of ‘achieving more negotiated native title outcomes in a more timely, effective and efficient fashion’ and contributing to ‘broader, more flexible and quicker negotiated settlements of native title claims’.

Broadly speaking, the tribunal is concerned that, because individual judges will have broad discretionary power about who will conduct mediation, the system or processes may become ad hoc or fragmented, less efficient and potentially more expensive to the Commonwealth. We are also concerned that there could be confusion and lack of clarity about the respective powers and functions of the court and the tribunal, especially the extent of the court’s capacity to direct the tribunal to do things and possibly to allocate tribunal members to mediate particular matters and to direct how mediation is to be conducted, which raises legal and resource issues. There are issues about how mediators other than the court or the tribunal are to be identified, paid and supported administratively and with specialist geospatial, research, legal and other resources.

The amendments suggest a likely fragmentation of the current regional approach to planning and case management. The amendments fail to acknowledge that the tribunal offers a range of mediation services including specialised flexible multidisciplinary agreement-making teams that are created according to the particular requirements of individual claims and can call on a range of geospatial, research and legal resources. The reasons for those concerns are discussed in this written submission.

The proposed amendments in schedule 1 have the potential to marginalise or remove the tribunal from the mediation of native title applications. The tribunal has considerable experience, expertise and commitment to offer the native title system and it is important that these attributes be fully utilised in the future. Whether or not the Australian government intends the marginalisation or removal of the tribunal from mediation of applications, the legislation would allow that to occur, with a range of potentially adverse and expensive effects on an inherently challenging native title system, which in large part is funded by the Commonwealth.

The current scheme clearly identifies the respective roles of the court and the tribunal. When both institutions work in a coordinated and cooperative manner, timely and effective native title and related outcomes—that is, broader settlements—are achieved. The tribunal considers that the current scheme for the mediation of native title claims should be retained and its operation improved. There is evidence that the current scheme produces positive outcomes. For example, there is only one native title claim, as I understand it, in trial before the Federal Court at present—the Torres Strait regional sea claim. Two other applications are on appeal to the full court. All the determinations made in 2008 and this year that native title exists were made by consent of the parties. Those determinations were in Queensland, Western Australia and South Australia and some were over extensive areas.

Much will depend on how the scheme, if enacted in the form set out in the bill, is administered by individual judges of the court. In the absence of a consistent coordinated national approach by the court to the management of native title applications, the concerns summarised earlier and outlined in more detail in this submission may well be realised. The tribunal accepts, of course, that the Australian government decides its policy in relation to native title and develops legislation to give effect to its policy. The tribunal will work to the best of its ability to implement whatever changes the parliament makes, as it has done in relation to numerous amendments to the act over the past 15 years.

To that end, the tribunal is in discussions with representatives of the Federal Court about the implementation of the proposed scheme. The tribunal will continue to work closely with the court to administer that scheme. However, it should be clearly understood that even in these circumstances claims can take years to resolve, particularly if there is a broader settlement of claims, which may include, for example, land grants under state or territory legislation and joint management of conservation reserves. It should also be understood that there are numerous factors that delay the resolution of claims, most of which will not be met by the proposed amendments to the act, and which require a broader reappraisal of the operation and structure of the native title system, including behavioural changes. I look forward to the questions of the committee.

Senator TROOD —Thanks for appearing today, Mr Neate. I wanted to gain from you some insight as to the discussions that you have had with the minister about these proposals for change. They clearly affect the tribunal. Have you had discussions with the minister about it?

Mr Neate —I was advised of the announcement of the proposed changes immediately prior to them—the day before. Subsequent to that announcement, the tribunal made a written submission in response to the government’s discussion paper, which was published in December last year and to which responses were requested by February this year. I subsequently met with the Attorney in the company of my registrar and some of his advisers. On 23 March this year—that is, after the amendments were introduced into the parliament—the Attorney met with members of the tribunal, me and the registrar at our regular members meeting. We discussed with him his aspirations for the scheme and some of our concerns as outlined in the submission.

Senator TROOD —You had some discussions prior to the announcement of the amendments but you were advised of them, what, a moment before or—

Mr Neate —To be clear, the Attorney rang me the day before the announcement and advised me of it.

Senator TROOD —I see.

Senator SIEWERT —To be clear, which announcement?

Mr Neate —The announcement in October. I think that it was 17 October, when the policy was announced. We had not had discussions about it. The Attorney—

Senator TROOD —So you had not had discussions with the Attorney about the amendments that are in this bill?

Mr Neate —No, not prior to the announcement of the policy.

Senator TROOD —So there was not any consultations with you as the president of the tribunal about these?

Mr Neate —No.

Senator TROOD —I see. It strikes me as curious, Mr Neate, that you, as the president of the tribunal and the person perhaps most intimately knowledgeable on the matter, were not consulted by the Attorney about the changes. Did you have extensive discussions, perhaps, with the Attorney’s department about the proposed amendments?

Mr Neate —When the Attorney rang me to advise me of the proposal, he said that officers of the department would ring me subsequently to give me more detail about it. But this was really by advising me of what was about to be announced.

Senator TROOD —Did they? Did the officers subsequently—

Mr Neate —Yes.

Senator TROOD —How much time elapsed before they—

Mr Neate —It was later that day—that is, the day before the announcement. That is from memory.

Senator TROOD —But prior to that you had not had any substantive consultations with the Attorney or the Attorney’s department about these changes?

Mr Neate —No.

Senator TROOD —I see. Is it fair to say that it took you by surprise?

Mr Neate —Yes.

Senator TROOD —Okay. Perhaps we can take that up with the Attorney, or his department anyway, a bit later in the day. These changes proposed some substantial amendments. And it not long after the bill was already amended. That is true, isn’t it? It was two years ago.

Mr Neate —Yes. The Native Title Act was amended by two amending bills, both of which took effect in 2007.

Senator TROOD —What has been the impact of those bills on the work of the tribunal and on the resolution of native title claims?

Mr Neate —Those bills expanded some of the powers of the tribunal and more clearly differentiated the respective functions of the court and the tribunal. Various things happened immediately in response to those amendments, many of which are procedural but have had an effect on the conduct of mediation. The former Attorney-General published quite detailed tribunal mediation guidelines, which the tribunal has made available to parties appearing before us in mediation. I issued a whole range of procedural directions covering the effect of the amendments, including procedural direction No. 9 which gave my members and staff very clear directions about resolving what we saw as the key issues holding up claims—namely, the resolution of 10 issues; making sure there was a proper program for the preparation, analysis, presentation and mediation of connection material; programs for reducing the number of respondent parties to claims to only those with a relevant interest; and the resolution of disputed overlapping claims.

We implemented a detailed national case-flow management scheme to identify which matters were in substantive mediation and which matters needed more resources and perhaps capacity-building to move them to a point where they could be substantively mediated. We enhanced our regional planning program. It was already in operation, but we are now able to work more closely with the court and, in particular, the Commonwealth government departments, the funding agencies—FaHCSIA and the Attorney-General’s Department—as a basis for using the power, under the act, of providing the court with regional mediation progress reports and regional mediation work plans, which we have been providing regularly to the courts in various states and regions. We have exercised our power to appear before the court and to assist the court in making appropriate programming orders and so on, and indeed to make appropriate orders to the tribunal about the conduct of mediation in relation to those claims.

The registrar of the tribunal performed the statutory requirements of re-registration testing many of the claims that had failed the registration test previously or had not been registration tested. Where claims failed the merit provisions of the act, that was reported to the court and the court subsequently struck out, I think, in excess of 20 of those claims. So the list has been reduced to that extent as a direct result of the amendments. We have also published two national reports. Building on our extensive national overview, we have published national reports on the state of the native title system. If it will assist members of the committee, I have copies of the latest one with the latest statistics and a review of the past year.

In substantive terms, as I mentioned in my opening statement, there have been a number of determinations of native title in the past few years. I have not checked 2007 but in 2008 and 2009 all determinations that native title exists have been made by consent. The concerns which the tribunal expressed in our submission around the 2007 amendments about the cost and delay of litigation were certainly well founded at that time. But the trend now is that matters are settled. As far as I am aware, the only matter that is currently being heard, as I mentioned in the opening statement, is the Torres Strait regional sea claim. In the last week or two the court has set down the Jabiru town-site matter for hearing later this year, but that is essentially on extinguishment issues, as I understand it. So, basically, matters are being settled by consent.

Senator TROOD —So the amendments that came in a couple of years ago have provided the tribunal with the capacity to be able to do some things that it was not previously able to do. From what you have said, you seem to have taken advantage of those amendments to facilitate the work that you have responsibility for. Has anything emerged as a result of those amendments or the work of the tribunal which you think this bill is going to address? In other words, have some particular issues or problems emerged which, in your view as the president of the tribunal, require attention?

Mr Neate —Senator, if I understand your question, the system is not perfect, but the sorts of issues that arise in the end will not either necessarily be addressed or be addressed at all by procedural changes; that is between the court and the tribunal. There are real issues about, for example, the appropriate preparation and presentation of connection material to establish whether people have native title or not. Now, there is a prior question as to whether connection material actually needs to be prepared in each case, and that is a matter that the Attorney has raised on occasions and with which I have publicly expressed agreement, and whether a more interest based approach should be taken to the mediation of many matters by the key participants—something else which the tribunal has identified and supported.

If I can give just one example in relation to that matter. When we were preparing our National Case Flow Management Scheme around the time of the 2007 amendments, we did a survey of claims currently in the system. From our analysis it appeared that just under 20 per cent of the claims then in the system had had connection material of some sort prepared—not necessarily adequate for the purpose but prepared at all—and, in respect of another six per cent of the claims, it was decided that connection material was not necessary. That meant that in about 75 per cent of the claims there was no connection material prepared, but the claims were in the system. Now, unless that material is necessary for the resolution of the claim and is being prepared to an adequate standard, those claims are not going to progress towards a negotiated outcome, which is the preference of the tribunal, the government, the court and, presumably, the parties. And that in turn depends in large respect on available resources.

I note a recent newspaper article where one representative body has been advertising for anthropologists to assist in a major regional project. If good people sign up for that, it means there will be fewer people available in the country. And one of the judges in Queensland directed some lawyers, I think last year, in some matters to put in affidavits saying how quickly claims could proceed if they had unlimited resources, because they were not proceeding quickly enough. I saw one of those affidavits, where the lawyer said: ‘I’ve made inquiries; I just can’t get anthropologists available to do the work. If I had all the money in the world’—and I am paraphrasing here—‘it would not move things along.’

Senator TROOD —But your point is that the speed with which claims are resolved and the means by which they are resolved are less matters of the kinds of procedures that are already in place of prior to these amendments than the need for the challenges of evidence and connection, which has always been a problem for native title. Is that a fair summary?

Mr Neate —Yes. That is a fair summary.

Senator TROOD —Okay. This bill seems to provide the Federal Court with a greater degree of or overall control over the native title process. Is that a fair summary?

Mr Neate —The government’s stated objective, as I understand it, is to give the court a more central role. I suppose my analysis, for what it is worth, would be that since the 1998 amendments to the act the court has had that central role—and quite properly for constitutional reasons, as outlined briefly in summary in our submission. Prior to 1998, all native title applications were lodged with the tribunal and did not go to the court unless they could not be settled. For constitutional reasons, the act was amended in 1998 so that all matters at all times were matters before the court. The court holds directions hearings, it refers matters to us and it either requests reports from us or receives reports from us about the progress of mediation. The court sometimes makes quite detailed orders about what it wants to happen in mediation in terms of us developing timetables with the parties and then reporting to the court on progress against those timetables. We can request orders from the court to hurry people along or, indeed, request that the court direct that mediation cease. So, in my view, the court has, and has had since 1998, a central role in the conduct of the proceedings.

The amendments made in 2007 made it clear that, for so long as an application was with the tribunal for mediation, the court was not to mediate it, and that was to avoid the perception and on occasions the reality that matters could be in mediation before two bodies at the same time. But, that issue aside—which clearly identified the respective roles of the court and the tribunal at a particular time—I would say the court has and actively plays a central role in the conduct of these matters.

Senator TROOD —These amendments seem to give the court an enhanced centrality in the position, at least in relation to the capacity to deal with members of the tribunal. For example, it seems as though it gives the court the capacity to direct matters to individual members of the tribunal, apparently without consultation with you. Is that correct?

Mr Neate —Perhaps I will make two responses to that. Firstly, the main, substantive change that is proposed, as I understand it, is to give the court the capacity to choose who mediates. That is, the court could do it itself, it could refer matters to the tribunal for mediation or it could refer matters for mediation to some other appropriate person or body. So the court is directing who mediates, and in that sense its capacity to control the proceedings is enhanced in terms of who conducts the mediation, including whether the court does it itself. Beyond that, in respect of the mediation claims, I am not sure that the court’s power is greatly enhanced.

As to the more specific point you have raised, it just is not clear to us the extent to which the court may be able to choose who from the tribunal mediates. The court can have regard to the skills and so on of people within a body—and I presume we fall within the category of ‘a body’—who might mediate. It is not clear to me whether a judge might want to express a preference, for example, or even direct that the matter go to the tribunal for mediation by a particular member. I just do not know, and we will have to see how that works, but if that is the case—and arguably it is open in the way the bill is drafted—that could pose some real difficulties for me in the administration of the tribunal.

Under section 123 of the act, the president directs which members mediate which matters and what other forms of assistance are provided. Of course, we are focusing in these amendments on the mediation of claims, but the tribunal mediates and arbitrates in respect of future acts and provides Indigenous land use agreement assistance and so on. So members are used for a whole range of work. If it were the case that the court was able to, in effect, select which members did what, that would limit the exercise of my discretionary power as to which members were allocated to matters but also limit who could do other work.

If, for example—and I am extrapolating from this point—certain members became flavour of the month, if I can use that expression, with the court, then that would mean they could not be used on other matters where their skills might be as well if not better suited. I am in the position at the moment with a membership of nine where the options for redeploying people are perhaps more limited than they have been in the past.

Senator TROOD —I see. So you can see the force of the argument that the court might appoint the tribunal, as such, as a mediator and leave the determination of which of your members undertakes that responsibility, but you are concerned about the possibility that the court might, as it were, be able to reach into the tribunal, identify particular individuals and give them particular responsibilities, without consultation with you.

Mr Neate —In the former circumstance, where the court simply refers the matter to the tribunal, that would be, if I can put it this way, the status quo. I would allocate members appropriately. Indeed, as part of the regional allocation of matters now, it is fairly clear which members are likely to take particular matters. But, depending on the stage which an application has reached in mediation, I can supplement that member or indeed replace that member as the need arises. So I have a deal of flexibility, which has proved very useful in recent times, in being able to supplement or replace a member with other members in particular circumstances where I have that flexibility. I would be concerned, for reasons of practice, apart from any legal niceties, if the court were able to reach in and, in effect, nominate which member was to do what.

Senator TROOD —It would seem to undermine your authority as the president.

Mr Neate —It would certainly fly in the face of the operation of section 123 of the act, yes.

Senator TROOD —It would also seem to be inconsistent with the Attorney’s declared view that there should be a high degree of flexibility in the system to make it work more effectively. But maybe I misunderstand the Attorney’s intent there. One of the significant reforms proposed here is that these mediators be appointed by the court. What do you understand that to be? Who are these mediators? What do you understand their qualifications to be and, most importantly, who is going to pay for their activities? Do you have any sense of that?

Mr Neate —On the last part of your question, that is an issue we have raised squarely in our submission. Really, this is not a matter that one would expect the legislation to deal with, but it is a practical matter. We are heading into the next four-year budget cycle. The government did a lot of work last year on how the native title system will be resourced, all of which proceeded before the announcement of these amendments. So I am not sure where the resources are coming from. I am assuming that if the court were to engage people other than its own officers or the tribunal then the resources would come from the court.

As to the qualifications of people, the bill seems to leave it fairly broad so that the court can look at the relevant qualifications of people to carry out the tasks that the court wants undertaken. I think there are a range of practical issues here. One is that the court will be able to refer part or the whole of a matter to a person or body for mediation. It may be that the matter itself is then broken up into segments—somebody deals with a particular issue and somebody else deals with another issue. Who those people will be from time to time will certainly be a matter for an individual judge to decide. One of our concerns is that when matters are referred to us generally, we can develop a regional strategy obviously in conjunction with the court directed by court orders and so on which have regard to the respective resources of the parties and can put some sort of system in place. The tribunal have within our specialist staff people with geospatial skills, research skills, legal skills and so on that we can put together in an agreement-making team to manage each stage of an application. Our concern is that if these matters are hived off to individuals or bodies particularly for particular segments some of that overall coordination of a particular claim and then the coordination of that claim with a broader region may be disrupted and indeed there may be duplication or fragmentation of services, which in the end could become more expensive to the Commonwealth rather than less so. I am speculating here. We have yet to see how the legislation would work.

Senator TROOD —I put it to you that these are concerns that you have brought before us because the bill is not clear on these matters. The declared intention of the legislation might not have the consequences that are hoped for, given the absence of certain provisions in the bill. At the very least, there are some things that need to be clarified. You are raising some concerns; you are not necessarily saying that the objectives are not good ones, but there is lack of clarity on how they are going to be achieved.

Mr Neate —I trust I made it clear in my opening statement that the tribunal is not concerned about the objectives—reaching more flexible, quicker and better outcomes. What we are saying is that those outcomes can be and have been achieved under the scheme as it is and that, if the behaviours of parties were adjusted in some cases and people resourced appropriately to do jobs and there was a really systematic way of dealing with claims, the system could be improved in the current scheme to produce the very sorts of flexible outcomes that the government, the parties, the tribunal and perhaps the court aspire to.

Senator TROOD —I have one more question. Overall, what has the record of the tribunal been in settling these native title claims compared to the court?

Mr Neate —That is perhaps an invidious comparison to have to draw and in a sense not comparing like with like. The tribunal has had the principal conduct of these matters in mediation in recent years. I know that in the court submission to this committee the court gives some examples of where it has conducted alternative dispute resolution apparently successfully, and I do not take issue with that. To take a broader look at these matters, where the court has been closely case managing matters, including matters which have come out of mediation before the tribunal and not referred to the tribunal as most of the matters in the Northern Territory are, the court has experienced the frustration of people not complying with court orders and court programs that the tribunal has experienced over some years. Similarly, there was a recent written decision from one of the judges in relation to a Queensland matter—and I can give you the citation if you wish—where the judge recites years of failure to comply with court orders and in effect says, ‘I’m finding it difficult to know what to do to move this matter along.’

In saying that, I am not being critical of individual judges or of the court generally. What I am saying is that there are matters within the system that make claims very difficult to resolve and move along, and, even where the court is case managing matters very closely, as I would imagine it would under the amendments, they are not necessarily moving at any greater pace than they might under a joint mediation

Senator TROOD —It is not obvious that the court is having any more success in achieving these outcomes than the tribunal has been where these questions of evidence are in debate.

Mr Neate —Again, without saying we are comparing exactly like to like, the judges are expressing that they find considerable frustration in some areas moving matters along even when they are closely case managing the cases, in particular where the tribunal no longer has a role to play.

Senator SIEWERT —I will pick up where Senator Trood left off and look at the number of cases you currently have on your books. You give some examples of where mediation has resolved some cases, but how many cases do you have on your books and on average how long does it take to settle a case?

Mr Neate —I will attempt to answer your question immediately but I will do so by reference to the tribunal’s recently published national report, which includes figures as at 31 December last year. That means they are a few months out of date, but for these purposes I do not think it will make much difference. An analysis of the 145 applications which were the subject of registered determinations between 1 January 1994, which is when the act commenced, and 31 December last year shows that the average time span for determining an application by consent was five years and 11 months; the average time span for obtaining a litigated outcome was six years and 11 months; and the average time span for obtaining an unopposed determination—and they are usually non-claimant applications in New South Wales—was 12 months.

Of the 477 claimant applications which were current at 31 December last year, 99 had been filed in the five-year period 2004 to 2008; 247, or 52 per cent, had been filed in the five-year period 1999 to 2003; and 131, or 27 per cent, had been filed before 1999.

CHAIR —Before you go on, Mr Neate, I have brought with me your Talking Native Title newsletter which was issued in March this year. That says that there are now about 473 native title claimant applications in the system. You quoted 477; this says 473.

Mr Neate —Yes.

CHAIR —Just for the record, is this correct? It does say that the tribunal predicts that, based on the national rates averaged, all the claimant applications will not be resolved until about 2035.

Mr Neate —Senator, that was our estimate a year or two ago. I do not think anything has occurred dramatically that would change that but can I say a couple of things in relation to that figure. Firstly—

CHAIR —It was your estimate a couple of years ago, but you reprinted it in your March newsletter, just last month.

Mr Neate —Yes, and I am saying that that has not been significantly revised because there have not been dramatic changes since. I am saying a number of things. Firstly, there has been a steady decline in the number of matters in the list—and, in fact, the figure I got yesterday was 472. The total number of claims in the system is dropping over time. Some of those are being struck out or withdrawn, others are being determined by a determination that native title exists and new claims are coming in. That projection was also based on the assumption that a number of claims would be made in the years ahead, not simply that there is a fixed figure that reduces over time.

The other thing I would say about the figure is that it is the figure nationally and that in some parts of the country claims are being resolved much more quickly. For example, on current progress all the claims in South Australia north of Port Augusta are likely to be resolved within, say, the next five years. That will leave a large region with all the claims sorted out. In the Torres Strait pretty much all the land-based claims were resolved quite some years ago. Once the Torres Strait sea claim is resolved, essentially that region will have had native title resolved.

The rate of disposition varies from region to region and state to state for a whole range of local reasons. The figure we were projecting was based on the total figure of claims currently in the system and expected to come into the system over the next few years nationally, but there will be substantial regions of the country where native title will be sorted out in the next few years.

Senator SIEWERT —I suppose the point is that there are a large number of claims still in the system—

Mr Neate —Yes.

Senator SIEWERT —and that many people see the current system as being too slow, ineffective and, most importantly, not delivering outcomes for TOs. If you have concerns with these amendments, what things should be done to address them? I think there is general agreement that the current system should not continue in the way it is progressing because it is too slow and not delivering. What should be done?

Mr Neate —One thing I think would be useful to do—and we are doing this in matters that are in active mediation—is sit down with the parties early on in the process and say to applicants in particular, ‘What are you hoping to achieve out of the process?’ If they want to achieve a determination of native title then one would proceed down a particular track, and that could include preparing connection material and so on. If people, in light of experience and good advice, say that what they want is actually something other than that—they want a say in how a national park is managed and so on—then we talk about that.

Senator SIEWERT —My understanding of these amendments is that this process would enable that, or have I misunderstood it?

Mr Neate —It could—

Senator SIEWERT —I understood that that was able to be done under this process.

Mr Neate —It will be able to be done under this process, but my point is that it is able to be done and is being done under the present process.

Senator SIEWERT —But the point is that the process is not working. It is really slow. We have just agreed that there are a lot of applicants, it is too slow and it is not delivering.

Mr Neate —It is slow, but it is delivering.

Senator SIEWERT —I think a lot of people would disagree with you on that.

Mr Neate —Perhaps the claimant groups who have been successful would not.

Senator SIEWERT —And there are a whole lot who are still in the system who would most definitely say it is too slow and it is not delivering.

Mr Neate —Indeed. As I said earlier, many of those groups are groups for whom insufficient or no connection research has been done. Some state governments are saying, ‘Until you have done your connection material, we do not want to sit down and talk to you.’ You do not get to first base until that work is done. Whether the new system will expedite that remains to be seen. There are a whole range of reasons why that material has not yet been prepared. I made the point earlier that it may not be necessary to have that material if what the applicants want and what the state governments particularly are willing to talk about is something other than a native title outcome. I have certainly been encouraging people to talk about that in the current mediations as well.

All I am saying is that the changes are not necessary to encourage that discussion. The amendments may encourage that discussion, but they are not necessary to do so because those sorts of discussions occur now. We would all like to see quicker outcomes and some of the expense and delay which is incurred by particular requirements of some parties removed so we can get to the real issues sooner. I have no problem at all with that policy objective.

Senator SIEWERT —You raised the issue earlier about people not complying with orders et cetera. The amendments, as I understand them, also allow the court to take action if parties are not acting in good faith. How often do you come across parties not acting in good faith?

Mr Neate —The 2007 amendments introduced the good faith provisions, so they are there now.

Senator SIEWERT —But this allows the court to—

Mr Neate —If I may explain: we have the capacity to report to the court—or, indeed, the funding agencies—if people are not behaving in good faith. We have not had to do that. The mere existence of that capacity and a few chats outside mediations has meant that people understand that those provisions do have some teeth and we have not had to make those reports. People’s behaviour has been modified because those provisions are currently there. I do not understand that the amendments to the act will make any difference on that point, except that mediators generally will be able to report to the court absence of good faith. Well, at the moment, we are the mediators and we have had that capacity and we have not had to exercise it because people have come into line. Indeed, the mediation guidelines that the previous Attorney-General published made that clear.

Senator SIEWERT —You have raised issues around the court being able to appoint people in the tribunal, outside your authority. Could that issue be overcome by requiring the court to liaise with you, with the tribunal, before appointing someone?

Mr Neate —If the amendment allows the court to reach in and nominate a particular member, then I would certainly prefer it if the court did consult with me first. If the amendment is not read by the court in that way and the court simply appoints the matter to the tribunal on the basis that I will appoint a suitably qualified member, then the issue does not arise. I am just saying that the provision of the act is a bit ambiguous on that point, and I am not sure to what extent the court will want to influence the allocation of particular members. If the act does allow that, then, yes, it would help if I was consulted.

Senator SIEWERT —In terms of allowing mediators that are outside of the tribunal, do you have specific problems with that? Or do you think that would speed up the process?

Mr Neate —I do not know that it would necessarily speed up the process. It depends on what those people are engaged to do. If we can take, for the purpose of this discussion, the point that you and I have just been discussing—that is, even with the best will in the world and with close cooperation between the tribunal and the court, it takes some years for claims to move to resolution—then one of the challenges for the court in administering this is finding people who are suitably qualified and available to work through those processes for as long as it takes. The tribunal exists and is resourced to do that. We can call on a range of resources internally and, if need be, externally because I can engage consultants to see a matter through from start to finish, working in close cooperation with the court, so I do not see how the amendment in itself would necessarily speed things up. It may do in a particular case, but I do not think, of its own effect, it would necessarily achieve that outcome.

Senator SIEWERT —Can we just go back to the issues of connectedness and connection material. How many claims are—I know you said it before, but I missed writing it down—delayed because of the onus of proof?

Mr Neate —The figures I mentioned earlier are now a couple of years old—perhaps I should conduct a similar survey—but I think that 19 per cent of the claims in 2007 had had some connection material prepared. Six per cent of the claims, and I think they were probably primarily South Australian claims, were proceeding to a negotiated outcome without the requirement for connection material because there was some other outcome being negotiated. And the rest of them either did not have connection material or a program to prepare it, or there was some program in mind but the material had not been prepared. That meant that about 75 per cent of the claims had not been researched to a point where, say, a state government would sit down and have substantive negotiations, confident that they were dealing with the right people.

A related issue to that, and it is more apparent in some parts of the country than others, is the extent to which there are disputed overlapping claims between neighbouring groups, which themselves cause delays in negotiated outcomes because many respondents say, ‘Look, we’re happy to negotiate outcomes once that dispute between neighbouring groups is sorted out.’

CHAIR —Mr Neate, you mentioned consultation. I am assuming that you put in a submission to the proposed native title amendments discussion paper that was launched in December 2008?

Mr Neate —Yes.

CHAIR —In the Attorney-General’s second reading speech, when this bill was introduced into parliament, he outlined the objectives of the legislation and said:

This change is in line with consistent stakeholder feedback.

It is also in line with the government’s position in opposition. I am not asking you to comment on policy; I am just highlighting to you that if you look at the content of the Attorney-General’s second reading speech, he indicates this is in fact legislation that reflects the current government’s policy position. Did you provide some feedback to the discussion paper?

Mr Neate —Yes, we put in a submission in February this year I think. I do not have a copy with me.

CHAIR —Is it similar to the submission you have given to this inquiry?

Mr Neate —From recollection, it would have covered many of the same areas. Unfortunately, Senator, I did not think to bring it with me today. My recollection is that we would have raised similar issues, yes.

CHAIR —I also wanted to ask you about proposed schedule 5. I know you have given us comments today mainly about schedule 1, but this is about amendments to rep bodies. Do you have any comments about those amendments?

Mr Neate —No. I understand the objective of the government is to make the process simpler and more efficient. I am not in a position to say whether it will have that effect or not. I am certainly not suggesting that it will not. I am not qualified to comment on those provisions.

Senator SIEWERT —You may want to take this on notice. Earlier, when we were talking about how claims were being resolved, you said some were moving faster than others. Is there a common theme to the ones that have been moving faster? You talked about the ones in South Australia. Is that because the South Australian government is cooperating more? Is it because they do not deal with issues of, for example, mining? Are there common threads?

Mr Neate —There is a range of factors. The most recent consent determination in South Australia involved a whole range of parties with a whole range of interests, including, I think, exploration and mining companies. It was over 41,000 square kilometres of country. It has to be said that in a number of recent determinations, the court and the tribunal have worked very closely with the court—pushing parties and the tribunal along and us reporting regularly to the court and working, as we would apprehend it, in accordance with our respective statutory functions—with the court putting pressure on the parties and the tribunal to produce, and us responding. Also, it has to be said that where there is a proper prioritisation of claims, claims are not all being dealt with at the same pace but there is some reasonable order in which things are being done having regard to the respective resources of the parties. Again, with close management from the court and close mediation from the tribunal, they are the sorts of factors that can move things along. But really there has to be a willingness of parties to sit down and negotiate and not put things off—and to put appropriate resources into those mediations.

Senator SIEWERT —I have one more question, which relates to appropriation resources. It goes back to the issue of connectedness, which we were talking about earlier, and claims going in that do not have enough material. Is that because there is a lack of resources to help people actually get that material, or is there some other reason?

Mr Neate —The figures that I read to you earlier from our national report show that a large proportion of the claims were lodged before significant High Court decisions in, for example, the Yorta Yorta and Ward cases were delivered and before substantial amendments to the act were made. Many of the claims were lodged many years ago, before people could possibly have understood what sort of material would be required to get their claim over the line. Claims that come in these days are much better prepared, ordinarily pass the registration test and, in that sense, are more focused on the legal requirements, and people can sit down and negotiate. It is the older claims, which were never in a form that would satisfy the current legal requirements, that have to be brought up to speed. A number of those, as I mentioned earlier, have been struck out because they have failed the registration test on a couple of occasions and there is no real prospect of them moving in that form. They may be relodged in the future—that is, claims over the same area by the same groups may be relodged in better form—but a lot of the old claims just were never prepared to conform.

Senator SIEWERT —But those claims are not part of that statistic of 472, are they?

Mr Neate —No. The 472 remain in the system.

Senator SIEWERT —But I presume they are the ones that you are using for the statistics around the claims that do not have enough connectedness material.

Mr Neate —Yes, indeed. In terms of resources, I would simply make the point that this is not just about money; it is about having qualified people who are available to do the work.

Senator SIEWERT —I used ‘resources’ in the broader sense.

Mr Neate —Yes. I just wanted to make sure we had a common understanding of that. And it is about trying to ascertain in which of those claims, for there to be a practical and acceptable application for the parties, it is really necessary for a high level of connection material to be done at all. If it is not, then let’s put those limited resources into those claims where connection material is necessary, not waste time and resources preparing reports which in the end are not beneficial or facilitative of the outcome.

Senator TROOD —On the matter of expeditious resolution of claims, I think you said that the tribunal now has nine members; is that right?

Mr Neate —Yes.

Senator TROOD —Is that more that it has had in the past? Is it less than it has had? How does that compare to the numbers that have been on the tribunal over a period of time?

Mr Neate —I think I mentioned in our last annual report—and I think we had slightly more last year—that this is the lowest number for a full year since the tribunal was established.

Senator TROOD —What was the peak that you had?

Mr Neate —I think in the early days it may have been up around 25. A number of those were part-time members; a number of those were serving judges of the Federal Court. But the number has reduced steadily over the years. It is now lower than it has been previously.

Senator TROOD —So you now have fewer members than you have ever had?

Mr Neate —Yes.

Senator TROOD —With regard to the point you make on page 13 of your submission, about the mediator’s right of appearance before the Federal Court, you currently have a right to appear before the Federal Court; is that right?

Mr Neate —Yes.

Senator TROOD —So one of the consequences of this amendment is that you will lose that right to appear. That is my understanding of your submission.

Mr Neate —Yes. As I understand the amendments, the court might permit the mediator, be it us or any other mediator, to appear but the mediator will not have a right to appear. We currently have a right to appear.

Senator TROOD —But the particular entitlement that the tribunal has, with its expertise, is going to be lost as a result of these amendments?

Mr Neate —Unless the court invites us to appear on each occasion.

Senator TROOD —But you will not have a statutory right of appearance, will you?

Mr Neate —No.

CHAIR —Mr Neate, could you clarify something for me. You said that at one stage you had 25 members of the tribunal?

Mr Neate —I think that is right. If that is wrong, I will—

CHAIR —Was that full-time and part-time?

Mr Neate —A number of those were part-time members—they were full-time judges of the Federal Court who were also part-time members of the tribunal. I have figures that I could provide to you on an annual basis as to how many part-time, full-time, presidential members we have.

CHAIR —That would be useful. The 25 would have been in what years?

Mr Neate —Probably the late nineties.

CHAIR —How many do you think you have now?

Mr Neate —I know I have nine.

CHAIR —For how long has it been nine?

Mr Neate —Since February this year.

CHAIR —And last year?

Mr Neate —It would have been 11. One of my member’s term expired in February this year, and in July last year another member resigned.

Senator TROOD —They have not been replaced?

Mr Neate —No.

CHAIR —Perhaps you get us those figures.

Mr Neate —Certainly.

CHAIR —But I am assuming that since the late nineties the numbers have diminished and have not been replaced for a number of years—is that correct?

Mr Neate —No, there have been replacements and reappointments at various times. You will see the statistics; if needs be, I can provide you with the names. People have come and gone, some have been replaced, some have had their terms extended.

Senator TROOD —But the overall numbers have declined.

Mr Neate —Yes.

CHAIR —Thank you for your time this morning. It is much appreciated.

Mr Neate —Thank you, Senator.

[11.47 am]