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Native Title Amendment Bill 2009



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Parliament of Australia Department of Parliamentary Services

Parliamentary Library Information, analysis and advice for the Parliament BILLS DIGEST

www.aph.gov.au/library

7 May 2009, no. 124, 2008-09, ISSN 1328-8091

Native Title Amendment Bill 2009

Monica Biddington Law and Bills Digest Section

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

National Native Title Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Further background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

Review of Claims Resolution Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

The future of the Native Title Tribunal’s role in mediation . . . . . . . . . . . . . . . . . . . . . . 4 

Committee consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

Position of significant interest groups/press commentary . . . . . . . . . . . . . . . . . . . . . . . 5 

Financial implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

Key issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

Federal Court as mediator in native title matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

The Court to make determinations beyond native title . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Representative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Main provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Schedule 1 - Amendments relating to mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Part 2 - Application provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

Schedule 2 - Powers of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

Schedule 3 - Rules of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

Schedule 4 - Assistance in relation to inquiries etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Schedule 5 - Amendments relating to representative bodies . . . . . . . . . . . . . . . . . . . . 14 

Schedule 6 - Other amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

Part 2 - Application etc. Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Concluding comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

2 Native Title Amendment Bill 2009

Native Title Amendment Bill 2009

ate introduced: 19 March 2009

House: House of Representatives

Portfolio: Attorney-General

Commencement:

Sections 1 to 3 commence on Royal Assent.

Schedules 1-4, Schedule 5 Part 1 and Schedule 6 commence on the day after Royal Assent or 1 July 2009, whichever is the later.

Links: The relevant links

D

to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Purpose

The purpose of the Bill is to amend the Native Title Act 1993 (Cth) (the Act or NTA) to implement institutional reform to give the Federal Court of Australia (the Court) a central role in managing native title claims. Notably Schedule 1 of the Bill will allow the Court to determine who should mediate a particular native title claim.

Schedules 2, 3 and 4 of the Bill will amend, replace and expand provisions relating to Court procedure and financial assistance for mediations. Schedule 5 seeks to consolidate existing arrangements for the registration of representative bodies. Schedule 6 makes minor and technical amendments to the Act.

Background

National Native Title Tribunal

The National Native Title Tribunal (the Tribunal) was established under the Native Title Act 1993 (Cth). The Tribunal is administered by the Attorney-General’s Department and performs the following functions:

• applies the registration test to native title claimant applications

• mediates native title claims under the direction of the Federal Court of Australia

• provides notification of native title applications and indigenous land use agreements

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 3

• maintains the Register of Native Title C the Register of Indigenous Land Use Agreem laims, the National Native Title Register and ents

future act matters

, such as indigenous land use agreements.1

e title legislative

wledge and understanding of the area.

• makes arbitral decisions about some

• negotiates other sorts of agreements

Further background

This Bills Digest does not cover the background to historical nativ developments. The author has assumed some kno For preliminary reading, see electronic sources such as:

Bills Digest on the Native Title Amendment Bill 2006 •

Bills Digest on the Native Title Amendment Bill 1997 [No.2] •

• Bills Digest on the Native Title Amendment Bill 1996

• Native Title on Wikipedia: http://en.wikipedia.org/wiki/Native_title

Review of Claims Resolution Process

Howard Government commissioned Mr Graham Hiley QC and Dr Ken Levy and make recommendations on, the roles of the Court and the Tribunal in 2

on a key issue about which 4

mmendation to give the Court mediation

licy will not remove the mediation role from the Tribunal entirely; the

In 2005, the to consider, native title mediation. Amendments to the Act were made in 2007 following this review of the claims resolution process. The amendments to the Act in 2007 made it clear that the Court could not mediate while an application was with the Tribunal for mediation.3

In their 2006 review, Mr Hiley QC and Dr Levy had disagreed body should have ultimate control of native title alternative dispute resolution. The Howard Government chose to implement Dr Levy’s recommendation to give the Tribunal an exclusive mediation role with increased powers. The Rudd Government is of the view that this has not worked to create an efficient native title mediation process and has made a policy decision to follow Mr Hiley’s reco powers.5 The po

er detail, can be found on the Tribunal’s website: out-The-Tribunal/Pages/tribunal.aspx

1. This information, and furth http://www.nntt.gov.au/Ab accessed 6 May 2009.

2. Further information about the Claims Resolution Process can be found here: http://www.ag.gov.au/claimsresolutionreview The Report of the Claims Resolution Review can be downloaded here.

3. Bills Digest, Native Title Amendment Bill 2006, p.9, available here.

4. Hiley, G and Levy, K, Report on the Native Title Claims Resolution Process, 2006, para 4.31, p. 24. Available electronically here. Accessed 6 May 2009.

5. See the transcript of the Senate Legal and Constitutional Committee’s Inquiry into the Native Title Bill 2009, p.48 available here. See also Hiley, G and Levy, K, Report on the

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

4 Native Title Amendment Bill 2009

Court will be able to direct that the Tribunal hear particular matters as appropriate. In this light then, the Court will have an ‘overseer of workload’ role as well as a role in the r, District Registrar or Deputy

The idea of moving the mediation role to the Federal Court is not without criticism:

One complaint made against giving the Court control of the mediation process is that

However,

suited to developing exible to have proper regard rs.7

Note though that this comment, while it might be true, is a little misguided in this context be conducting any mediation proceedings; that role

being

Senator TROOD —But you still see the tribunal as having a critical and important resource

mediation process through the Registrar, Deputy Registra District Registrar of the Court.

the judges, because of their very independence, are apt to be inconsistent in their approach.6

the Federal Court, with its collegiate appellate structure, national allocation of judges and Commonwealth jurisdiction with powers of cross vesting, is consistent national approaches that are still sufficiently fl to the circumstances of particular States, regions and matte

because it is not the Judges who will will be undertaken by Registrars or similar persons, as indicated above.

The current system of having the Tribunal manage all mediation processes has not worked to produce efficient native title determinations.8 The cost and delays will likely be curbed significantly if the Federal Court is given a role in overseeing and participating in some of the mediation processes. Further, the Court will reduce the Tribunal’s workload by able to make determinations on matters other than native title.

The future of the Native Title Tribunal’s role in mediation

During the Senate Legal and Constitutional Affairs Committee’s Inquiry into the provisions of the Bill, the Registrar (and Chief Executive Officer) of the Federal Court were asked about the role of the Native Title Tribunal in mediation once the Bill is passed:

role in the whole process of resolution. After all, there is a very considerable there. There is an already established institution with a great deal of expertise in

Native Title Claims Resolution Process, 2006, para 24 of Executive Summary. Available electronically here. Accessed 6 May 2009.

6. Chalk, A. ‘Redefining the Role of the Federal Court in Settling Native presented to the 3rd Annual Negotiating Native Title Forum, Melbour Title Matters’, Paper ne 19-20 February

7.

2009, p.13. Used with permission.

ibid.

8. McClelland, R. MP Second Reading Speech, Native Title Amendment Bill 2009, p. 1.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 5

mediation. I am sure the government has told you there are no more resources available for exercising this responsibility. You cannot expect any more resources so you are going to have to manage the additional powers that you are undertaking within your existing resources. Perhaps that means that the tribunal will end up with more work than it previously had.

very case that is pending, will result in some things changing.9

r note in this transcript is the expectation that the Tribunal will continue to media h as

more this

Diges unal

furthe additional function. The

Tribunal will require funding to continue for mediation proceedings.

The Bill has been referred to the Senate Legal and Constitutional Affairs Committee for

Mr Soden —We expect the tribunal to continue to perform a very important role in mediating native title matters and in providing the other facilities that it undertakes. But to be frank it would be wrong to assume that every matter that is presently before the tribunal will remain with the tribunal. The process that I mentioned, of the court looking at e

Of particula te native title matters. It is likely that the workload of the Tribunal might diminis mediation conferences are conducted by the Court. At the time of publication of t, it is not clear whether there are long-term plans to cut back the role of the Trib

r or to allocate extra funding to the Court to perform the

Committee consideration

inquiry and report by 7 May 2009. Details of the inquiry are at

http://www.aph.gov.au/Senate/committee/legcon_ctte/native_title/index.htm

Position of significant interest groups/press commentary

Submissions to the Senate Legal and Constitutional Affairs Committee’s Inquiry into the he Bill, welcoming the proposed

changes. This Bills Digest does not analyse the specific detail of the views presented in the

The T nd

provisions of this Bill show a general support for t

submissions to the Inquiry. The Tribunal’s submission was less supportive and expressed concern about the system or processes becoming ad hoc, fragmented, less efficient and more expensive to the Commonwealth if the amendments proceed.10

ribunal, as a significant stakeholder, further noted that there could be confusion a

9. Transcript from the Senate Committee on Legal and Constitutional Affairs, Inquiry into the Native Title Amendment Bill 2009, 16 April 2009, p.45, available here. Accessed 4 May 2009.

sion No.3 to the Senate Committee on Legal and Constitutional Affairs Inquiry into 10. Submis the Native Title Amendment Bill 2009¸ p. 1, available here. Accessed 28 April 2009.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

6 Native Title Amendment Bill 2009

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’.11

theless, the Tribunal noted an ine None vitability of the Bill proceeding and suggested some change to improve the operation of amendments which it considers to be unnecessary and poten

The p ners

and a

e title matters is

incompatible with mediation or other forms of alternative dispute resolution.

of individual judges may have, it remains

m

e Court. It will undoubtedly proach if it is not to end in

14

Broadly speaking, the tribunal is concerned that, because individual judges will have

may become ad hoc or fragmented, less efficient and potentially more expensive to

tially counterproductive.12

roposed legislation appears to have widespread support from native title practitio cademics. Explicitly,

the current system for resolving matters has not been successful. It has certainly failed the taxpayer. But more importantly it has failed Indigenous people. It has allowed a once in a century opportunity to redress one of the fundamental scars of our country to slip away. In this regard, we all suffer from the failure.13

The changes now proposed by the Government do not succumb to the fallacy that giving the Court responsibility for supervising the resolution of nativ

Whatever shortcomings the Federal Court the most competent, transparent, independent and accountable institution in the system.

… Unjamming the system, slowly building region, state and nationwide momentu towards settlements will be a major challenge for th require a level of coordination and consistency in ap tears .

The Tribunal is accepting of the policy change to give the Court a role in native title mediation but has expressed some concerns about the administrative arrangements and about the ability for the Court and Tribunal to coexist and complement each other in the native title framework:

broad discretionary power about who will conduct mediation, the system or processes

11. ibid.

12. ibid., p. 2.

13. Chalk, A. ‘Redefining the Role of the Federal Court in Settling Native Title Matters’, Paper

14. A. ‘Redefining the Role of the Federal Court in Settling Native Title Matters’, Paper

presented to the 3rd Annual Negotiating Native Title Forum, Melbourne, 19-20 February 2009, p. 2, used with permission.

Chalk, presented to the 3rd Annual Negotiating Native Title Forum, Melbourne, 19-20 February 2009, p. 13, used with permission.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 7

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

d with specialist geospatial, research, legal and other

resources.

s but has further emphasised the need to address funding

issues

Furth urt’s

Chief reverse the onus of proof in

some circumstances. The Attorney-General and the Prime Minister have indicated their in princi

Fina

The Explanatory Mem Government revenue from this Bill. However, there is some ancillary debate about the level will

be, ei 010

Budg

three key issues:

• th

• th

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 an 15

Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma has welcomed the proposed reform for claimants and their representative bodies.16

er amendments to native title law may be on the agenda following the High Co Justice Robert French comments that it is necessary to

ple support to the idea.17

ncial implications

orandum states that there is no direct financial impact on

of financial assistance available to applicants in native title matters that are, or ther before the Court or the Tribunal. This is likely to be addressed in the 2009-2 et.

Key issues

Many of the changes to the provisions of the Act are technical and administrative. However, the Bill raises

e new role of the Federal Court in the mediation of native title matters,

e ability of the Court to make determinations on other matters, and

ript from the Senate Committee on Legal and Constitutional Affairs, Inquiry into the Amendment Bill 2009, 16 April 2009, p.2, available here. 15 Transc Native Title Accessed 4 May

16 t:

16/article/Native-Title-is-an-uneven-playing-

2009

Dorizas, A. ‘Native Title is an uneven playing field: Calma’ available electronically only a http://www.governmentnews.com.au/2009/04/ field-Calma/HJYVPCXFTV.html, accessed 4 May 2009.

http://www.news.com.au/story/0,27574,25313301-29277,00.html 17. . For the full text online CJ French’s article, click here. of (MPs, Senators and Parliamentary Staff only)

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

8 Native Title Amendment Bill 2009

• th

These tion

signif tive

title d

seems relentless and sometimes the rewards elusive.’ ‘We may be a long

he direction of each case means that the opportunities for dily identified. This reform has the potential to significantly he native title system.19

nises that broad agreements can be negotiated ‘but does not clearly provide that it is within the Court’s jurisdiction to make determinations dealing with matters beyond ecognise that the Court may be able to assist the parties to negotiate side ering matters beyond native title.’20

o be considered and further consultation done in

21

e streamlining of processes relating to Native Title Representative Bodies.

changes are likely to make aspects of native title litigation and media icantly more efficient and will reduce the delays currently experienced with na eterminations. High Court Chief Justice French has acknowledged that:

native title process was burdensome and can be likened to rolling a large rock uphill … the effort way from the summit but we are beyond the point where the rock is likely to roll down the hill again.18

Federal Court as mediator in native title matters

As mentioned earlier, the Court will not replace the Tribunal as the sole mediation body. It will create an overseer role for the Court and this is intended to have the effect of managing the workload between the Tribunal and the Court. The Government is of the view that:

having one body control t resolution can be more rea improve the operation of t

The Court to make determinations beyond native title

The second key issue of significance are the amendments that will enable the Court to make determinations that cover matters beyond native title. Currently, section 86F of the Act recog

native title, or r agreements cov

The Australian Human Rights Commission, in its submission to the Senate Committee’s Inquiry into the Bill, wants other options t this area.

19.

vailable here.

18. ‘Native Title goes to Federal Court’, Australian Financial Review, 24 October 2008, p. 51.

McClelland, R. Discussion Paper: Proposed Minor native Title Amendments, December 2008, a See p. 3.

21.

20. ibid, p. 4.

Submission to the Discussion Paper (see Note 17) from the Australian Human Rights Commission, p.7, available here. Accessed 4 May 2009.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 9

Representative Bodies

The Government sees a need to ‘streamline’ the provisions relating to recognition and re-recognition of Native Title Representative Bodies (NTRBs) in the Act. This streamlining will reduce the paperwork for NTRBs and therefore lead to more timely decisions. The provisions will be moved to one part (Part 11) of the Act.

Main

Schedule 1 - Amendments relating to mediation

3 on matters relating to mediation. Item 1

ciated with the amendments in item 6, which give the Court a central role in the m

Items deral

Court. Item 3 adds mediation to the list of topics under Division 1A of the Act which

or the Federal Court to have a mediation role in native title proceedings. Item 6 will repeal existing subsection 86B(1) and substitute proposed subsections 86B(1), (2) and (2A) which require that the Court refer each application

on

94D(2 ne of the main intentions of the amendments is to

ediators and to allow the Court to appoint any qualified and

provisions

This Schedule amends the Native Title Act 199 will insert new paragraphs 4(7)(aa) and 4(7)(ab) which will provide (in the Overview of the Act) for the Federal Court to refer native title and compensation applications for

mediation and allow the Federal Court to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title. This item is asso anagement of all native title claims.

2-4 make small amendments that allow for mediation to be dealt with by the Fe

contains the general rules on the following topics:

(a) referring applications to the NNTT for mediation (see Division 1B);

(b) agreements and unopposed applications (see Division 1C);

(c) conferences (see Division 2);

(d) orders (see Division 3).

Existing section 86A outlines when mediation procedures are available to native title applicants. Items 5 and 7-11 will remove references to the Tribunal as the mediation body thus leaving it open f

made under section 61 to an appropriate person or body for mediation.22 This is to be done as soon as practicable and may be referred to an appropriate person or body including an officer of the court (proposed subsection 86B(2A)). See also proposed secti )(b) (inserted by item 35). O

remove the Tribunal m appropriate mediator. Proposed subsection 86(2A) allows this to include the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.

. Note that the exception to this is where there is a section 86(B)(3) order. 22

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

10 Native Title Amendment Bill 2009

Amendments to subsection 86B(5) made by item 12 will allow the Court to refer, at any time in a proceeding, the whole or part of the proceeding to an appropriate person or body

ed subsection 86B(5A)). This proposed subsection 86B(5B)).

roposed subsection 86B(5C) will allow the Court to make an order ovided; whether the person conducting the

mediation may be assisted or any other matter the Court considers relevant.

5).

ourt may order that mediation cease.

Proposed paragraph 86C(1)(c) will allow the Court to make such an order if it is

d subsection

86C(6) will allow the Court (after making an order under subsections (1), (3) or (4) which at the Court considers

are reasonably necessary or appropriate to deal with the cessation of the mediation.

This is the key to the flexibility of the new system. As Andrew Chalk notes:

for mediation. The Court may take into account:

- the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation (propos person could be an officer of the Court (

In making a referral, p about the way in which the mediation is to be pr

Item 13 will allow a mediator to appear before the Court if the Court considers that the mediator might be able to assist the Court in relation to a proceeding. Proposed subsection 86BA notes that to avoid doubt, proposed subsection 94D(4) applies to the mediator when appearing before the Court. That subsection will outline who must conduct mediation conferences and what sort of assistance the mediator may have. The specifics of the subsection are explained below (item 3

Items 14-20 are mainly consequential amendments for when the court orders the cessation of mediation being conducted now by mediators rather than by the Tribunal alone.23 Item 17 will insert a new ground upon which the C

‘appropriate to do so for any other reason’.

Item 21 makes a significant amendment to section 86C of the Act. Propose

relate to the cessation of the mediation) to make any other orders th

[Moving matters] into and out of mediation at the judge’s discretion will give the Court far greater flexibility without having to first meet any statutory condition. With frank reporting from the mediator, and active and timely case management from the judge, there is no reason that priority matters cannot be resolved in much shorter timeframes than they are at present.24

23. Note the effect of proposed section 94D(2)(b) here.

24. Chalk, A. ‘Redefining the Role of the Federal Court in Settling Native Title Matters’, Paper presented to the 3rd Annual Negotiating Native Title Forum, Melbourne, 19-20 February 2009, p. 15, used with permission.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 11

Items 22-34 make consequential and minor amendments that are necessary to effect the institutional changes. The amendments to subsection 86D(1) and 86D(2) will allow the Court to determine questions of fact or law that are referred to it by a mediator. Amendments to section 86E will allow the Court to request a progress report on

Item 35 will insert proposed section 94D-94S (Division 4) that outline the rules relating

he provisions

• referral powers on questions of fact or law (proposed subsection 94H)

94K

and 94L)

rt (proposed

su

• th

• sp

• pr

Items 36-38 and 41-66 makes minor consequential amendments to terminology as a result of moving the mediation function to the Court. Item 39 repeals Division 4A of Part 6 of

be de g a

referral under subsectio ‘person conducting the mediation’ means

e person mentioned in subsection 94D(2) who conducts a conference under section 94D

mediations that are being conducted by the one or more mediators. These amendments will provide more scrutiny of the case management load.

to the conduct of a mediation conference. Many of these are consequential and move provisions that exist under section 136A of the Act to the new Division. They are not new provisions. Moving them to a different part of the Act makes it clear that t

apply to all mediators subject to a referral from the Court under section 86B. The provisions cover the following areas:

• who must conduct conferences and what assistance they may have (proposed subsections 94D(2) and (3). Note that this still includes Tribunal members

• statements made in a conference may not be used later in court, unless agreed (proposed subsection 94D(4))

• parties’ attendance at conferences (whether required, limited or excluded) (proposed subsection 94E)

• mediator’s powers to direct a party to produce a document (proposed subsection 94G)

• referral powers about dismissing a party to the proceedings (proposed subsection 94J)

• privacy and the disclosure of information in a mediation (proposed subsection

• the production of documents and a mediator giving evidence to a Cou bsection 94M)

e requirement to report to the Federal Court (proposed subsection 94N)

ecific reporting requirements (proposed subsection 94P and 94Q)

otection and immunity of mediator (proposed subsection 94R)

the Act.

Items 67 and 68 will insert two new definitions into section 253. The term ‘mediator’ will fined by reference to the person or body who is conducting the mediation followin n 86B(1) and the term

th

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

12 Native Title Amendment Bill 2009

in relation to the mediation concerned. See item 35 for details about who must conduct conferences.

Part 2 - Application provisions

Items 69-73 in Part 2 of the Bill will provide that the amendments apply to applications made under section 6125 regardless of whether that application was made before or after

g to the mediation conferences’.27 Item 72 deals

ent orders about matters other than native title. A consent the mediation

osed subsection 87(5) will allow the Court the same if the order is a native title

e parties spent on wider

urt, under proposed subsections 87A(5), 87A(6) and 87A(7) to ment about

whether it is within its power and appropriate to do so, make separate orders dealing

commencement of that section.

The Explanatory Memorandum notes that the intention of this is to clarify that the amendments apply to all future applications and to existing applications still in progress.26 The purpose of item 70 is to clarify that ‘a thing done for the purposes of the current provisions relating to the mediation conferences are taken to be done as under the proposed amended provisions relatin with reviews to the tribunal on whether there are native title rights and interests. If the review has not been completed before the commencement of the amendments, the referral is taken as having been made under the new proposed subsection 136GC(2).

Schedule 2 - Powers of the Court

Items 1-4 make minor corrections and rewording of headings to facilitate the new mediation role of the Court.

Item 5 is a significant provision that will insert proposed subsections 87(4)-87(11) allowing the Court to make cons order is technically an agreement that has been reached by the parties during conference that then become an “order” by the Court. Proposed subsection 87(4) allows the Court to give effect to terms of the agreement that involve matters other than native title. Prop determination. The Explanatory Memorandum also notes that these provisions will also have the scope to use existing powers to control the tim agreements.28

Item 7 allows the Co make orders that cover matters beyond native title where parties reach an agree part of an area. The Explanatory Memorandum notes that

these amendments would clearly provide that it is within the Court’s jurisdiction to,

25. Section 61 sets out a table showing the types of applications that may be made under the Division to the Federal Court and the persons who may make each of those applications.

26. Explanatory Memorandum, p. 30.

27. ibid.

28. ibid, p. 33.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 13

with (1) the determination of native title and (2) the matters covered by the agreemen 29 t, including matters other than native title.

) will allow the Court to make an order on matters other than

tory Memorandum as:

relevant to

s other than native title.30

iding whether to make an order under subsection (4) or (5).

st or a Territory Minister depending on the case, including the type of

Item 1 will

allow t

comm ence

Amendment Act 2008 to evidence given by Aboriginal and Torres Strait Islander people

Proposed subsection 87A(5 native title if the Court considers that the order would be within its power and it would be appropriate to do so. In doing so, the Court must take into account any objections made by the other parties to the proceedings. Examples of non-native title matters that may be covered are noted in the Explana

• economic development opportunities

• training

• employment and heritage

• sustainability

• viability

the benefits for parties and existing principles or agreements that might be • in making orders about matter

Proposed subsection 87A(8) will allow the Court to take into account any objections made by other parties in dec With the intention of saving time during Court mediation, proposed subsections 87A(9), (10), (11) and (12) will allow the Court to accept an agreed statement of facts agreed by some or all of the parties without requiring evidence. Proposed subsection 87A(10) will require the Registrar of the Court to notify, within 7 days, other parties to the proceedings that the statement had been filed with the Court.

The notification under proposed subsection 87A(10) will facilitate the operation proposed subsection 87A(11) which will require that the applicant and the principal government respondent must agree to the statement of facts. The principal government respondent could be the Commonwealth, a State, a Territory, the Commonwealth Minister, a State Mini er interests or the area of the claim.31

Schedule 3 - Rules of evidence

in Schedule 3 inserts a new proposed section 214 into the Act. This section the Commonwealth Evidence Act 1995 to apply to native title proceedings tha enced prior to 1 January 2009. In particular, changes made under the Evid

29. Explanatory Memorandum, p. 35.

30. Explanatory Memorandum, p. 36.

31. ibid.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

14 Native Title Amendment Bill 2009

will m der

tradit

ecide that it is in the interests of justice that the

Assistance in relation to inquiries etc.

le 4 is inserting a new section that will cover all types of mediation l). The drafting and the effect of this item is not new. It is the existing section 183 of the Act which provides for financial assistance in

83(7) prior to the new subsections

s of terms relating to previous transitional arrangements. onsequently, item 5 removes references to provisions that

1. the initial time for making an application has passed, or

subsection 203AB(2) for making an application has

ake it easier for a court to hear evidence of Aboriginal and Torres Strait Islan ional laws and customs, where appropriate.

Proposed section 214 is very broad and will allow the provisions of the Evidence Amendment Act 2008 to apply to a native title proceeding that commenced prior to 1 January 2009 if:

• the parties consent, or

• the Court exercises its discretion to d amendments apply.

Schedule 4 -

Item 2 of Schedu (whether by Court or the Tribuna replicated on native title matters from the Attorney-General. The amendments have the effect that financial assistance may be available to any inquiry, mediation or proceeding, whether it is before the Court or the Tribunal. It is unlikely that this will actually lead to an increase in requests for, or grants of, financial assistance because the guidelines for assistance that are created under proposed paragraph 213A(5) will take into account the substantive changes to the Act.

Similarly, proposed new subsections 213A(3), 213A(4), 213A(5) and 213A(8) will have effect (or validity) if the initial application or authorisation was made under current subsections 183(2A), 183(3), 183(4) and 1 commencing. Explicitly, previous applications and authorisations will continue under the new provisions.

Schedule 5 - Amendments relating to representative bodies

Part 1 - Removal of transitional arrangements

Items 1-4 repeal the definition These are no longer required. C will be repealed. Items 6-8 also repeal subsections that have been spent.

Item 9 will insert a new provision to require the Commonwealth Minister to determine applications for recognition as a representative body under section 203AB as soon as practicable after ‘whichever of the following periods ends last’:

2. any extended time given under passed, or

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 15

3. the Commonwealth Minister has asked for more information under subsection (1), which extends the time for finalising an application by not less than 21 days.

ve body. The provision notes that the recognition of the body as a representative body takes effect on the day specified in the instrument of recognition and e end of the day specified in that instrument unless the body’s

vision. The Explanatory Memorandum notes that the provisions ody that was recognised at the time of

Item 17 will allow the Commonwealth Minister to issue an invitation to an eligible body

tations may be general (that is, not to each eligible body).

203AA and section 203AAA.

Proposed section 203AA will allow the Commonwealth Minister to revoke an invitation e time period for making an application

has not expired. If the application has not been determined and the invitation is revoked,

ody must, under

proposed section 203AAA, notify the Commonwealth Minister of that decision before the

n rules of the notification

process for representative bodies. These provisions are not problematic or controversial.

Items 10 and 11 also repeal subsections that are no longer effective. Additionally, item 11 substitutes a new subsection 203AD(2) that specifies the period of recognition of the body as a representati

ceases to have effect at th recognition is earlier withdrawn under section 203AH.

Item 12 is a savings pro would ‘operate to the effect that a representative b these amendments coming into effect would continue to be recognised as if the amendments had not been made.’32

Part 2 - Recognition of representative bodies

These provisions allow for a simplified process for the re-recognition of current representative bodies. It is intended that this will be more efficient by making the variation process more streamlined. Provisions are made for extensions of time for representative bodies to make submissions if required.

whether or not there is already a recognised representative body for the area covered in the invitation.

Item 18 outlines what the invitations must contain and, under proposed subsection 203A(7), the invi

Item 19 inserts two new provisions, proposed section

if he or she considers it appropriate to do so and th

then the application is taken never to have been made (proposed subsection 203AA(2)).

If an eligible body decides not to apply for recognition, the eligible b

end of the period specified in the invitation under subsection 203A(3).

The remaining items in this Part (items 20-38) address variatio

32 Explanatory Memorandum, p. 44.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

16 Native Title Amendment Bill 2009

Item 39 is a savings provision relating to sections 203AAE, 203AF and 203AG of the NTA. On commencement, if any matters (relating to extension, variation or reduction of an area) are outstanding, the provisions that were in force prior to the commencement of

-12)

k guarantees held as payments under a uld avoid unnecessary banking costs to

5-17).33

n trust by the Registrar. This item corrects an error from the Native Title

mount by trust

e State or Territory

the amendments made by the Bill will apply to those decisions.

Schedule 6 - Other amendments

The Explanatory Memorandum states that the intention of Schedule 6, among other things, is to:

• clarify that the Court is required to make a determination about whether a native title determination is to be held on trust or by a Prescribed Body Corporate (PBC) at the same time as, or as soon as practicable after, making a determination that native title exists in an area (item 2, items 10

• simplify the provisions about cancelling ban Right to Negotiate (RTN) process. This wo future act proponents (item 13)

• amend the provisions that govern trust arrangements under alternative State and Territory regimes (items 3-9, 18, 19)

• clarify the penalty provisions (items 1

Item 1 replaces existing paragraphs 28(2)(a) and (b) with provisions that expand the scope of determinations to include cases where an amount is secured by either a bank guarantee or is held o (Technical Amendments) Act 2007.

Items 2-5 insert provisions that allow for the option for States to secure an a or bank guarantee. The Native Title (Technical Amendments) Act 2007 intended to have a trust regime option and it was ‘mistakenly removed’.34

Items 6-8 intend to avoid unnecessary banking costs to future act proponents. These items make minor amendments to proposed subsection 52(2)(a), (b) and (c) in column 3 of table 5.

Item 9 will insert proposed section 52A which again was mistakenly removed in the Native Title (Technical Amendments) 2007. This section will set out a trust regime for payments held under the Right to Negotiate process where an alternativ regime has a trust regime.

33 Explanatory Memorandum, p. 57.

34 Explanatory Memorandum, p. 58.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Native Title Amendment Bill 2009 17

Items 10-12 require, under proposed section 55, the Court to make a determination in sections 56 and 57 about whether native title is to be held on trust and by whom. The Explanatory Memorandum notes that the Court often makes a determination that native title exists but it does not come into effect until a PBC is registered. These amendments will require it to be ‘as soon as practicable after’ the determination.

Part 2 - Application etc. Provisions

18 notes that the amendment made by item 5 applies in relation to the making of a

mencement determinations. The determination

ral role in native title mediation to the

Federal Court of Australia. This policy decision has been debated in the past but is

Item determination under paragraph 43(1)(b) of the Act after the commencement of this item; and the revocation after the commencement of this item of such a determination whether made before or after that commencement.

Item 19 indicates the validation of pre-com is taken always to have been as valid, as it would have been if paragraph 43(2)(j) had been in force at the time the determination was made.

Concluding comments

The primary purpose of this Bill is to give a cent

unlikely to attract particularly strong opposition in the current Parliament. This is because the evidence shows that the existing system is not working efficiently and the move to the Federal Court is based on a recommendation from a 2005 independent review of native title mediation.

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Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

18 Native Title Amendment Bill 2009

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.