Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

The purpose of the Native Title Amendment Bill 2009 is to amend the Native Title Act 1993 to implement institutional reform to give the Federal Court of Australia 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.

The Native Title Tribunal was established in 1993. It is administered by the Attorney-General’s Department and performs the following important functions. The tribunal 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; maintains the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements; makes arbitrary  decisions about some future act matters; and negotiates other sorts of agreements such as Indigenous land use agreements.

The history of determination of native title and compensation claims is complicated. The original scheme provided that all claims be made to the Native Title Tribunal. If the terms could be agreed, the tribunal would make a determination in accordance with the agreement, which, once registered, took effect as though it were an order of the court. If terms could not be agreed, the registrar of the tribunal would lodge an application in the Federal Court. However, in Fourmile v Selpam in 1998, this scheme was held to be invalid because it alleged to vest judicial power in a non-judicial body.

The act was amended in 1998 to provide that every current claimant application became a proceeding in the Federal Court and every new application was to be made to the court. As a general rule, the court referred each application to the tribunal for mediation in accordance with parameters set by the court.

The act was further amended in 2007 to expand the tribunal’s powers and functions in relation to mediation, to clarify that the court could not mediate while an application was before the tribunal. The government complains that the existing regime—and its previous iterations—has resulted in the expenditure of millions of dollars in litigation and the creation of a backlog of claims that may take 30 years to clear.

The proposed amendments will provide that both the court and the tribunal may mediate and will also provide that another ‘appropriate person or body’ may mediate. Management and oversight of the process will be the responsibility of the Federal Court. The intention is for ‘broader, more flexible and quicker negotiated settlements of native title claims’. The settlements may be broader because the court will be empowered to make consent orders on matters beyond native title. Other proposals include provisions for the court to rely upon an agreed statement of facts in making a consent determination where the parties include a native title claim group and the main government party, while objections may be taken to the agreed statement by other parties within strict time limits; for there to be a simplified application process for recognition of native title representative bodies; and processes for extension, variation and reduction of areas are to be amalgamated into one variation process. Representative bodies may apply for extensions of time to make submissions on variations.

The proposals are also intended to work with recent amendments to other legislation—in particular, amendments to the Evidence Act relating to hearsay and opinion evidence on Aboriginal and Torres Strait Islander laws and customs; and amendments to the Federal Court of Australia Act to allow the court to refer questions to an expert for inquiry and report.

The coalition supports this bill in principle. However, we foreshadow potential Senate amendments pending the report of the Senate committee.

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