Ms Anderson reported on the number
of claimant applications that are before the Court nationally.
An outline was given of the matters in mediation with
the National Native Title Tribunal ('NNTT'), the number
where notification by the NNTT has been completed, the
number of matters substantively allocated to a docket
Judge and the number with trial dates or that are being
prepared for trial.
Ms Anderson gave an overview
of native title usergroup meetings that have been conducted
nationally and in other States and the Northern Territory.
Ms Kavallaris reported on the native
title applications in the NSW Registry.
An overview was given of the number
of claimant, non-claimant, compensation and registration
test decisions. Notification in NSW was complete for
all matters except those recently and compensation matters.
Except for new matters and non-claimant matters all claimant
matters had been substantively allocated. More than 2500
party joinder applications have been received in NSW.
Many claimant matters were now in mediation before the
NNTT. In relation to hearing dates one application in
NSW had a hearing date and two other matters have received
hearing dates for the taking of early evidence.
3.NSW Native Title Services Ltd
Mr Paul Hayes, Principal Solicitor
of NSW Native Title Services Limited outlined that in
NSW there is no recognised representative body and that
NSW Native Title Services Limited is currently funded
pursuant to section 203FE of the Native Title Act
1993 (Cth) to provide that service by ATSIC but it does
not have the power to certify applications or ILUA's.
On 6 December 2001 the Commonwealth Minister, upon the
recommendation of NSWALC, withdrew the registration of
NSWALC.
He mentioned that the new body is seeking
leave to be joined as a party on a case by case basis
and obtaining leave for NSWALC to cease to be a party.
On the question of funding, NSW
Native Title Services Limited is the sole recipient for
federal funding in NSW through ATSIC. Pursuant to section
203D(5) a strategic plan has been developed and provided
to the Commonwealth Minister. Pursuant to section 203B(4)
the body has identified a number of applications for priority
funding. There are currently four priority funded applications
in NSW. Some applications in NSW have no current funding.
Other claims receive funding for specific purposes, including
anthropological research on overlaps and in order to identify
the claim group and also for future act issues and for
the preservation of evidence.
The basis of ascertaining whether funding
will be given for the preservation of evidence was discussed.
It is hoped when the current four priority funded matters
are dealt with then the next priority cases may be identified.
ATSIC is not considering at this stage to give additional
funding to NSW Native Title Services Ltd to conduct native
title matters.
4.State of NSW - Robert Jackson, Department
of Land & Water Conservation
Mr Jackson noted that though a number of applications
are progressing in NSW, not all applications will be able
to be settled. The State is prepared to negotiate to
a settlement where credible evidence is given of the existence
of native title.
A major impediment to the finalising
of applications in NSW, in the State's view, is the current
level of funding given to applicants and this includes
mediating the matters to resolution. Nevertheless the
State is willing to mediate and negotiate and reach settlement
outside of the Native Title Act 1993 (Cth) eg by
Aboriginal Land Rights Act 1983(NSW)
and the Crown Lands Act
1989 (NSW) and other state legislation as is appropriate.
Resource
difficulties were identified by Mr Jackson, limiting the
number of individuals capable of undertaking historical
searches of the land claimed in NSW. This is restricted
further by a decision made in the 1980's and 1990's not
to maintain the State's land tenure records nor the skill
base to access the material that is available.
Mr
Jackson added the problem is compounded by the way many
claim areas have been identified, in some instances by
formula, by identifying the external boundary only and
then identifying by tenure class the exclusions, ie freehold,
lands validly granted etc. One application may include
upwards of 10,000 individual parcels of land that require
to be searched. In the foreseeable future it will be
beyond the capacity of the NSW Department of Land &
Water Conservation to conduct tenure searches in all NSW
applications. In some instances it may take more than
1000 person hours to identify claim area, and then further
time to conduct the required searches. There are currently
only three or four persons available to the Department
to deal with the current workload. Each application may
take as many as two to three years to complete.
Mr
Jackson noted that the State proposes to make submissions
in a number of applications to allow the applications
to move forward within the current timetables. The State
will work with NSW Native Title Services Ltd and others
to identify any priority claims for searching.
5.National Native Title Tribunal - Graeme
Neate, President NNTT
Mr Neate spoke of:
·The
impact of Federal Court timeframes on strategic use of
resources of the NNTT;
·The
unique nature of the Native Title process; and
·Mediation.
Mr
Neate provided to the Chair a document headed "Speaking
Points" setting out the above points in detail including
five pages of statistical data. That document has been
reproduced and a copy attached to these minutes.
Mr
Neate spoke of the limited resources of the NNTT and the
effect of that on the NNTT's primary role which is to
mediate. In addition he noted there are other functions
the NNTT is required to perform, including:
-Registration
testing;
-Mediations
in relation to Indigenous Land Use Agreements; and
-Mediations
in relation to Future Act issues.
Mr
Neate noted the there are five Tribunal Members who have
been allocated NSW applications and that each of those
members has also been allocated other work nationally.
There are 14 Tribunal Members nationally, seven are engaged
full time and seven part time.
Mr
Neate said a reasonable period in some instances for mediation
reports to be provided to the Court could be a period
of at least six months. This will allow for a more strategic
use of available resources by grouping applications by
region, regional travel and therefore the cost of travel
and the time of the Member can be allocated to deal with
a number of meetings / mediations at the same time. This
initiative may require some coordination between the Court
and the Tribunal.
Mr
Neate was asked in response to this point to provide a
regular report to the Court identifying applications where
proposed mediation is to take place, the region and anticipated
dates of mediation and or meetings.
6.Discussion
(i) ILUA
- Certification where no representative body
Mr
Hayes (NSW Native Title Services Limited) stated that
though the company could not certify an ILUA, the ILUA
could still be registered provided notification was given
to possible claimants.
Mr
Jackson of the Department of Land & Water Conservation
noted that the State has no difficulty with the lack of
power to certify ILUA's by NSW Native Title Services Ltd
and is willing to work with the current entity to attempt
to negotiate ILUAs' and to assist with notification.
(ii) Future Trial Program.
Mr
Hayes also said that possibly one, if not two, applications
may be able to be set down for hearing during the second
half of 2003. The remaining two may proceed to hearing
the following year.
Justice
Wilcox noted the four applications currently identified
to receive priority funding are positioned in the north
east of the State. There are currently no applications
receiving priority funding in the other parts of the State
with a number of applications receiving no funding whatsoever.
Though matters have been disposed of in NSW it has not
been from proceeding to final hearing, and consequently
determining issues of importance generally to native title
and land tenure in NSW.
(iii) Preservation of Evidence.
Justice
Wilcox noted the increasing concern of the Court regarding
the possibility of the loss of evidence of elderly or
infirm members of the claimant groups and the openness
of the Court to travel to regional areas to take early
evidence.
Mr
Chalk, of Chalk & Fitzgerald Solicitors noted that
when preparing for the taking of early evidence it is
important for applicants to ensure the evidence is properly
prepared and taken. It is also difficult for applicants
to do the preparation required as there is a shortage
of good anthropologists with relevant experience. This
shortage is having some effect on bringing matters to
trial.
(iv) Requirements of the State Government
for credible evidence.
Louise
Anderson provided an overview of the practice of the other
States in relation to this issue. She noted that Victoria
published guidelines late last year. Western Australia
has undertaken a review of this issue as recommended by
the WAND Report.
Mr
Jackson for the NSW Department of Land & Water Conservation
noted that NSW is currently working on a list of guidelines.
When that list is finalised it will be made available
to parties.
Mr
Searle, Senior Solicitor from the Crown Solicitors' Office
noted that it is NSW's position, in relation to the provisions
credible evidence, that it is not a requirement that a
connection report be provided by the applicants. Lay
evidence is suitable to be considered.
Mr
Searle also noted that in the majority of applications
no information is provided outside of that information
provided in the application.
Justice
Wilcox suggested to Mr Jackson that the State consider
publishing guidelines of the matters it requires for receiving
credible evidence. Mr Jackson said that it was a matter
the State was considering and progressing.
7.Other Business
Ms
Phillips, counsel, noted that the current lack of trial
dates set in relation to NSW applications is not the only
indicator of the progress of native title matters in the
NSW Registry. Ms Phillips noted that numerous interlocutory
proceedings have led to the dismissal and discontinuance
of NSW applications.
Mr
McLean, counsel, noted that entry into an ILUA will not
preclude a determination of Native Title at a later time
and also put forward the suggestion that NSW Native Title
Services Limited develop a scheduling approach to the
production of connection reports around the State.
Mr
Blackshield, solicitor, made the observation that there
seems to be a perception that the mediation process is
an all or nothing exercise, whereas section 86B(1) of
the Native Title Act
1993 (Cth) is wider to include things such as agreed facts.
Mr
Fitzgerald, Solicitor, noted in follow-up of the National
Native Title User Group Meeting held in Adelaide during
October 2001, that Mr Brett Walker SC will be settling
a communication to the Court, as suggested by Justice
O'Loughlin on behalf of the Native Title Representative
Bodies.
