Procedures under the right to negotiate scheme
Explanatory memorandum
(Please note: Any amendments to the following
procedures are highlighted in red and show the date the changes were made.)
- The National Native
Title Tribunal has reviewed its Procedures under the Right To Negotiate System -
last issued on 20 April 2000 - in relation to expedited procedure objection
applications.
- The right to negotiate provisions in the Native Title
Act 1993 (Cwlth) (the Act), and the Procedures developed by the Tribunal, should
be considered in their statutory context. The main objects of the Act
include:
- to provide for the recognition and protection of native
title; and
- to establish ways in which future dealings affecting native
title may proceed and to set standards for those dealings (s 3).
Those objects, and the substantive provisions of the Act that give effect to them,
reflect the policy set out in the Preamble to the Act which states, in
part:
'It is particularly important to ensure that native title holders
are now able to enjoy fully their rights and interests. Their rights and
interests under the common law of Australia need to be significantly
supplemented. In future acts that affect native title should only be able to be
validly done if, typically, they can also be done to freehold land and if, when
appropriate, every reasonable effort has been made to secure the agreement of
the native title holders through a special right to negotiate. It is also
important that the broader Australian community be provided with certainty that
such acts may be validly done.'
- The Tribunal accepts that Parliament
intended that proposals to do future acts which are subject to the right to
negotiate provisions of the Act (particularly the grant of mining tenements)
should be dealt with in a timely manner. This is apparent from:
- The Statutory Provisions. Section 35(1) of the Act provides that a
future act determination application can be made 6 months after the giving of
the notice under s 29 of the Act of the Government party's intention to do the
future act. Section 36 requires the Tribunal to take all reasonable steps to
make a determination as soon as practicable (s 36(1)) and advise the relevant
Commonwealth Minister if it does not do so within 6 months of the application (s
36(3)). The Minister may request the Tribunal to make a determination within a
specified period (s 36(4)).
- The Second Reading Speech of the Prime Minister on 16 November 1994 (Hansard pp 2880-2881). The Prime
Minister noted that:
- the right to negotiate was not a veto;
- the timeframes set for notifications negotiation and arbitration are tight but fair;
and
- the Act imposed clear statutory rules for land use and did not set up
complicated barriers to mining exploration and operations.
In Western Australia v Thomas the Tribunal, when explaining the purpose of the right to
negotiate provisions of the Act, said:
'We accept that the legislation
was enacted with knowledge of the importance of the Australian mining and
resources industry, and that the right to negotiate provisions were intended to
deal with the ongoing grant of mining and petroleum titles, which is the largest
and most significant aspect of the future dealings covered by the
Act. In general the Tribunal accepts the importance of achieving
certainty for the mining industry, provided this can be done consistently with
giving effect to the important rights which are now accorded to native title
parties. (1996) 133 FLR 124 at 149.
- With respect to the expedited
procedure the Tribunal accepts that, in a procedural sense, expedited procedure
objection applications are also to be dealt with expeditiously. This is
supported by judicial comment in Western Australia v Ward & Ors where Lee J
said:
'The context of the subdivision suggests that a determination
whether "the expedited procedure" is attracted is to be made as speedily as
possible...' (1996) 70 FCR 265 at 278, 141 ALR 753 at 766.
This approach
was confirmed recently by the Federal Court (RD Nicholson J) in Little v Western
Australia [2001] FCA 1706 (at [84]-[85]).
- This policy was reflected in
the original Procedures which provided for:
- notice of receipt of the
objection application to be given to the Government and grantee parties within 7
days and for a preliminary conference to be convened within 14 days; and
- the Tribunal to take all reasonable steps to conduct the inquiry
and make a determination within 2 months of the preliminary
conference.
- In 1997 two factors caused the Tribunal (with the general
acquiescence of parties appearing before it) to change its procedures to permit
a period for negotiations between the grantee party and native title party to
see if an agreement could be reached about whether the expedited procedure was
attracted. These factors were that:
- the Western Australian Government changed its approach to consent determinations and was prepared to
consent to a determination that the expedited procedure was not attracted where
both the native title party and grantee party agreed; and
- the decision of the Federal Court in Dann v Western Australia (1997) 144 ALR 1, 74
FCR 39 (8 May 1999) meant that it was more difficult to make a determination
that the expedited procedure is attracted.
- As a consequence of these
factors many grantee parties expressed the wish to attempt to negotiate within
the context of an expedited procedure application rather than through the normal
negotiation procedures under s 31(1) of the Act. Although this had a positive
effect in that it resulted in a considerable number of objections being
withdrawn, it had the negative consequence of creating a backlog of matters and
permitting expedited procedure objection application matters to remain
unresolved before the Tribunal for longer than desirable. Given these problems
the Tribunal decided that a more flexible approach to dealing with expedited
procedure objection applications should be devised.
- The Procedures
under the Right to Negotiate Scheme - last issued on 20 April 2000 - provided
for directions to be made by a Member for an inquiry at the same time as the
parties are notified of receipt of the objection application and advised of the
time of a preliminary conference. They were designed to restrict the number of
preliminary conferences to one in normal circumstances and allow parties
sufficient time to negotiate if they wished to. The Directions permitted a 14
week period (from the closing date for objections) for negotiations to occur to
explore whether an agreement could be reached on the objection before compliance
with directions made for an inquiry was required.
- The Tribunal has
now decided that further amendments should be made to the Procedures under the
Right to Negotiate Scheme to emphasise the importance of negotiations,
streamline the inquiry process while maintaining the objective of resolving
objections in as timely a manner as possible. The further amendments:
- continue the practice generally supported by parties of allowing a period of
negotiation before compliance with directions for an inquiry is required;
- extend the time permitted for these negotiations to 16 weeks from
the closing date;
- provide for the Tribunal to accept an objection
within 14 days of its receipt (rather than waiting until the end of the
objection period) and to notify the parties of it thus extending the period
available for negotiations.
- only require attendance at a
Preliminary Conference if the parties do not agree to negotiate and do not
undertake to do so actively with a view to reaching agreement before the Status
Conference;
- require attendance at a Status Conference 4 weeks
before the Tribunal's directions are to be complied with, to ascertain whether
the negotiations have been or are likely to be successful; and
- emphasise that parties are expected to comply with the Tribunal's directions and
that failure to do so may result in dismissal of the objection particularly when
non-compliance occurs after the period for negotiation has elapsed.
C J Sumner
Deputy President
8 February 2002
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