Overview of the Native Title Environment in NSW
Key Stakeholders
NTSCORP’s key stakeholders are the Traditional Owner communities of NSW and the ACT. Through the application of NTSCORP’s facilitation and assistance policy, the organisation applies limited funds provided by FAHCSIA to represent the native title rights and interests of Traditional Owners. In part, this involves the application of a prioritisation program to determine the matters for which NTSCORP can provide representation and assistance.
Other key stakeholders in the native title process in NSW and the ACT include the State Government, the NSW Farmers Association, the Commonwealth Government, the Federal Court and the National Native Title Tribunal (NNTT).
Categorisation of Native Title Matters in NSW
Beginning in May 2004 and continuing in 2008-2009 the NNTT, the NSW Government and NTSCORP have categorised all native title determination applications in NSW in terms of their prospects for resolution and provided that categorisation documentation to the Federal Court.
The aim of the categorisation process is to inform the Court in which cases the parties believe coordinated efforts are best focused in order to move towards the resolution of a maximum number of claims. Generally this process has assisted NTSCORP, the NSW Government and the NNTT to concentrate their resources more effectively.
Claims are categorised as:
Category A:
Applications where applicants have provided evidence to the State and the State is assessing the material or negotiating with the applicants to try to settle the claim.
Category B:
Applications that NTSCORP is representing or supporting but evidence not yet provided to the State.
Category C:
Applications that are not represented or funded by NTSCORP but have some prospects for a negotiated outcome if certain things are done.
Category D:
Applications where there is insufficient evidence available for them to progress towards a negotiated outcome.
Category E:
Applications, which in their present form, have little or no prospect of a negotiated outcome.
Category F:
Applications lodged primarily to attract procedural rights under the Native Title Act in relation to proposed future acts.
As at 30 June 2009, NTSCORP represented nine of the eleven matters in Category A, however NTSCORP does not represent any of the matters in Category C, D or E. Matters represented and actively assisted by NTSCORP have a higher likelihood of progressing efficiently and effectively through the native title process in NSW.
Credible Evidence Process
New South Wales is the only state in the Commonwealth which does not currently have a publicly available credible evidence policy or credible evidence guidelines. As a result, credible evidence has been the subject of negotiations within the parameters of each native title application.
In general, however, it is clear that the State Government has adopted the approach that it requires credible evidence to be submitted for assessment before the State is willing to enter into any meaningful negotiations towards possible avenues for resolution of native title applications by agreement rather than by litigation.
Court Management of Matters with Minimal Progress
During 2008-2009 the Federal Court continued to employ the use of programming orders in native title applications in which evidence has not been submitted and where the applicants are largely unrepresented. These are matters which have generally been classified as Category D or Category E applications.
Programming orders are a method often employed by the Federal Court prior to a full hearing of a matter. Case Management Conferences convened by the Federal Court have also been an effective mechanism for progressing applications which, in their present form, have little or no prospect of a negotiated outcome.
The Federal Court continued to note to Parties its discretion to dismiss applications that had not been accepted for registration by the NNTT, under its powers contained in section 190F(6) of the Native Title Act 1993. These powers were not actively employed during 2008-2009,
NTSCORP continues to be joined as a respondent party to all native title matters.
Strategic Approach by NTSCORP
In 2008-2009, NTSCORP continued to take a strategic approach to native title in NSW and the ACT through adherence to the prioritisation program and the application
of the facilitation and assistance policy. This approach is necessitated by the limited and insufficient level of funding received from FAHCSIA.
NTSCORP strongly advocates that a strategic approach to education processes, research, land summits, representation, dispute resolution, notifications and policy has the best potential of delivering the desired outcomes of Traditional Owner communities.
NTSCORP has actively implemented its ‘road map’ for effective native title applications in NSW and the ACT which includes the following series of steps:
- Education workshops
- Research
- Land summits
- Establishing community protocols
- Filing a native title application
- Witness statements
- Working parties/negotiation committees
- Governance structures
- Negotiations
- Outcomes
Trends in Native Title in NSW and the ACT
2008-2009 has seen a number of trends emerging which have affected the native title environment in NSW and the ACT. These changes have ranged from those brought about by legislative amendments, to those brought about by broader changes in policy and activity by industry. Of significant note is the trend towards changes to the native title system that will improve its efficiency and effectiveness.
Amendments to the Native Title Act
Following wide-ranging amendments (mainly of a technical and procedural nature) to the Native Title Act 1993 (Cwth) in 2007, additional amendments were proposed in 2008-2009. These “proposed minor amendments” were the subject of a December 2008 Commonwealth Discussion Paper, which called for comment. NTSCORP collaborated with the National Native Title Council (NNTC) in the preparation of a submission regarding the proposed changes.
These proposed changes included: amendment to section 87 to allow for the Court to adopt a Statement of Facts as agreed between the parties; the potential for the Federal Court to make determinations that cover “non Native Title matters” and various amendments to the Evidence Act 1995 (Cwth). It is also proposed that the Federal Court will have an increased role in the conduct of mediation in native title matters.
In its submission, the NNTC raised additional issues regarding the potential for reform to section 223 of the Native Title Act 1993 (Cwth) (see below), and the need to ensure consistency between the Act and the Racial Discrimination Act 1975 (Cwth).
In May 2009, the Senate Standing Committee on Legal and Constitutional Affairs recommended, following a period of inquiry, that the Native Title Amendment Bill 2009 be passed without amendment. At the end of the financial year, the Bill was being considered by the Senate.
Warrell Creek near Numbucca Heads.
Proposal to Reverse the Onus of Proof in Establishing Connection to Country
In 2008-2009 there was significant debate regarding a proposal to reverse the onus of proof under section 223 of the Native Title Act 1993 (Cwth), under this proposal the respondent parties to a native title application would bear the responsibility for disproving the existence of the applicants’ connection to country exists. High Court Chief Justice Robert French proposed the change, arguing it would not impact on the structure of native title law, but would substantially reduce financial burden for applicants and assist in the more just and timely resolution of claims.
The NNTC provided a submission, in which NTSCORP collaborated, in February 2009 to the Attorney General’s Department. The submission advocated “that the onus of proof of matters related to continuity and connection should be on respondents where applicants have demonstrated they are a contemporary, coherent community for the claim area”. The debate regarding the proposal to change section 223 remains ongoing, with the Attorney-General and Prime Minister having indicated a willingness to consider the proposal.
Government Approach to Agreement Making
During 2008-2009 the Commonwealth and State and Territory Governments acknowledged the backlog of undetermined native title applications and the significant length of time associated with resolving applications. As a result, the Joint Working Group on Indigenous Land Settlements is considering the introduction of Guidelines for Best Practice Native Title Agreement Making.
