Editors --- "Book Review: National Native Title Tribunal Annual Report 1995/96" [1997] IndigLawB 38; (1997) 4(1) Indigenous Law Bulletin 24
Book Review
National Native Title
Tribunal Annual Report 1995/96
by RS French
Commonwealth of Australia, 1996
Reviewed by Garth Nettheim
The National Native Title Tribunal ('the NNTT') has become a busy organisation since its commencement (and the commencement of the Native Title Act 1993 (Cth) ('the NTA')) on 1 January 1994. A major growth occurred in the period covered by this report, the financial year 1995-1996. One indicator of this are the staff figures an increase from 40 to 139 over the 12 months.
Yet, at the end of this period, the first native title determination had not yet been made-that 'first' occurred on 6 October 1996 with the Dhungutti People's agreement in respect of land at Crescent Head in NSW.
To expect more, however, by way of results would have been unrealistic given the evolution of the law and politics on native title in Australia, not to mention the change of Federal government on 2 March 1997. This Annual Report discloses that the NNTT has hit its stride and has evolved with commendable skill in dealing with the increasing work load.
Both the President (justice Robert French) and the Registrar (Patricia Lane) attribute the increased work load to a variety of factors. One is the High Court's Waanyi decision in February 1996 (North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225), which greatly eased the process of getting claims accepted. Another is the heavy work flow generated by use of NTA 'future act' processes in Western Australia (in contrast to other States, which chose largely to disregard such processes). A third is concern about the Howard Government's proposed amendments to the NTA.
Some of the statistics are indicative. Claimant applications increased from 82 in mid-1995 to 367 in mid-1996. Non-claimant applications increased from 61 to 96. Future acts applications increased from 1 to 170, and objections to invocation of the expedited procedure from 0 to 93. Compensation applications, however, increased only from 3 to 5. As at mid-1996, 8 cases had been referred for determination to the Federal Court.
The President draws attention to the difficulty proposed by 'intra-indigenous conflict', and refers to attempts to deal with these disputes. He notes that in some mediations State governments have simply declined to negotiate on the question of native title. Justice French predicts 'that as court decisions in cases now pending resolve some of the key legal issues parties, and particularly governments and applicants, will have a clearer idea of the likely outcomes of litigation' (p vi). He adds: 'Precedents also flow in modest ways from interim or process agreements' (p vi).
Apart from its central role of mediation, in the attempt to achieve negotiated agreements (and arbitrations as to future act proceedings), the NNTT also puts a substantial effort into public information and education and to community liaison. This report provides an impressive indication of the range and quality of such activity.
One key area where an increased work load may be expected is in regard to s29 notices issued by governments which propose to issue mining interests or to acquire land under compulsion for others. Since the failure of Western Australia's challenge to the NTA, and the invalidation of its own legislation (Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373), the Western Australian government has been fully utilising the NTA processes. During the period mid-1995 to mid-1996, the NNTT received 5,114 s29 notices in respect of Western Australia. For other States it received only 16 in NSW and 3 in Queensland. Of the 5,114 Western Australian notices, 72.5% (3,695) claimed that the expedited procedure applied, and there were 93 objections lodged to the application of the expedited procedure pp 77-81).
Apparently one reason why some other States had made little use of the NTA future act processes was the belief that native title had been extinguished by pastoral leases, a belief that was itself extinguished on 23 December 1996 by the High Court majority decision in Wik Peoples v State of Queensland & Ors ((1996) 141 ALR 129). The effect of that decision may cause State and Territory governments to be more ready to negotiate native title claims. It should also incline them to utilise the NTA future act processes, and thus add to the NNTT's workload. Immediately, however, it has led some Premiers and Chief Ministers to demand that the Commonwealth legislate to extinguish native title on pastoral lease lands. The Commonwealth already proposes amendments to the NTA which will reduce the 'right to negotiate' processes to potential insignificance.
The report and its Appendices contain a great deal of material which will be of interest to people concerned with native title law in Australia.
In this report, Justice French indicates that he is not available for appointment at the end of his term as President in May 1997. The Registrar, Patricia Lane, will also leave office during the year. Together with their colleagues they have piloted this novel institution, through various shoals, to a position where it is fully engaged in the creative but 'heavy burden of helping indigenous and non-indigenous Australia to respond to a challenge of great importance in the historical development of the nation' (p viii).