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Clark, Geoff --- "Mediation Under the Native Title Act 1993 (Cth): Some Structural Considerations" [2002] JCULawRw 5; (2002/2003) 9 James Cook University Law Review 74


MEDIATION UNDER THE NATIVE TITLE ACT 1993 (CTH): SOME STRUCTURAL CONSIDERATIONS*

GEOFF CLARK**

* This article draws on parts of a more detailed paper entitled ‘Reconciling Landscapes: The Mediation of Native Title in Australia: Towards a Structural Approach’ presented to the Australian/Canadian Oceans Research Network (ACORN) Conference, 31 May –2 June 2002, Canberra, Australia. The author wishes to acknowledge the support and encouragement over some years of Mr Graeme Neate in fostering the writer’s interest in the application of the theoretical bases of various mediation models in the design and conduct of native title mediation.

** Professor, School of Law, James Cook University, Cairns; Member, National Native Title Tribunal; Deputy Chairperson, Aboriginal Land Tribunal (Qld), Member, Land Court (Qld). The views expressed are those of the writer and do not necessarily reflect the views of any organisation.

Abstract

The decision of the High Court in the Mabo case[1] that there existed a form of title to land (native title) capable of being recognised by the common law of Australia set in train a series of legal, political and social debates in Australian society that continued through the decade. This article briefly outlines the history of the development of native title as part of the common law of Australia. It then analyses the legislative response to the High Court decision with particular emphasis on the role determined by the Parliament for the National Native Title Tribunal in mediating agreements between parties to native title applications within the rights- based context of litigation. The article goes on to examine the interest- based model of mediation adopted by the tribunal and looks at the unique features that are starting to emerge in the design and conduct of mediation of native title.

I THE DEVELOPMENT OF THE COMMON LAW AND STATUTE LAW OF NATIVE TITLE IN AUSTRALIA

A The Development of the Common Law

1 Pre-Mabo

The contemporary history of the development of the law relating to Indigenous rights in land and sea in Australia is replete with paradox, irony, and a great deal of coincidence.

The starting point for contemporary legal recognition of Indigenous rights (ironically, today sourced both in statute and common law) is the decision of a single judge of the Supreme Court of the Northern Territory in 1971. In Milirrpum v Nabalco Pty Ltd[2] Blackburn J declared:

The evidence shows a subtle and elaborate system, highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is shown in the evidence before me.[3]

His Honour found that, despite the existence of the subtle and elaborate system of law, the plaintiffs did not ‘own’ land in property law terms. He was convinced that, after comparing how those Aborigines thought of their land with the substance of proprietary interests, the claims were not in the nature of proprietary interests.[4] He also held that ‘…the doctrine of communal native title does not form and never has formed part of the law in any part of Australia.’ He reached that conclusion after an examination of common law jurisdictions colonised by the British, in particular the United States, Canada and New Zealand.

Blackburn J was influenced in his reasoning[5] by the British Columbia Court of Appeal decision in Calder v Attorney-General of British

Columbia.[6] The Calder decision was handed down shortly before Blackburn J’s decision. The Court in Calder at that stage unanimously rejected the concept of native title at common law. Blackburn J regarded the Calder decision as ‘weighty authority’. Eighteen months after Milirrpum was handed down, the Supreme Court of Canada decisively rejected the conclusions of the British Columbia Court of Appeal, with all of the judges who examined the question holding that native title existed at common law.[7]

One of the Canadian judges (Hall J) felt it necessary to comment on Blackburn J’s ‘errors’ in Milirrpum in accepting ‘the proposition that after conquest or discovery the native title peoples have no rights at all except those subsequently granted or recognised by the conqueror or discoverer’.[8]

2 The Political Response to Milirrpum

The decision in Milirrpum gave rise to a political response to Aboriginal needs for land. The then federal Whitlam Labor Government appointed the Woodward Royal Commission.[9] Mr Justice Woodward was (prior to taking judicial office) senior counsel for the Indigenous interests in Milirrpum.

The Woodward Commission recommended the statutory land rights scheme that was ultimately enacted by the Fraser Government in the form of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). A further coincidence is that Justice Woodward provided the drafting instructions for the proposed legislation that became the Northern Territory Act. He is said to have based his draft substantially on the Northern Land Council’s final submission. [10] That submission was, in turn, drafted by F G

Brennan QC, who went on to become Justice Brennan and was one of the judges who decided Mabo (No 2).

State Parliaments followed the Commonwealth example of statutory land rights in a rather haphazard fashion. Statutory land rights schemes were eventually established in South Australia (Pitjantjatjarra Land Rights Act

1981 (SA); Maralinga Tjaruatja Land Rights Act 1984 (SA)); in New South Wales (Aboriginal Land Rights Act 1983 (NSW)); in Queensland (Aboriginal Land Act 1991 (Qld); Torres Strait Islander Land Act 1991

(Qld)); and by the Commonwealth in relation to land in Jervis Bay (Aboriginal Land Grant (Jervis Bay Territory)Act 1976 (Cth)).[11]

One State — Western Australia — appointed Mr Paul Seaman QC in May 1983 to undertake an inquiry into the possibility of land rights legislation in that State.[12] Seaman’s recommendations in September 1984 for a statutory scheme of land rights were not taken up by the Western Australian Labor Government, which ‘succumbed to an intense opposition campaign from the mining lobby’.[13] The Burke Labor Government had gone so far as to issue a set of guidelines for State land rights legislation, and established a committee of representatives of interested bodies to assist in its preparation.[14]

The federal Labor Government under Prime Minister Hawke also attempted to introduce a National Land Rights Scheme,[15] which came to ‘grief because of a failure of political will’.[16] One substantive outcome from the national land rights process was the enactment of the Aboriginal

and Torres Strait Islander Heritage Protection Act 1984 (Cth).[17] Whilst the federal Opposition vigorously opposed the 1984 legislation (characterising it as land rights by stealth),[18] the then Leader of the Opposition in the Senate (The Hon Fred Chaney) was subsequently appointed to conduct an inquiry under the Act and was appointed to the National Native Title Tribunal by a Labor Government.[19]

That was the existing political and legal environment on the eve of the Mabo decision.

3 The Mabo (No 2) decision

The High Court decision in Mabo v Queensland (No 2) was handed down on 3 June 1992[20] as a result of proceedings that lasted some 10 years.[21] In the decision the Court[22] held that:

• There was a concept of native title at common law;

• The source of native title was a traditional connection to or occupation of the land;

• The nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs; and • Native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.[23]

4 Post Mabo (No 2) — Two Separate Systems

From the late 1970s until 1992, Aboriginal rights to land in Australia emanated from the same source as the land tenure held by non-Aboriginal Australians, ie, by virtue of Crown grant. Until the Mabo (No 2) judgments, the general law of Australia did not recognise that Indigenous people possessed any inherent or pre-existing legal rights to land.

Post Mabo (No 2), such an inherent right was recognised in areas where it was not extinguished. Native title is therefore inherently different from statutory land rights titles. Under land rights schemes, groups of Indigenous Australians are granted a fee simple title or a lease by the Crown. On the other hand, native title is the recognition of something which groups of Indigenous people already have. Native title laws exist to identify, recognise and protect what already exists. The Crown grants nothing, as native title is not the Crown’s to grant.[24]

After Mabo (No 2) (and the Native Title Act 1993 — see below), people who claim to have native title may either:

1. choose to have their rights recognised by seeking a declaration of their common law rights from a State or Territory Court of competent jurisdiction[25] ; or 2. apply to have a determination of native title under the Native Title Act.

B The Legislative Response to Mabo (No 2)

The Native Title Act 1993 (Cth) was an Act in response to the High Court’s decision in Mabo (No 2). The protracted parliamentary debate about the Act and the 1998 amendments to it attracted considerable public interest and comment. A challenge was made to the constitutional validity of the Act. In rejecting the challenge the High Court clearly decided that the ‘race’ power in the Constitution could be relied on by the federal Parliament to support native title legislation.

The Act is long and detailed. For the purposes of the present paper it is necessary only to outline the scheme of the Act.

The preamble of the Act ‘sets out considerations taken into account’ by the federal Parliament in enacting it.[26] These policy considerations have been summarised as follows:

• The protection of the rights of Indigenous peoples
• The need to provide a special procedure for the just and proper ascertainment of native title rights and interests
• The importance of ensuring that native title holders are able to enjoy fully their rights and interests and the need to significantly supplement those rights
• The requirements for certainty and the enforceability of acts which were potentially made invalid because of the existence of native title
• The importance of providing certainty to the broader Australian community that future acts that affect native title may be done validly.[27]

In summary, the Native Title Act 1993:

• Recognises native title rights and sets down some basic principles in relation to native title in Australia;

• Provides for the validation of past acts which may be invalid because of the existence of native title;

• Provides for a future regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters;

• Provides a process by which native title rights can be established and compensation determined, and by which determination can be made as to whether future grants can be made or acts done over native title land and waters; and • Provides for a range of other matters including the establishment of a national Aboriginal and Torres Strait Islander land fund.[28]

Key Concepts of the Act

The two key concepts which lie at the core of the legislation are, what is native title and what does the Federal Court have to consider in making a finding (determination) that native title exists? These two concepts permeate and subliminally direct the Federal Court proceedings (and the mediation process which usually occurs as part of those proceedings[29] ).

The definition of native title common law rights and interests is set out in s 223 of the Act. It provides:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), the rights and interests in that subsection include hunting, gathering, or fishing, rights and interests. …’

What has to be set out in the determination of native title is spelt out in s 225 of the Native Title Act 1993 (Cth), which provides:

A determination of native title is a determination of whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c)

(taking into account the effect of this Act); and (e) the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease — whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

The remainder of this article focuses on the role of the National Native Title Tribunal in mediating claims in a manner that allows parties to the Federal Court proceedings to reach agreement about some or all of the matters required to be agreed upon in order for the Federal Court to make a consent determination in relation to the criteria set out in sections 223 and 225 of the Act.

II DEALING WITH NATIVE TITLE APPLICATIONS — THE SCHEMA OF THE NATIVE TITLE ACT

A The Legislative Schema

The Act seeks to establish a legislative schema for resolution of native title claims. The principal features of the statutory scheme are:

• Claimant applications are lodged with the Federal Court.[30]

• The Federal Court sends the application to the Native Title Registrar[31]

(the Registrar of the National Native Title Tribunal — see below), who undertakes administrative procedures including applying the registration test to the application.[32]

• The Native Title Registrar is responsible for notifying the relevant persons and bodies and the public about each application.[33]

• Persons who feel their rights may be affected by a determination of native title apply to the Federal Court to become parties to the application.[34]

• Once the party list is settled, the Federal Court will usually refer the application to the Tribunal for mediation.[35]

• Mediation must be presided over by a member of the Tribunal.[36]

Members are appointed by the Governor-General.[37]

• The Tribunal carries out mediation of each matter referred to it and reports to the Federal Court on the progress of mediation.[38] Where native title exists, the Federal Court makes an appropriate determination of native title, either in or consistent with the terms agreed by the parties or as decided by the Court after a trial.[39]

B The Powers and Functions of the National Native Title Tribunal — A Broad Technical Overview

1 Establishment and Purpose [40]

The National Native Title Tribunal (‘the Tribunal’)[41] is an administrative body[42] established in accordance with the main objects of the NTA 1993, with power to make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act, and to provide assistance or undertake mediation in other matters relating to native title.[43] The powers and functions, membership and administration of the Tribunal are governed by the Act and regulations made under the Act.

2 Powers and Functions of the Tribunal in Relation to Native Title Matters [44]

The Native Title Act confers a number of specific functions on the Tribunal. This paper deals primarily with the Tribunal’s mediation function.

The Tribunal has certain functions in relation to Federal Court proceedings arising from native title determination applications (or claimant applications). When the Court refers proceedings to the Tribunal for mediation, the Tribunal holds conferences of the parties. The Act sets out how mediation conferences are to be conducted, who may attend or participate in conferences, the circumstances in which questions of fact or law may be referred to the Court, and the way in which reports about the mediation are to be made to the Court.

3 Tribunal’s way of operating [45]

The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical and prompt way.[46] In carrying out its functions, the Tribunal may take account of the customary and cultural concerns of Indigenous people, but not in a way that unduly prejudices other parties to any proceedings.[47]

The Tribunal is not bound by technicalities, legal forms or rules of evidence.[48]

The Tribunal may sit in a wide range of places, including external Territories, the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth).[49]

The Tribunal may carry out research for the purposes of performing its functions, including research into anthropology, linguistics, or the history of interests in relation to land or waters in Australia.[50]

4 How Mediation Occurs under the Native Title Act [51]

As Justice French[52] observed, the ‘heart of the Tribunal’s work’ is found in the provisions dealing with mediation.[53]

Kirby J expressed a similar view when he wrote: ‘It is important to emphasise that the purpose of the Tribunal is to facilitate negotiation, discussion and agreement, if at all possible.[54]

Generally speaking, the Federal Court refers every claimant application to the Tribunal for mediation[55] as soon as practicable after the end of the notification period for the application.[56]

Further, the Court may, at any time in a proceeding, refer the whole or part of the proceeding to the Tribunal for mediation if the Court considers that the parties will be able to reach agreement on (or on the facts relevant to) any matter set out in s 86A(1),[57] which provides:

(1) The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters:

(a) whether native title exists or existed in relation to the area of land or waters covered by the application;

(b) if native title exists or existed in relation to the area of land or waters covered by the application:

(i) who holds or held the native title;

(ii) the nature, extent and manner of exercise of the native title rights and interests in elation to the area;

(iii) the nature and extent of any other interests in relation to the area;

(iv) the relationship between the rights and interests in subparagraph (ii) and (iii) (taking into account the effects of this Act);

(v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease — whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others Note: The matters set out in paragraphs (a) and (b) are based on those that are required, under section 225, for a determination of native title.

In making Federal Court orders in relation to the case management of claimant applications, the Court has referred to the ‘central role’ of the Tribunal in the mediation process. That role is apparent from the mandated terms of referral and is reinforced by the Federal Court’s facility to request the Tribunal to provide reports to the Court on the progress of mediation. The various statutory provisions relating to mediation conferences convened by the Tribunal are ‘ancillary to the referral of applications’ to the Tribunal for mediation and they ‘do not define the limits’ of the Tribunal’s role.[58]

A myriad of factors impact on and determine how mediation occurs in each particular case. To its credit the Parliament, in developing the Act, made no attempt to dictate (in any sense of micro-management) how mediation should be conducted. There is no prescribed way of proceeding. Presumably the Parliament, having prescribed the qualifications for members of the Tribunal,[59] was content to rely on the experience and qualification of members to decide how each mediation was to be carried out.[60] Accordingly the legislative directions on how mediation occurs are enabling and empowering rather than prescriptive.

The Tribunal may ‘hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter’.[61]

The formal part of the mediation process is conducted at what are termed ‘conferences’. Each mediation conference must be presided over by a member.[62] The president may appoint a consultant to mediate.[63]

The presiding member at a mediation conference is provided with a number of statutory powers, including:

• To allow parties to participate in a conference (b) In person (b) By telephone • By any other means of communication[64]

• To hold conferences with only some of the parties[65]

• To exclude persons from conferences at the member’s discretion[66]

• To permit (with the consent of parties present) non-parties to attend a conference as observers[67] or as participants[68]

• To refer (at the member’s own initiative) to the Federal Court a question of fact or law that arises during a mediation[69] and to continue the mediation whilst the referred question of fact or law is being determined by the Federal Court[70]

• To prohibit, limit or qualify the disclosure to persons (including to other parties or parties’ constituencies) of any information given or statement made at or documents produced at a conference.[71]

A mediation conference must be held in private unless the presiding member directs otherwise and no party objects.[72] Conferences are ‘without prejudice’ to the parties. The Act specifically provides that ‘[in] a proceeding before the Court, evidence may not be given and statements may not be made, concerning any word spoken or act done at a conference’,[73] unless the parties agree otherwise.

The Tribunal member appointed by the president to conduct mediation in a particular application develops a process or framework for progressing the mediation from stage to stage towards the identification and resolution of the issues raised by the application. That program will usually include a series of timeframes for each stage of the process.

Parliament has provided no guidance and imposed no prescription on the framework for the mediation.[74] The development of the framework for the mediation is left to the discretion of the member. One presumes that in doing so, Parliament recognised that native title is not only sui generis but that the rights and interests that constitute each group’s native title is peculiar and unique to that group. Similarly, the issues raised by each application are unique to that application because the nature of the other rights and interests that exist in the application area will differ for each application.[75]

5 The Emphasis on Agreement and Consensus- building

Having set out the legislative schema for resolution of native title, it is appropriate to examine the statutory and practical emphasis on agreement- making. Such an examination needs to consider both the Act and how the Tribunal and its members structure mediation to provide a strong emphasis on mediation to achieve agreement between parties to applications.

The starting point of such an examination is the preamble to the Act which provides:

A special procedure needs to be available for just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.[76]

Similarly, the main objects of the Act include:

• To provide for the recognition of native title; and
• To establish the mechanism for determining claims of native title.

Whilst the preamble to the Act uses the term ‘conciliation’ it is interesting to note that (since the 1998 amendments) the Act is replete with the term ‘mediation’.[77] Whatever words like ‘mediate’, ‘negotiate’ or ‘conciliation’ mean to the different parties, the aim of the process is to resolve a range of issues by agreements that will endure based on relationships that will develop.[78]

That agreement-making is a key feature of the Act has been recognised by a number of judicial comments:

One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects.[79]

Various provisions of the Act are designed to achieve reconciliation through the mediation process[80]

Underlying the Act is an acknowledgment by Parliament that unless mediation or consultative processes are provided by the Act for the purpose of encouraging parties to use direct and less costly means of resolving their differences, the prosecution of “inter partes” litigation on a “parcel by parcel” basis will incur great cost and tend to prolong uncertainty about the existence and effect of native title.[81]

III THE TRIBUNAL PRACTICE IN MEDIATING NATIVE TITLE CLAIMS

In summary, the Tribunal conducts cross-cultural, multi-party mediation in relation to areas of land or waters, using a primarily interest-based model in a rights-based context.[82]

As mentioned earlier, instead of prescribing how the Tribunal should conduct mediation, Parliament has focused on the purpose of mediation and the outcomes that it desires from mediation. It is essentially left to the member to determine how the mediation is conducted.

Since the commencement of the Act, the Tribunal has developed a unique method of mediation which essentially adopts a populist theory and model of mediation practice and adapts that model to the peculiar characteristics that manifest themselves in the fabric of mediation of native title issues.

A The Interest-based Negotiation Model

The Tribunal has adopted the interest-based model of mediation as a basis for the manner in which it would conduct mediation of native title issues. The interest-based mediation model is based on the interest-based negotiation model.

The interest-based negotiation or principled negotiation model was first presented in the classical text Getting to Yes.[83] The authors were members of the Program on Negotiation at Harvard Law School and the Harvard Negotiation Project. The original concepts of principled negotiation and mediation have been developed both by Harvard-based personnel and others.[84] The method is often referred to as the Harvard model of negotiation and mediation.

The underlying process for the interest-based negotiation model is that disputing parties attempt (without the help of another person) to determine each other’s interests and generate options that satisfy the interests of all of the parties. The discussions do not focus on each party’s rights but on their interests. Unlike some other schools of negotiating, this model does not prescribe what the negotiator should say at every point in the negotiation. This model provides a framework for proponents to work through their issues and explore their options.[85]

The theoretical model of interest-based negotiation establishes seven elements to a principled approach to negotiation. The seven elements of interest-based or principled[86] negotiation, described briefly below, are:[87]

1. Alternatives (BATNA)
2. Interests
3. Options
4. Legitimacy
5. Communication
6. Relationships
7. Commitment

1 Alternatives

Before entering into a negotiation, each disputant must determine what he or she will do if an agreement cannot be reached. The disputant must consider the ‘alternatives’ and identify the best one. This is known as the ‘Best Alternative to a Negotiated Agreement’ or ‘BATNA’.

Each disputant should make the BATNA as real and as concrete as possible and not leave it as hypothetical. The negotiator then seeks to see if the BATNA can be improved in the negotiations. Improving a BATNA is a classic way to increase negotiating power.

Once a BATNA is developed it should be put away and not used during the negotiations. At the end of the negotiation (but before agreeing to a deal), the BATNA can be used to measure whether a deal proposed by the other person is better or worse than walking away from the table. At the end of a negotiation, negotiators should accept a proposal if it is better than their BATNA — even if they believe the proposal is not objectively reasonable. Similarly, if all potential resolutions to a dispute are worse than the disputants’ BATNA, the negotiator should reject these potential resolutions, regardless of the time and effort invested in the negotiation. There is no shame in not reaching a deal in a negotiation.

2 Interests

People’s interests are their goals, wants or needs. They are the reasons behind the positions that the people are advocating. Interests can be satisfied in a number of ways; positions can be satisfied in only one way.

The model proceeds on the basis that ‘[b]ehind opposed positions lie shared and compatible interests as well as conflicting ones’.[88] This element of the model encourages parties to explore each other’s interests for the purpose of identifying the shared and compatible ones as a possible basis for an agreement.

In an interest-based solution there is neither a winner nor a loser, and the disputants try to persuade each other, not third parties, about the merits of their case. Fisher, Ury and Patton argue that:

Reconciling interests rather than positions works for two reasons. First, for every interest there usually exist several possible positions that could satisfy it. All too often people simply adopt the most obvious position… When you do look behind opposed positions for the motivating interests, you can often find an alternative position which meets not only your interests but theirs as well.[89]

Reconciling interests rather than compromising between positions also works because behind opposed positions lie many more interests than conflicting ones.[90]

3 Options

Once the interests of the parties have been identified, the parties are encouraged to generate as many and as creative options as possible that attempt to satisfy those interests. Options, unlike alternatives, are the possible solutions that the disputing parties can implement with each other’s consent and co-operation.

Fisher, Ury and Patton say there are four main obstacles that inhibit the inventing of an abundance of options:[91]

(c) Premature judgment;

(d) Searching for the single answer;

(e) The assumption of a fixed pie;

(f) Thinking that ‘solving their problem is their problem’.

Writers on this subject tend to agree that to invent creative options requires a number of changes to the thought processes of the parties. Those changes include:

(c) separating the act of inventing options from the act of judging those options (d) broadening the options on the table rather than looking for a single answer (e) inventing ways of making the parties’ decisions easy.

The essential act of generating options can only occur in an environment where parties agree not to criticise each other’s options and not to regard options as offers. The purpose of the option-generating exercise is not to find a workable one but to have the parties jointly ‘sparking’ ideas off each other in a non-critical environment.

4 Legitimacy

After options are generated the parties choose among them. In that exercise they are searching for a solution that is fair to them and that the other party or parties will be prepared to accept. Parties are often more comfortable in this part of the process if they can refer to legitimate standards such as precedents, benchmarks and similar disputes in other contexts.

By referring to external standards rather than focusing on power and coercion the parties can be confident that the solution will be effectively fair.

5 Communication

An important element of the principled negotiation model is communication. By encouraging the parties to focus on how they communicate (in addition to what they say), they will be more likely to resolve the matter in issue.

Communication involves both listening and speaking. Knowing how to listen well is the difference between being persuasive and understood and being misunderstood. Active listening[92] is probably the most effective technique in negotiation and mediation. The major component of active listening is not the listening itself but the paraphrasing and restating of what the other person has said so as to demonstrate to that other person that the listener has understood what they have said. People who feel heard and understood are more likely to listen to and attempt to understand the concerns of others.

Paraphrasing or ‘rephrasing’ is but one of the elements of active listening. Other elements include acknowledging emotions, determining underlying values and asking clarifying questions.

6 Relationships

In most negotiations people have a relationship which extends beyond the particular dispute. That relationship is best served if the negotiations occur in a manner that maintains or improves rather than destroys their relationship.

The interest-based model focuses on the relationship during the negotiation by separating the people from the problem. This is often described as being soft on the people but hard on the problem.[93] On the belief that positional bargaining puts relationship and substance in conflict,[94] the interest-based model instead seeks to remove much of the emotion and perception out of the negotiation by focusing parties’ attention not on the conflict between them but on the opportunity to jointly explore each other’s interests and thereby find a joint solution to their common problem.

7 Commitment

This element of the model seeks to avoid people committing to a resolution before the end of the negotiations. It postulates that good negotiators remain open to persuasion, creative options and new ideas, and protect themselves from power imbalances by not committing until the end. In particular, they will not commit until they have compared the proposed agreement with their BATNA. However, having committed parties must complete the deal.

B The Interest-based Mediation Model

This term is used to describe principled or interest-based negotiation between parties with a negotiation expert, a mediator, who can assist the parties overcome any obstacles during their negotiations.

Although there are a number of models for interest-based mediation, all of the models attempt to determine the disputants’ interests in the hope that the disputants and the mediator will develop or create solutions to satisfy the interests.

The classical model of interest-based mediation is a seven-stage model. The stages are:

• Setting the table
• Storytelling
• Determining interests
• Determining the issues
• Brainstorming options
• Selecting an option
• Closure

It will be seen that the stages in interest-based mediation reflect quite closely a number of the elements in interest-based negotiation.

1 Setting the Table

The mediator sets the table both literally and figuratively. In a literal sense the mediator is responsible for the physical surroundings in which the mediation occurs and the physical comfort of the parties to the mediation.

If the parties are comfortable they will be more likely to participate effectively in the process.

In a figurative sense the mediator also sets the table by explaining the process to the parties and seeking to make them at ease with the mediator’s approach.

Key features in outlining the process are:

• the various stages likely to be involved in the process as the parties work through the issues
• the role of the mediator as an impartial and neutral party who makes no determination of the dispute for the parties
• the role of the mediator as one who facilitates the process so that the parties can resolve the dispute. In other words, the parties need to persuade each other not the mediator of the merits of their situation
• determining the authority of the parties to resolve the problem themselves or whether they need to go back to a higher authority to close any deal that might be made
• the mediator outlining the ground rules for the parties when they are in active mediation.

Ground rules can include:

Speaking. Only one person speaking at a time
Withdrawal. A party can leave at any time
Personal attacks. No personal attacks although the parties should discuss concerns and feelings openly
Caucusing. Some of the mediation will occur with all of the parties in the same room whilst some of the mediation may take place in private meetings with the mediator.
Confidentiality. Information discussed in the mediation is confidential. In particular, the mediator cannot use any information gained in caucus when the mediation resumes with all of the parties present, unless the person who provided the information in caucus authorises the mediator to disclose that information in open session.

By setting basic ground rules the mediator introduces the process to the parties, puts them at ease, and attempts to gain their co-operation in listening to one another, being open to persuasion and being creative.

2 Storytelling

This is a key feature of mediation. It is one of the factors which distinguishes mediation from litigation. The parties are provided with an opportunity to express their individual perspective on the dispute. This may be the first opportunity that a party has had to express to the other party how the conflict has affected them and how they feel about the situation. Storytelling can be cathartic because it allows an opportunity to:

• vent frustration
• express concerns
• release stress.

Extreme emotions are often expressed in storytelling. The role of the mediator in this part of the process is to let the parties talk, prevent interruptions and hopefully make notes about interests disclosed.

3 Determining Interests

The process of storytelling may well disclose to an experienced mediator some of the interests that the teller of the story has underlying the dispute and which need to be drawn out in order to move the negotiations forward. The mediator follows up on this by asking the parties questions to clarify their perceptions of each other’s position and to try and identify the underlying interests. Parties are not always forthcoming with their interests. Usually parties attempt to hide their true concerns behind their stated positions. The mediator will often meet with parties individually to seek to determine whether there are any hidden interests and what they may be.

Active listening is the greatest skill that a mediator brings to this stage of the mediation. Active listening increases the parties’ comfort level since they recognise that the mediator is listening and, by the use of rephrasing, understanding their concerns.

The mediator then goes on to list the parties’ joint interests and seeks to use those as a basis for building agreement. It is often very useful to focus on how much (or how many interests) the parties have in common. This is because the parties themselves will tend to focus on their areas of disagreement and not on their areas of agreement.

4 Determining the Issues

After the mediator has attempted to uncover the parties’ interests, the parties are then encouraged to try and agree on the issues to be resolved or determined in the mediation.

In this exercise the mediator will often suggest the issues and ask the parties whether they agree. The skill of the mediator at this point is in phrasing issues as neutrally as possible. It is often said that the trick is to never phrase a statement that can be answered with a ‘yes’ or a ‘no’. Another technique is to frame the issues in terms that patently satisfy the disputants’ interests.

The issues are often revised as the mediation progresses and new issues may need to be dealt with as they arise.

An issue is simply a neutral encapsulation or summation of one or more expressed interests.

5 Brainstorming

This is the most exciting and creative part of the entire process for the mediator. Two ground rules need to be established very firmly. They are:

• no party is required to commit nor should any party commit to any options generated until the brainstorming session is finished, and
• no criticism is allowed of any option proposed in the brainstorming session.

Fisher says the theme for this part of the process is ‘invent first, decide later’.[95] He believes that, as judgment hinders imagination, brainstorming should separate the creative act from the critical one and separate the process of thinking up possible decisions from the process of selecting among them.

In the brainstorming session, the parties need not fear looking foolish since wild ideas are specifically encouraged.

Fisher sets out a detailed list of guidelines for brainstorming sessions.[96]

The role of the mediator in generating options in a brainstorming session is a controversial one. On one view, since mediators are responsible for the process and not the substance of the mediation, they should not generate potential solutions for fear of losing their neutrality if they generate options that are perceived to favour a particular party.

On the other view, the benefits of the mediator generating options outweigh the risks. The mediator may have creative ideas that the parties have not considered. Those ideas could help resolve the controversy. Alternatively the parties may be so deeply entrenched in their positions that they are blinded by anger or frustration and thus unable to see viable options that the mediator (a third party) may recognise.

6 Selecting an Option

Once the options are generated the parties are encouraged to assess them and comment on those which may be feasible or impractical.

During this stage of the mediation the mediator may focus the parties on objective criteria or benchmarks in selecting a viable option, and one that is perceived as fair by both parties.

The process of assessing options is not always straightforward or easy. Parties generally assess options in relation to their ideal solution or their opening bargaining position. It is not unusual for the mediator to caucus with each of the parties and discuss with them that the crucial question may be not whether a particular option is ideal, but whether it is better than that party’s BATNA.

7 Closure

Generally if the parties can identify an option that is better than both of their BATNAs they are likely to commit to that option as a way to resolve the dispute.

In the classical model, the agreement is simply recorded in writing. This is often done with the assistance of the mediator.

Also in the classical model, an inability to reach an agreement on each of the issues is not regarded as a failure. If there is no agreement in toto the mediator can assist the parties to determine whether there are any issues that they can agree on. If they can, then those issues are put aside and the mediator can then help the parties to decide what course of action they want to take in the future to resolve the outstanding issues.

8 Moving through the Stages

It would be wrong to imagine mediation as involving a linear transition from one stage of the mediation to the next. Inevitably mediations involve jumping from one stage to the other and normally not in sequence. A typical pattern is for mediation to jump from storytelling to options to interests and back to storytelling as interests are jointly explored.

Each mediation develops its own ebb and flow and the wise mediator is always conscious of this and does not seek to be too prescriptive. The greatest facilitator of progress in mediation is storytelling. If the parties need to go back and tell the story from another angle or from a different perspective then the wise mediator lets them do that.

9 Conclusion

The classical model is primarily concerned with moving the parties away from a focus on their position by encouraging them to examine, and ultimately disclose (either to themselves, or preferably to others) their underlying issues and interests that operate to establish their positional bargaining posture. It proceeds on the basis that there are a much broader range of options available to satisfy a party’s issues and interests than are available to satisfy the coagulation or reflection of those issues or interests in a single position. The model was initially developed to deal with two- party mediation.

The classical model is premised on some assumptions that are not always present in native title mediation. The absence of those assumptions (and the presence of other factors) makes the design of the native title mediation process by the mediator even more critical. The unique features of native title mediation and litigation are touched upon in the next part of the article.

IV SOME PECULIAR FEATURES OF NATIVE TITLE MEDIATION

This part seeks to unravel some of the unique features of native title mediation. It does this by examining some of the more common elements of ‘classical’ two-party mediation and highlighting the presence of some unique features in native title party mediation that differentiate it from the ‘classical’ mediation model.

A The Typical/Classical Mediation Scenario

Mediation may be summed up in many different ways:

Mediation is the intervention into a dispute or negotiation by an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.[97]

Mediation is a process in which a third party intervenes in a conflict, usually with the consent of the parties, to facilitate a mutually acceptable resolution which requires the agreement of the participants for implementation. In a sense it is facilitated collaborative problem solving…[98]

Mediation is generally understood … as an informal process in which a neutral third party with no power to impose a resolution helps the disputing parties try to reach a mutually acceptable settlement.[99]

The above definitions are selected from leading authors who represent some of the current schools of thought on mediation practice and theory. Central to all thinking about mediation is the concept of an independent party helping people to negotiate an acceptable agreement. Underlying each definition is the assumption that the participants are negotiating because they are in dispute and are unable to resolve that conflict on their own; that is, without outside assistance. Central to the concept of parties having a dispute is that they are in conflict.[100]

Tillett[101] suggests that there is a clear distinction between concepts of problem, dispute and conflict. Problems can be resolved by management.

If not managed, problems can lead to disputes which arise when two (or more) people perceive that their interests, needs or goals are incompatible, and seek to maximise fulfilment of their own interests or needs, or achievement of their own goals (often at the expense of others).

Conflict, on the other hand, arises when two (or more) people perceive their values as being incompatible, whether or not they propose, at present or in the future, to take any action on the basis of those values. Conflicts (which usually relate to deep human needs and values) are sometimes expressed in problems or disputes, which may be the superficial manifestation of a conflict. In such instances, unless the conflict is addressed, the dispute or problem will continue. Quite different issues arise in managing a problem, settling a dispute and resolving a conflict.

The following elements are present in most if not all models for classical mediation:

• The parties have had or still have a relationship;
• The parties are in dispute about an aspect of that relationship;
• The issues in dispute between the parties have been identified, ventilated or particularised; and
• The mediation occurs against a background of attempts to resolve or decide the dispute.

It is suggested that these elements of history of relationship, disputation, issue identification and prior attempts to resolve the dispute are usually not present in most matters referred to the Tribunal for mediation.

B Special Characteristics of Native Title Litigation

It is useful to look at the unique nature of native title proceedings in order to consider the unique nature of the mediation that takes place as a step in those proceedings.

An independent body (the Australian Law Reform Commission) has observed that native title is a ‘unique and relatively new area of law with a limited but developing jurisprudence’ and that native title disputes are potentially complex, with complexity deriving in particular cases, from features including:

• The number of parties involved
• The existence of related disputes including overlapping boundaries representing areas of shared Indigenous responsibility, different responsibilities for country in an area of competing claims, Indigenous groups with historical and traditional connection to the same country, and family or other group conflicts, as well as conflicting interests between land users and between different State and Territory agencies
• The need for historical, genealogical and anthropological evidence and the difficulties parties experience in obtaining expert assistance in such matters
• The evidentiary burden on, and complex factual investigations required of claimants to prove that their group, at the date of sovereignty, held native title and that their group maintains a connection with their traditional lands based on their traditional laws and customs
• The cultural understanding required and practical difficulties associated with taking evidence effectively from claimants
• Complexity of legislation, including State and Territory legislation
• State divisions and differences
• The relative novelty of the processes and practice — many parties lack understanding about native title and the processes of the National Native Title Tribunal (NNTT) and the Court
• Complex determinations of the impact of colonial and State and Territory property law and legislation
• The concept of communal title
• Complex land use issues such as how native title can be used consistently with existing federal, State, Territory and local government land use management systems.[102]

The above factors are very confronting for the participants and challenging for the mediator who is required to manage a process that has as its aim the resolution of some or all of those issues between the parties. In a sense the list of factors serves to paint part of the ‘landscape’ within which mediation has to occur.

The inherent difficulty has been recognised by the High Court. Justice Brennan in Mabo said Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty.[103]

The fundamental challenges posed by native title litigation have been expressed in the following terms by a current member of the Tribunal.

It is public interest litigation that affects not only huge areas of Australia, but diverse communities. It is, from the viewpoint of the native title holders, action to enable the recognition of laws and customs that have been in place since time immemorial. It is not action to contest rights but to ensure recognition of existing laws and customs.

It is litigation involving families, communities and ways of life. It is litigation that can be confronting, in that Indigenous people are asserting rights not previously recognised, and in some locations this is seen as effecting a fundamental shift in power.

For all of these and many other reasons, a sensitive and sensible approach to native title proceedings is required. It is not merely litigation that begins and ends in the Federal Court. It is litigation that affects the social fabric and economic viability of communities and businesses. Long after the Federal Court and the Tribunal have finished their business, people on the ground have to go on living together and working together.[104]

C Unique Characteristics of Native Title Mediation

Having briefly examined the peculiar features of native title litigation, it is appropriate to examine the mediation process that occurs as part of that litigation. There are unique characteristics of native title mediation. In particular, those features which are an integral feature of classical mediation — existing relationship, limited parties, existence of a dispute with identified issues, failed attempts at resolution — are not usually present in native title mediation.

Points of Differentiation

The following unique features which are present in native title mediation serve to differentiate native title mediation from ‘classical’ mediation.[105]

(a) Number of parties

Most mediation (such as the mediation of commercial or matrimonial issues) involves two parties, yet native title applications often involve scores if not hundreds of parties. One Victorian application has 447 parties divided by the Court into 17 groups according to their interests.[106] One Western Australian application has 567 parties. In August 2000 the Tribunal sent out around 10 000 letters to people whose interests might be affected by nine native title applications in South Australia.

(b) The absence of a relationship

Most mediation involves people who know each other and have an existing relationship. Many of the parties in native title litigation have never met before and have no existing relationship. This is particularly the case when the native title parties are negotiating with public servants representing either the Commonwealth, State or relevant local authorities or employees of statutory authorities.

Although some native title cases involve people who have been sharing the land for generations, native title mediation often involves people who do not know (or even know of) the applicants and hence the relationship or series of relationships develop in the course of and for the purpose of the mediation.

Even where relationships are in place before the native title process evolves, the nature of those relationships is likely to change by virtue of the assertion that native title rights could exist, and as a consequence of the process by which the issues are resolved. Existing relationships are unlikely to be based on the rights of Indigenous people without legally enforceable rights in rem. Native title rights attach to the land. They are not just rights sought by particular people.[107]

New relationships are created in a context where, whatever their relative position and power may have been previously, Indigenous people are now asserting that they have significant rights. Their assertions have consequences for the local community generally. The applicants should be taken seriously. Like it or not, governments, corporations, land holders and others (sometimes including other Indigenous people) have to sit down and talk face-to-face with the applicants. Whether the relationship is old or new, power shift is foreshadowed by a native title application and is precipitated by the process of resolving it.

(c) No common understanding of the issues

Most mediation is supported by a common understanding of or background to the matters in issue. Native title mediation involves an attempt to understand and reconcile culturally different (and divergent) views of lands and water. Often there is not even a comity of views on what is an issue or even what is ‘in issue’.

(d) Absence of dispute

Most mediation is in the nature of dispute resolution. Native title mediation does not commence because of a dispute but by an application for a determination of rights which may affect the rights and interests of others. To many native title parties there is no dispute, just a process to recognise what the applicants assert has always been in existence.

(e) Length of time

Native title mediation can take a long time. Various factors impact on the time taken in mediation. The factors can include the number of parties, the area of land or waters covered by the application, the number and range of issues that need to be resolved, whether there are overlapping or competing applications over the same area of land or waters, and the human and financial resources available to the parties and the Tribunal.

All of these factors influence the pace and duration of the mediation process. The speed of mediation is also affected by the number of parties and the different perspectives they bring to the process. Consequently, native title negotiations take much longer than ordinary mediation, sometimes a number of years.

For the above (and other) reasons it has been said that:

The Native Title Act 1993 (Cth) provides for mediation as a way of reaching agreement about native title. The Act does this in the context that native title is essentially a recognition of traditional Indigenous rights in land and waters. In many instances, these rights will now co-exist with the rights and interests of others. Native title is therefore not in principle a matter in dispute. Instead, it involves a process of reaching agreement about related rights and interests among defined parties, although the involvement of different interest groups means that native title claims may, and often do, give rise to disputes. The term ADR could therefore be seen as limited to particular aspects of the native title mediation process, rather than as wholly applicable to the native title jurisdiction.[108]

D The Typical Scenario

Typically, a claim is lodged by an applicant group for recognition (under a statutory scheme) of a set of rights and interests (always existing but newly recognised by Australian law) with the Federal Court. The Federal Court sends the application to the Native Title Registrar for an administrative purpose (registration testing).[109] After that administrative function is performed the Native Title Registrar gives notice of the application to various persons or bodies specified under the Act and the application is advertised.[110] Persons (individual or corporate) with an asserted interest in the land or waters the subject of the application can apply to the Federal Court to become parties to the proceedings.[111] Once the party list is settled by the Court (usually without input from the applicants), the matter is sent by the Court to the Tribunal for the Tribunal to conduct mediation.

The above-described process provides little or no opportunity for interaction between the parties.

The Tribunal is required to mediate:

• between parties who often have no (or no history of a ) relationship;

• between parties who have no overt dispute between each other, save perhaps for a feeling of needing to be part of the claim process to ensure existing rights are recognised or protected;

• between parties who often have had no opportunity to even articulate issues which may or may not lead to disputation; and

• in circumstances where there have been no attempts to resolve or decide a dispute.

In those circumstances the Tribunal is required to do a number of things and take a number of steps before the Tribunal can undertake any form of mediation. Those steps include:

• Explaining the claims process to the parties, including the respective roles of the Federal Court and the Tribunal;

• Explaining the roles and responsibilities of the various parties in the mediation process;

• Assisting the parties to explore and decide what their issues may be;

• Assisting the parties to decide if they have a dispute at all; and

• Assisting parties to prepare for the mediation — both psychologically and physically preparing material.

These steps all have to occur and be completed before any form of mediation (in the sense of ‘assisted negotiation’) can begin to take place. Many of these steps, whilst part of an overall mediation processes, do not involve mediation in its ‘pure’ form. They can probably best be grouped under a heading of ‘capacity building’ of the parties.

It is suggested that the typical scenario demonstrates both the complexities which accompany native title mediation and the context-based environment within which mediation usually occurs. Against the background of the typical scenario, the mediator has to design and develop a mediation framework that caters for all of the exigencies that may be present. The mediator is then required to implement the mediation process (using the interest-based model) within a rights-based (Federal Court litigation) process and against a background of the Federal Court and other parties regularly seeking objective evidence of progress towards agreement.

CONCLUSION

This paper has sought to briefly outline:

• The history of the development of native title as part of the common law of Australia;

• The technical legal requirements imposed on and the powers conferred on members of the Tribunal in mediating claims for determinations of native title which have been referred to the Tribunal by the Federal Court under the Native Title Act;

• The principal features (in summary form) of the classical interest- based mediation model developed at Harvard Law School in the early 1990s; and

• The ways in which mediation of native title claims can differ from the classical model of mediation.

Against a background of what are novel and unique legal concepts to most European/Australian lawyers, and with a legislative directive towards agreement-making in a rights-based (litigation) context, the Tribunal member is charged with conducting/undertaking an interest-based mediation process amongst people who may or may not have a relationship or may or may not be in conflict.

The situation is even more complex if one pauses to appreciate that each of the parties to the mediation will bring to it a set of values and standards which differ as a result of their upbringing, experience, perception and social mores. These are known as the ‘landscape’ which each party brings to the process. Landscapes inform the parties’ comprehension of and willingness to partake in the mediation process.

Thus the member is left to commence designing a mediation process with almost a blank canvas on which is thinly sketched the legislative requirement for the mediation process in the form of structure and powers. Onto that canvas must be added the border provided by the Federal Court through its referral of the claim to mediation. The canvas is further developed/added to by the landscapes of the parties.

It is the function of the member to rearrange those elements in order that they develop sequentially, interact appropriately, and coalesce into a lucid and clear whole that represents a clear, succinct and comprehensible picture of the matters on which the parties were or were not able to reach agreement. Each of the parties contributes to the canvas in different ways but each leaves their mark on it. The member should not leave a mark on the canvas other than through helping the parties achieve the ultimate drawing or picture.

Ultimately the completed picture is presented to the Federal Court, which then decides what further work will need to be done (and by whom) in order to complete the process.

The member’s single most significant contribution to the overall mediation process is to design an appropriate ‘space’ within which persons with different landscapes can feel confident and secure in moving away from their positions and exploring their issues and ultimately discussing those issues with other parties. This requires an understanding of the legislative and common law schema within which the native title process occurs. It also requires an understanding of the various schools of mediation theory and of the various landscapes which different parties bring to the mediation process.


[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[2] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267. This case is also known as the ‘Gove’ case.

[3] Contra Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 FLR 483, 501, where the court (rather paradoxically) found, ‘… the existence of laws or customs which determined how the land was controlled or utilized may be assumed from proof that a functioning society occupied the land.’ Compare the finding of Blackburn J in Milirrpum with that of Chief Justice John Marshall of the United States Supreme Court in the 1832 case Worcester v Georgia [1832] USSC 39; (1832) 6 Peters 515, 31 US 530, 8 L.ed.483, that Indian tribes were ‘distinct, independent, political communities’ who retained at least limited rights of self-government; see Edward Lazarus, Black Hills/White Justice: The Sioux Nation versus the United States, 1775 to the Present (1991) 17.

[4] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 273; see also 268–72.

[5] Ibid 219–23.

[6] (1970) 13 DLR (3d), 64 (CABC), 74 WWR 481.

[7] (1973) 34 DLR (3d) 145, SCR 313.

[8] Calder v Attorney-General of British Columbia [1973] 5 CR 313, 416.

[9] A E Woodward, Aboriginal Land Rights Commission First Report (1973); A E Woodward, Aboriginal Land Rights Commission Second Report (1974).

[10] Frank Brennan, ‘Mabo and Its Implications for Aborigines and Torres Strait Islanders’ in M A Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution—The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 31.

[11] These have been described as ‘unsatisfactory’ — see Noel Pearson, ‘Two Hundred and Four Years of Invisible Title’ in M A Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution—The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 75.

[12] P Seaman, The Aboriginal Land Enquiry, Perth, September 1984. It is ironic that some 10 years after he presented his Report, Paul Seaman was one of the initial members appointed to the National Native Title Tribunal established under the Native Title Act 1993 (Cth) (hereinafter ‘NTA’).

[13] Pearson, above n 11, 76.

[14] It is an interesting coincidence that the Commonwealth’s representative on that committee was Graeme Neate, who subsequently became a member, and is currently president, of the National Native Title Tribunal (hereinafter ‘NNTT’ or ‘the Tribunal’).

[15] For a detailed analysis of the relationship between the Seaman Inquiry, national land rights legislation and the Western Australian proposed legislation, see Ronald T Libby, Hawke’s Law: The Politics of Mining and Aboriginal Land Rights in Australia (1989).

[16] Pearson, above n 11, 76. For an account of this process see F Brennan, Sharing the Country (1991), 63–75. A further irony is that the senior political adviser to the federal Minister for Aboriginal Affairs (and adviser to the Prime Minister) during the attempt to introduce the National Land Rights Scheme was Mr Kim Wilson. Mr Wilson was one of the first members appointed to the NNTT under the NTA

[17] For a detailed analysis of the process leading up to the passage of the legislation, see Graeme Neate, ‘Power, Policy, Politics and Persuasion — Protecting Aboriginal Heritage Under Federal Laws’ (1989) 6(3) Environmental and Planning Journal 214. A further irony (or coincidence) is that two members of the panel of lawyers advising the government in the formulation of the cultural heritage legislation (Kim Wilson, a panel member and Graeme Neate, panel chairman), were subsequently appointed as members of the NNTT some 10 years later by a Labor Attorney-General. Other members of that panel included Mr A R Castan QC and Mr B Keon-Cohen, both of whom were subsequently to act for the plaintiff in Mabo (No 2).

[18] Graeme Neate, personal communication, May 2003.

[19] Mr Chaney was subsequently appointed as a deputy president of the NNTT by a Coalition government.

[20] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[21] For a wonderful insight into the history of the proceedings see Brian Keon- Cohen, The Mabo Litigation: A Personal and Procedural Account [2000] MelbULawRw 35; (2000) 24 Melbourne University Law Review 893–951.

[22] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mason CJ, Brennan, Deane, Toohey, McHugh, Gaudron JJ, Dawson J dissenting). See Brennan J’s nine-point summary of native title at 69–70.

[23] It is interesting to note that ‘the reasoning of the judges in Mabo appears to have been influenced by a thesis written by Dr G S Lester, entitled The Territorial Rights of the Inuit of the Canadian North West Territory’ —R D Lumb, ‘The Mabo Case — Public Law Aspects’ in M A Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution—The Aboriginal Land Rights Decision and Its Impact on Australian Law (1993) 1,12, referring to G S Lester, The Territorial Rights of the Inuit of the Canadian North West Territories (JD Thesis, York University, 1981, 2 vols).

[24] See G Neate, ‘Indigenous Land Rights and Native Title in Queensland: A Decade in Review’ [2002] GriffLawRw 6; (2002) 11 Griffith Law Review 90, 106.

[25] Few native title holders have chosen this approach. See, for example, Utemorrah v Commonwealth [1992] HCA 37; (1992) 108 ALR 225, 66 ALJR 642, and subsequent unreported decisions of the Supreme Court of Western Australia; Jones v Queensland [1998] 2 Qd R 385 and unreported decisions of the Supreme Court of Queensland.

[26] See commentary on the Native Title Act 1993 prepared by Commonwealth A-

G’s Legal Practice (1993) C8 for a detailed history.

[27] Policy considerations as well as the history of the development of legislation are set out in the second-reading speech, Commonwealth Hansard, House of Representatives, Tuesday 16 November 1993, 2877, by the then Prime Minister.

[28] Graeme Neate, ‘Meeting the Challenges of Native Title Mediation’, (Paper presented at LEADR 2000: ADR International Conference, Sydney, 2000).

[29] See NTA s 86B(1).

[30] NTA 1993 ss 61, 62 set out what must be contained in the application.

[31] NTA 1993 s 63.

[32] Part 7 of the Act requires the Registrar to make a procedural and merits-based assessment of an application. For a discussion on the registration test see Greg McIntyre, David Ritter and Paul Sheiner, ‘Administrative Avalanche: The Application of the Registration Test under the Native Title Act 1993 (Cth)’ [1999] IndigLawB 31; (2000) 4(20) Indigenous Law Bulletin 8. An application that passes the registration test vests certain procedural rights in the claimants (between the date of registration and the date of a determination of native title) in relation to future acts that may be proposed to be carried out on any part of the claimed area. See subdivision P of div 3 of the Native Title Act 1993.

[33] NTA 1993 s 66. See also Federal Court Orders O 78, r 43.

[34] NTA 1993 s 84.

[35] NTA 1993 s 86B.

[36] NTA 1993 s 136A(2).

[37] NTA 1993 s 111. See also s 110 (types of members and qualifications for appointment of members).

[38] Reports by members to the Federal Court on the progress of mediation can either be made in response to a request of the Court (s 86E) or at the initiative of the member (s 136G(3)).

[39] NTA 1993 s 86F and ss 87, 94A, 225.

[40] See Graeme Neate, Meeting the Challenges of Native Title Mediation, LEADR 2000: ADR International Conference, Sydney (2000) 16,17.

[41] NTA 1993 s 107 formally ‘establishes’ the Tribunal. See also s 253 definitions of ‘National Native Title Tribunal’.

[42] See for example North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 621–3 (Brennan CJ), 636–7 (Dawson, Toohey, Gaudron and Gummow JJ), 641 (McHugh J), 655 (Kirby J); Fourmile v Selpam [1998] FCA 67; (1998) 81 FCR 151, 152 ALR 294.

[43] NTA 1993 ss 4(2), 4(7.)

[44] See Neate, Meeting the Challenges of Native Title Mediation, above n 40, 16.

[45] Ibid 16–17.

[46] NTA 1993 s 109(1)

[47] NTA 1993 s 109(2). It is worth noting that a similar provision is made for the Federal Court’s way of operating: s 82(2).

[48] NTA 1993 s 109(3). However, the Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders: s 82(1).

[49] NTA 1993 s 127. See also s 6.

[50] NTA 1993 ss 108(2), 108(3).

[51] See Neate, Meeting the Challenges of Native Title Mediation, above n 40, 17–18.

[52] Justice Robert French of the Federal Court served as the first president of the NNTT from 1994 to 1999. Graeme Neate (1999 to the present) is the current president of the Tribunal.

[53] National Native Title Tribunal, Annual Report 1998–99 (1999) 11.

[54] North Ganalanja Aboriginal Corporation v Queensland (1966) 185 CLR 595, 657.

[55] Native Title Act 1993 s 86B(1). See Bropho v Western Australia [2000] FCA 1; (2000) 96 FCR 453, 445, 456, 461–2 (French J).

[56] On occasions the Court has referred matters to the Tribunal for mediation prior to notification occurring. This is usually where there are overlapping claims.

[57] See Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494, 498 (Madgwick J).

[58] Frazer v Western Australia [2003] FCA 351, [26].

[59] NTA s 110.

[60] Presumably, also Parliament was cognisant of the judicial observation that native title rights are sui generis and the rights and interests would differ from claim to claim.

[61] NTA 1993 s 136A(1).

[62] NTA 1993 s 136A(2). The current practice is that the President appoints a member to preside over and conduct the mediation for each application. The authority for such an appointment is found in s 123(1)(b). That member is usually assisted by a case manager and an administrative officer. See s. 136A(3) which provides for the presiding member to be assisted by another member or by a member of the staff of the Tribunal.

[63] NTA s 131A.

[64] NTA 1993 s 136A(6).

[65] NTA 1993 s 136B(1). Note that on one reading of this sub-section the member may be empowered to exclude a party’s representative from attending a conference. Compare with s 136B(2) which specifically empowers the member to exclude a representative for specific reasons. Having said that, it would be highly unusual (and unlikely to assist the development of relationships between parties) for a member to exclude a party (or its representative) from a conference by reason of the conduct of that party. It is suggested that the management of the ‘difficult’ individual would merely present as a ‘challenge’ to the skill or experience of the member.

[66] NTA 1993 s 136B(2).

[67] NTA 1993 s 136C(a).

[68] NTA 1993 s 136C(b).

[69] NTA 1993 s 136D.

[70] NTA 1993 s 136D(4).

[71] NTA 1993 s 136F.

[72] NTA 1993 s 136E.

[73] NTA 1993 s 136A(4).

[74] The Federal Court has, understandably, started to develop and express views about the interrelationship of the mediation role of the Tribunal and the overarching role of the Federal Court in ensuring the timely conduct of the ‘proceedings’. See for example the comments of French J in Frazer and Others v Western Australia [2003] FCA 351 (17 April 2003) (unreported as at the time of writing this paper) where the Court intervened to ensure that individual parties did not step away from the Tribunal mediation process and negotiate unilaterally so as to frustrate the ability of the Tribunal to report to the Court.

[75] Establishing (preferably by agreement) the relationship between the native title rights and interests and those other rights and interests is a crucial ingredient in every determination of native title. See NTA s 225(d).

[76] Emphasis added.

[77] See references to mediation in NTA 1993 ss 4, 43A, 44F, 44G, 79A, 86A, 86B, 86C, 86D, 86E, 108, 123, 131A, 131B, 136A, 136D, 136G, 136H, 183.

[78] Neate, Meeting the Challenges of Native Title Mediation, above n 40, 18.

[79] Munn v Queensland [2001] FCA 1229, para 20 (Emmett J).

[80] Smith v Western Australia (2000) 104 FCR 449, 494 (Madgwick J).

[81] See Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1977) 78 FCR 1. See Lockhart J at p.16. A further coincidence is that the Environmental Centre was represented by Jennifer Stuckey-Clarke who was subsequently appointed a member of the NNTT in 2000.

[82] See National Native Title Tribunal, Submission to Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund — Inquiry into the Effectiveness of the National Native Title Tribunal, Parliament of Australia, Canberra, November 2002, 41 [186].

[83] Roger Fisher, William L Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, 1992).

[84] See for example William L Ury, Getting Past No: Negotiating with Difficult People (1991); Robert H Mnookin, Scott R Peppet and Andrew S Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000); Roger Fisher and Scott Brown, Getting Together: Building Relationships as We Negotiate, (1991); Roger Fisher, Elizabeth Kopelman and Andrea Kupfer Schneider, Beyond Machiavelli (1994); Roger Fisher and Danny Ertel, Getting Ready to Negotiate (1995).

[85] W Ury, J M Brett and S B Goldberg, Getting Disputes Resolved (1989) describes three approaches — power-based, rights-based and interest-based — to resolving disputes. It is obvious that a power-based approach would be inappropriate in the native title context as the applicants have little or no power. The power rests with government and industry. Similarly, a rights-based approach would be inappropriate, as the law in relation to native title rights is still in its infancy and is being constantly tested, restated and modified by courts and legislature (the 1998 amendments to the Act). On this reasoning, the Tribunal’s decision to adopt the interest-based model may well have been because the alternatives were either unattractive or inappropriate — or both.

[86] The term ‘interest based or principled negotiation’ is used to distinguish this model from the earlier model (circa 1970s) of positional bargaining where a party outlined its opening position and initially refused to move from that position. Movement was gradual and by way of concessions from the other side. See Fisher, Kopelman and Schneider, above n 86, 126 for a description of the ‘concession hunting technique’.

[87] See Allan J Stitt, Alternative Dispute Resolution for Organizations (1998). This is a development of the seminal work of Ury, Brett and Goldberg, Getting Disputes Resolved (1988). Stitt, a leading Canadian mediator, has specialised in the design of ADR systems for organisations, corporations and government agencies. The material in this chapter is based on his summary of interest-based negotiation and interest-based mediation.

[88] Fisher, Ury and Patton, above n 83, 42.

[89] Ibid.

[90] Ibid.

[91] Ibid 57.

[92] Terry Mohan, Helen McGregor, Shirley Saunders and Ray Archee, Communicating!: Theory and Practice (4th ed 1997).

[93] Fisher, Ury and Patton, above n 83, 17–39.

[94] Ibid 20.

[95] Fisher, Ury and Patton, above n 83, 60.

[96] Ibid 61–5.

[97] Christopher W Moore The Mediation Process: Practical Strategies for Resolving Conflict (1986) 14.

[98] Gregory Tillett, Resolving Conflict: A Practical Approach (1991) 33.

[99] Robert A. Baruch Bush and Joseph P Folger The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (1994) 2.

[100] See Tillett, above n 98, 33.

[101] Ibid.

[102] Australian Law Reform Commission, 2000, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 459–60.

[103] Mabo v Queensland [No2] [1992] HCA 23; (1992) 175 CLR 1, 58. Emphasis added.

[104] John Sosso, ‘The Role of the Tribunal and the Federal Court’, (Paper presented at the Native Title Forum, Brisbane, August 2001) 3.

[105] In noting the points of difference I have drawn on writings by Graeme Neate and John Sosso referred to herein.

[106] Justice North, ‘From the Internet to the Outback — A World-class Court’, Native Title in the New Millennium (2001) 27.

[107] See for example Wik Peoples v Queensland [1994] FCA 967; (1994) 49 FCR 1, 6–8 (Drummond J); Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151, 175 (Drummond J); Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316, 368–9, 375; (Beaumont and von Doussa JJ); Mitakoodi/Juhnjar People v Queensland [2002] FCA 156, [12], [21] (Spender J); Munn for and on behalf of the Gunggari People (2001) 115 FCR 109, 114 [22]; Kennedy v Queensland [2002] FCA 747; (2002) 190 ALR 707, 714 [30].

[108] See National Alternative Dispute Resolution Advisory Council (NADRAC) paper on definitions (April 2002). NADRAC is an independent advisory council charged with providing the Commonwealth A-G with coordinated and consistent policy advice on the development of high quality, economic and efficient ways of resolving disputes without the need for judicial decision.. NADRAC was established in October 1995. It has its origins in the 1994 report of the Access to Justice Advisory Committee chaired by the Hon Justice Ronald Sackville, entitled Access to Justice — An Action Plan. The report recognised the need for a national body to advise the government and federal courts and tribunals on ADR issues with a view to achieving and maintaining a high quality, accessible, integrated Commonwealth ADR system.

[109] NTA ss 63, 190A–190D.

[110] NTA s 66.

[111] NTA s 84.



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