Native Title Respondent Funding Submission, January 2006

Native Title Respondent Funding

SUBMISSION, JANUARY 2006

Aboriginal and Torres Strait Social Justice Commissioner, Tom Calma

Role of the Aboriginal and Torres Strait Islander Social Justice Commissioner

The Aboriginal and Torres Strait Islander Social Justice Commissioner under section 209 of the Native Title Act 1993 (NTA), is required to report annually to the Commonwealth Attorney-General on the operation of the NTA and its effect on the human rights of Aboriginal and Torres Strait Islander peoples. As part of this role, the Commissioner also provides submissions to government reviews and inquiries in relation to the operation and effectiveness of the native title system. It is in this capacity that the Commissioner provides the following submission in response to the Draft Proposed Guidelines for Financial Assistance Scheme, released on 23 November 2005.

Purpose of this submission

The consultation regarding the Financial Assistance Scheme is part of a package to reform the native title system as announced by the Attorney-General in September 2005. Other areas of reform include:

• measures to improve the effectiveness of Native Title Representative Bodies (NTRBs);
• an examination of the current structure and processes of Prescribed Bodies Corporate;
• technical amendments to the NTA designed to improve existing processes for native title litigation and negotiations;
• review of the claims resolution process; and
• promoting more transparent practices in the resolution of native title issues between Commonwealth, State and Territory Governments.

 On October 13, 2005 I wrote to the Australian National Audit Office (ANAO) and expressed my concerns about how the scheme currently operates. This submission is consistent with the views that I presented to the ANAO, and I welcome the opportunity to comment on the Attorney-General’s Financial Assistance Draft Guidelines 2006 (Draft Guidelines).

Eligibility for Assistance

Eligibility for assistance for respondents under the Attorney-General’s existing Financial Assistance Guidelines scheme has been broadly defined, making assistance available to individuals, partnerships, small businesses, local government bodies, incorporated and unincorporated groups and peak bodies or organisations.

It is pleasing to note that eligibility terms have been given greater definition in the Attorney-General’s proposed Financial Assistance Draft Guidelines 2006. Part V section 18 of the Draft Guidelines states that a person must be either be a party, intend to be a party, or be in a dispute with another person about a matter in order to be eligible for assistance.

Consistent with this approach the term party is also defined more specifically in the definition section of the Draft Guidelines. The Draft Guidelines define party to mean a person who:

• is a party to an inquiry, mediation, proceeding, negotiation;
• had entered into an ILUA; and
• has entered into an agreement under subsection 44B (3) of the NTA.

In my view this definition will limit the number of unnecessary third party applications and decrease the time taken to resolve native title matters.

Eligibility for assistance

The Draft Guidelines are far more organised and specific in language than the current guidelines in relation section 183(3) of the NTA. In particular, the Draft Guidelines set out more detailed requirements in relation to the ‘reasonableness’ of the application for assistance. In terms of ‘reasonableness’, the Attorney-General must be satisfied that:

• • Assistance can not be received from another source.1
  • Assistance is carried out in accordance with the guidelines.2
  • The provisions of assistance must be reasonable in all of the circumstances.3

The additional tests for reasonableness provide greater safeguards to the native title process, and potentially improve the timeliness and the relevance of processes regarding native title agreements or disputes.

I am also pleased to note the inclusion of section 20 and 23 of the Draft Guidelines which state that it is not reasonable to authorise assistance if the applicant’s interest is:

• a previous exclusive possession act; or
• Native Title has been extinguished according to law; or
• the Applicants interest is a low impact future act; or
• if the applicant’s interest is a scheduled interest.

Overall, the Draft Guidelines provide a more rigorous test of ‘reasonableness’ which is appropriate given the protection afforded to non-native title interests under the NTA and confirmed by the High Court in Miriuwung Gajerrong. More focused guidelines may assist in streamlining the native title process and ultimately facilitate the timely resolution of claims.

Compared with the existing guidelines, the new Draft Guidelines set out more detailed conditions relating to the conditions under which respondents may receive financial assistance. Under the new Draft Guidelines the financial resources of an applicant will be assessed4 and that the applicant may be required to contribute to the costs of assistance. However, this last provision is quite general and appears to apply only from time-to-time, as determined by the Attorney-General. Such general terms are unlikely to lead to increased accountability amongst applicants and I would recommend this provision clearly set out that the financial resources of applicants will be assessed and at a certain threshold, and under specific conditions,  applicants will be required to contribute to the costs of participating in native title processes.

I am pleased to note that the Draft Guidelines provide that ‘it will generally not be reasonable for assistance to be authorised for the separate representation of the applicant’5 where a group representative is funded.’

The remaining interpretations are similar to those in the current guidelines. Because of this I am concerned that the Draft Guidelines do not go far enough to limit unnecessary third party participation. A telling example presented in our Native Title Report 2003 describes a situation in the Torres Strait where the Attorney-General funded the Queensland Seafood Industry Association (QSIA) to be a party to several land claims, even though they did not have an interest in areas above the high water mark. This kind of involvement where there are no interests at stake, increases costs and raises longer term tensions6. There is significant doubt whether the Draft Guidelines could avoid such a situation. I submit that a more effective approach would be too make applicants demonstrate that their legal rights are not protected under the NTA and the Common Law before financial assistance is made available.

In making this recommendation I recognise that native title is a co-existing right so it may be necessary to support tenure holder’s engagement and negotiation with native title claimants/holders over the use of land. This might include negotiating an ILUA to establish the framework for native title holder’s access to pastoral properties. I therefore argue that funding for agreement making processes should be maintained, but subject to the articulated constraint.

External Professionals

Under the existing guidelines, respondent funding is also used to engage anthropologists and historians. However, the State as a primary respondent to native title proceedings is required to engage historians and anthropologists to examine assess and challenge the historical and anthropological evidence presented by the claimants.

Funding additional historians and anthropologists to provide reports to respondents is unnecessary; it duplicates resources and consumes time. Further, challenges presented by third party respondents in anthropological and historical matters often cause a great deal of unnecessary distress to native title claimants. Claimant evidence is tested by the State and does not require further examination.

The Draft Guidelines are not explicit on this point. However, section 44 of the Draft Guidelines requires that legal practitioners and other persons who provide services, covered under the grant of assistance must be included in the Native Title Practitioners Panel. This suggests that anthropologists, historians and others may still be contracted by third party respondents to participate in native title proceedings.

I recommend that funding for anthropologists/historians only be available to respondents where the State is not involved in proceedings, that is, when agreement is being negotiated between native title claimants and an existing tenure holder.

I hope these comments are helpful. Please contact Yvette Park on 02 9284 9785 or email yvettepark@humanrights.gov.au if you have any queries.

Yours sincerely,

Tom Calma,
Aboriginal and Torres Strait Islander
Social Justice Commissioner

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Footnotes

Last updated 21 August, 2006