Overcoming legal ‘gridlock’

A quick statistical snapshot neatly sums up the legal difficulties associated with native title.

Presently, there are 606 native title applications awaiting resolution and most have been before the Federal Court for a matter of years.

But, of these, only four have been part-heard or are reserved for judgement and only one of the rest has a final hearing date.

This situation recently prompted Federal Court justice Ron Merkel to describe native title as being “in a state of gridlock”.

Delivering his final judgement in Broome last month prior to his retirement, the long-serving Justice Merkel used the opportunity to speak frankly about problems in the native title system.

He said the reasons for gridlock were many, but included ongoing mediation, lack of financial resources for claimant communities, failure to resolve intra-communal disputes and logistical difficulties, such as when there are multiple claimants living in remote locations.

Another “significant brake” on the resolution of disputes was that agreements must be reached between all parties, irrespective of whether the interests of a particular party were affected.

“Usually the agreement of numerous parties is required and some parties, including publicly funded parties, may have little incentive to resolve the claim,” Justice Merkel said.

He urged parties to pursue compromise agreements, particularly given that court rulings were usually on an ‘all-or-nothing’ basis.

Justice Merkel said Indigenous communities needed to appreciate the risk that pursuing a claim through the courts may ultimately fail.

To improve the system, he said, mediated outcomes should only need the approval of affected parties.

The court should be able to approve part of a claim if all affected parties were in agreement, leaving the remaining parties to resolve the outstanding matters.

Justice Merkel said greater emphasis should be placed on case management and on narrowing the contested issues to enhance the efficiency of the trial process.

He also said Commonwealth funding criteria should include whether the applicant had made a bona fide and reasonable endeavour to resolve the dispute.

It remains to be seen whether Justice Merkel’s calls will be heard by Attorney-General Philip Ruddock and Indigenous Affairs Minister Mal Brough, who are currently finalising what the federal government has called its ‘practical plan’ for reform of native title.

The thrust of their reforms is to link funding for both native title claimants (i.e. Aboriginal groups) and respondents (such as mining and pastoral groups) with effective agreement making.

There have been widespread calls for extra funding for native title representative bodies, which have faced a big increase in their workload as a result of the mining boom.

Less attention has been paid to respondents, such as the Pastoralists and Graziers Association of WA, which is involved in about 100 native title claims involving more than 400 pastoralists.

PGA policy director Henry Esbenshade said the association would not be able to represent its members if it did not receive federal government funding for this purpose.

Separate to the federal reforms, the state government has introduced a number of measures in recent years to help clear the 130 native title claims in WA.

Its latest proposal, floated late last year, was for the introduction of an alternative settlement framework.

The new framework would benefit Indigenous groups which may have difficulty satisfying the legal requirements for native title. In particular, the ‘connection’ test would be less onerous.

The trade-off was that Indigenous groups would be able to negotiate a settlement in exchange for the surrender of possible native title rights.

Business groups are wary of this proposal, with the PGA concerned that agreements involving non-native title outcomes could set harmful precedents that prejudice the resolution of adjoining claims.

Other state government initiatives included the introduction in 2004 of standardised heritage protection agreements, designed to speed up the processing of prospecting and exploration licences.

The first of these agreements, covering the Goldfields region, is currently subject to review but the Association of Mining and Exploration Companies has already raised concerns.

AMEC said its members believe the agreements lack legal and administrative rigour, the process for heritage surveys takes too long, and some areas are surveyed repeatedly.

They have also encountered continuing problems with overlapping claim groups objecting to their tenements being granted in the expedited process.

AMEC members have raised multiple concerns about the way native title policies are implemented generally. For instance, there is a consultation process in cases where native title parties object to the planned development of infrastructure such as pipelines or haul roads.

However, there is no required timeframe for the consultation process and only native title parties are able to refer the matter to an arbitrator.

“The industry is regularly held to ransom by the impasse in the right to consult process,” AMEC chief executive Justin Walawski said.

“There have been instances of major projects being delayed in excess of 18 months due to the inability to break the native title impasse.”

The PGA has also criticised the ‘right to negotiate’ provisions, which it believes remove the incentive to move towards a mediated settlement.

The state government has sought to tackle this problem by granting tenement application unless the native title party refers a disputed matter to a designated independent mediator.

AMEC has also criticised the legal tactics employed by some native title groups.

This includes lodging formal objections with the Mining Warden to planned infrastructure developments.

It has accused the Yamatji Land & Sea Council and the Pilbara Native Title Service of being “particularly aggressive” in pursuing these applications based on procedural entitlements.

“Clearly these type of objections are an abuse of the statutory process and are not based on principled objection,” AMEC said in a parliamentary submission.

The Yamatji council has rejected these claims, citing Mining Warden’s rulings to back its view that “the objections are therefore principled and are not an abuse of the process”.

Yamatji executive director Simon Hawkins believes AMEC has painted an “overly critical” picture, and says the majority of matters are settled “in a straightforward and efficient manner between proponents and native title claimants”.

Mr Hawkins always seeks to settle matters through mediation but, like other parties, reserves the right to take legal action.

Atlas Iron managing director David Flanagan typifies the small exploration company executive who has to carve a path through the complexities of native title.

His company, which is seeking to develop an iron ore project near Port Hedland in the Pilbara, passed a major milestone in March when it reached an in-principle agreement with the Ngarla Aboriginal people.

Like other mining companies negotiating native title agreements, Atlas had to commit substantial time and money to the process, with one of the biggest costs being the estimated $250,000 spent on heritage surveys.

“The most significant thing we did was to sit down with the people and talk to them about what they really wanted,” Mr Flanagan said.

Perhaps there is a lesson there for other business groups wanting to pursue developments.