Editors --- "Native Title: A Five Year Retrospective 1994-1998 Report on the Operations of the Native Title Act 1993 and the Effectiveness Of The National Native Title Tribunal - Digest" [1999] AUIndigLawRpr 36; (1999) 4(3) Australian Indigenous Law Reporter 117

Native Title: A Five Year Retrospective 1994-1998

Report on the Operations of the Native Title Act 1993 and the Effectiveness Of The National Native Title Tribunal

National Native Title Tribunal,

Perth, February 1999

This was the final report produced during Justice French's five-year term as President of the National Native Title Tribunal. The Report is designed to review the operations of the Native Title Act 1993 (Cth) and the effectiveness of the National Native Title Tribunal. A key concern of the Report is to trace the Tribunal's response to the dramatic growth in native title applications over the last five years, focusing on the tribunal's central objective of promoting agreements through mediation and negotiation, either as part of the process of determining native title, or as part of the future acts regime. It emphasises the practical measures formulated by the Tribunal to meet this objective in the light of a constantly changing legal and policy context. During this five year period, the National Native Title Tribunal has developed a unique and effective alternative dispute resolution process. The Report provides a comprehensive overview of the NNTT's practices and procedures, as well as indicating the advantages of negotiation and mediation in the native title context. As evidence of this, the Report points to the numerous agreements reached under the future act regime, and provides a useful state-by-state breakdown of native title applications and agreements.

An important part of any successful mediation is the involvement of stakeholders and community. The third part of the report focuses on the Tribunal's corporate strategies to inform and educate these groups with respect to native title issues. According to the report, the profound lack of community understanding of native title must be overcome before informed participation in mediation can take place.

The final part of the Report considers the Tribunal's responsibility to carry out its functions in a culturally-sensitive manner which is informed by the customary concerns of Indigenous people. This responsibility is discussed in the contexts of the Tribunal's role as employer, impartial mediator and provider of research and community education.^[1]

Message from the President of the National Native Title Tribunal, Justice Robert French

This document reports on the operations of the National Native Title Tribunal and its effectiveness under the Native Title Act 1993. It covers the period from the commencement until the 1998 amendments began to operate (I January 1994 to 29 September 1998) and the evolution of native title practice in Australia during that period.

As I have remarked before, the Tribunal's mission is one constant in an operating environment that is always changing and presenting new demands and challenges. When the Tribunal opened in 1994 it had a single office in Perth with a staff of two people and in its first calendar year received 45 native title applications. By September 1998 the Tribunal had a registry in six state and territory capitals, regional offices in Cairns and Kalgoorlie, and had more than 700 native title applications before it for mediation.

Five years ago, no-one could have envisaged the dramatic growth in the number of native title applications and the associated workload, nor the Federal and High Court judgements which have fundamentally altered the Tribunal's methods of operation. While changes to the Act were envisaged from early on, and indeed had been advocated by the Tribunal since 1994, the degree of acrimony and misunderstanding which characterised much of the debate towards the revision of the Act was disappointing, and created a difficult climate for the Tribunal to carry out the important work of progressing mediations.

In spite of these challenges, the Tribunal staff have displayed dedication and commitment in pursuing native title and future act mediations and have contributed significantly to the developing culture of mediation and negotiation which has resulted in 257 significant native title determination related agreements. The Tribunal was directly involved in the mediation of the majority of these agreements. In addition, the future act process has resulted in 1092 agreements, which are typically confidential and struck between parties without direct Tribunal assistance. A by-product of this work has been the development in the Tribunal of a national resource of information and expertise in the management of native title applications.

The passage of the Native Title Amendment Bill on 8 July 1998 represented the beginning of a new phase in native title practice and the operations of the Tribunal. While Federal legislative change may be complete, at least for the foreseeable future, the pattern of change and new challenges is likely to remain a feature of the operating environment as the Tribunal responds to stakeholder expectations and judicial interpretations of the new Act's provisions. It will also adapt to the establishment of equivalent bodies in states and territories which may partly adopt the functions of the Tribunal and in Western Australia may adopt all of its functions.

Regardless of changes in the law and the advent of equivalent bodies, the Tribunal's central objective for nearly five years – the promotion of agreements through mediation and negotiation – will remain at the heart of successful management of native title in the future. This is particularly so given the incorporation into the new Act of proposals promoted by the Tribunal and others for indigenous land use agreements. The importance of mediation was recently echoed by Senator Minchin who said it was the Government's view that:

fair negotiated agreements are the best way of resolving native title issues and are clearly preferable to expensive and protracted litigation.^[2]

While there will always be points of law and particular issues which require resolution through litigation, the Miriuwong-Gajerrong case is a stark illustration of the prospective costs and investment of time required in litigating a resolution of native title claims. Justice Lee's orders that the parties might consider seeking the Tribunal's assistance in putting the determination into practical effect highlights that litigation, and indeed, the statutes, will never be a substitute for direct negotiation to resolve the daily issues of living side by side.

The normalisation of stakeholder relationships following the polarising debate of recent years, growing community understanding of native title, and the achievement of a critical mass in the Tribunal's development of expertise, is likely to be demonstrated in the signing of several more consent determinations of native title in 1999, particularly in Queensland. I would emphasise that such agreements are, as always, contingent on the good will of the parties concerned, whether indigenous people, pastoralists, miners, local or state and territory governments. The Western Sunset Yalanji (QLD) consent determination on 28 September 1998 represented a significant breakthrough in showing that, with patience and perseverance, disparate interests can achieve mutually beneficial agreements.

As this is my final report before my retirement as President of the Tribunal on 31 December 1998, I would like to record my appreciation to past and present staff of the Tribunal for their efforts and to the many people, indigenous and non-indigenous, who have adopted a positive and constructive approach to the resolution of native title issue.

...

Fig 2 - Claimant applications active in the Tribunal by State as at 30 September 1998

...

SECTION 1: PROMOTE PRACTICAL AND INNOVATIVE RESOLUTION OF APPLICATIONS UNDER THE NATIVE TITLE ACT 1993.

A. Mediation of Native Title Applications

(i) Role as mediator

The mediation practice of the National Native Title Tribunal took as its base standard principles and techniques of principled negotiation. The unique and contentious subject matter and operating environment required the adaptation of those procedures. The Tribunal tried to be responsive to the needs and interests of all parties. It recognised that its neutrality was a necessary condition of winning the confidence of participants. In the early stages of its life, the President of the Tribunal announced to staff and Members what he called the 'eyebrow rule'. That is to say, however outrageous the statements that may be made to an officer or Member of the Tribunal in the course of mediation work, not even an eyebrow should be raised. This rule was repeated from time to time as a simple and graphic way of illustrating the need for Tribunal Members and officers to put aside their own personal views and work as facilitators for the parties. Generally, there was a strong acceptance within the Tribunal of the importance of detachment in dealing with negotiating parties.

Mediation of native title claims was by its very nature slow and painstaking and this often attracted comment that the process was not achieving results as quickly as some might expect. Nevertheless it was the preferred path for the resolution of native title issues for two primary reasons:

• it was less adversarial than lineation and more likely to lead to mutually, supported outcomes and enduring relationships; and
• it was less expensive and stressful for all parties than resolving native title applications through Federal Court litigation.

This was a view echoed by the Australian Law Reform Commission in its review of adversarial and alternative dispute resolution systems. The Commission identified native title mediation as a unique alternative dispute resolution practice with many benefits including lower costs, practical solutions and ownership of outcomes by the participants.^[3]

The Miriuwong-Gajerrong case illustrated the potential costs and time frames associated with litigation. The native title application was mediated by the Tribunal for a relatively short period until it reached a point where there was unlikely to be any further progress. The application was referred to the Federal Court in February 1995, hearings were completed in early 1998 and a judgement was delivered on 24 November 1998. At one point, the Western Australian Government indicated that it had spent $3.36 million^[4] on the case. For its part the Aboriginal and Torres Strait Islander Commission estimated that it allocated $1.3 million to the case^[5] and these costs did not take account of the time and financial costs of all other parties. By way of comparison with negotiated agreements, the cost of the Cape York Heads of Agreement for the Cape York Land Council was estimated at $20,000; and the NSW Aboriginal Land Council received a grant of $46,860 to manage the Crescent Head native title consent determination.^[6]

For these reasons, the Tribunal was prepared to assist parties to remain in mediation where there was some prospect of progress. This was a matter of judgement, and, with the benefit of hindsight, it was arguable that, on occasion, the Tribunal referred some applications to the Federal Court too soon; others too late. In some instances there was a timely referral of a claim because of a significant issue which required a judicial decision. The referral of the Croker Island sea claim was an example, where the Federal Court made a significant decision in relation to native title rights to coastal waters. In other cases it might be argued that a claim was referred in circumstances where further outcomes may have been achieved in mediation.

The following questions guided the Tribunal in determining whether applications should be referred for trial:

• were there prospects of a native title agreement?
• were there prospects of a non-native title agreement?
• were there prospects of reducing the number of issues?
• were there prospects of reducing the number of parties?
• what was the attitude of each party to referral?

The Yorta Yorta claim, spanning the Murray River and extending across New South Wales and Victoria, was referred to the Federal Court once it had become clear that the threshold issue of recognition of native title on inland waters was not agreed. The presiding judge, Justice Olney, commented that mediation could have been used to resolve many of the central issues of the claim.^[7] A process for returning to mediation was appropriate in some cases and was advocated by the Tribunal for some time. A mechanism for this to occur was provided in the recent amendments to the Act.

The Tribunal had some success by pursuing mediation when some of the parties to the mediation pressed for referral. It was not always easy to judge when a breakthrough would occur and persistent and patient effort often produced results in unlikely circumstances. Moreover, lessons learned in a particular mediation were rapidly applied to other similar circumstances around the country.

While the Tribunal operated as a mediation service for nearly five years, there was a misconception that its role was to make findings about the existence or otherwise of native title. This perception was evident early in the Tribunal's existence, and at the time prompted the President, Justice French, to suggest that the Tribunal be redesignated the National Native Title Mediation Service to avoid any continuing confusion about its role.^[8]

The confusion about the Tribunal's role, coupled with the misconception that it is in place to serve indigenous interests alone, demanded that the Tribunal was vigilant about maintaining its impartiality in order to establish relationships of trust with all parties. Some of this misapprehension about the Tribunal's independence stems from the fact that the Native Title Act 1993 specified that one of the objects of the Act was to 'provide for the recognition and protection of native title', an object which remained in the amended Act.

A Conflict of Interest, which set out the duties and obligations of staff in relation to neutrality and partiality, formed part of the induction process for new officers. Similarly, the President of the Tribunal drew to the attention of Tribunal Members the importance of avoiding any conflict, or perception of conflict, between their official role and their private interests.

In one case, a full time Member of the Tribunal made a public speech attacking the Coalition Government's proposed amendments to the Native Title Act 1993. Following discussions with the President, the Member withdrew from all but some outstanding intra-indigenous mediation work and, pending consideration by him of his future, was asked to address procedural reform within the Tribunal. Subsequently, the Member resigned from the Tribunal and took up another position. The President of the Tribunal endeavoured to provide leadership in this area by making it clear in public addresses or media interviews that the Tribunal would not be drawn into debate on politically contentious issues affecting the future of the Act. It should be understood, however, that Tribunal members are statutory appointments can only be removed from their positions by Parliament.

(ii) Development and application of procedures

The Tribunal generally tried to be pragmatic and outcome oriented rather than cautious and legalistic in its approach to the management of native title applications. In some instances, Court decisions prompted the Tribunal to revise its procedures.

The Tribunal initially took the view that the Parliament intended that a claim would not be registered until after it has passed the acceptance test and would not gain the right to negotiate until that test had been passed.

However the Federal Court in Northern Territory v Lane (1995) 59 FCR 332, 138 ALR 544, established that registration of a native title application should occur at lodgement. This meant that applications for a determination of native title had to be entered on the Register of Native Title Claims immediately after lodgement, thus attracting the right to negotiate prior to the acceptance test applied.

Also significant was the Waanyi decision of the High Court [1996] HCA 2; (1996) 185 CLR 595, which made it clear that the Tribunal, in applying the acceptance test, could not decide arguable questions of law or fact. It was held that the Tribunal could also not have regard to information other than that provided by the applicants except for the limited purpose of determining, by reference to the conduct of an applicant, whether an application was frivolous or vexatious. It was often a matter of public consternation that the Tribunal had little ability to reject applications which, in the popular view, were 'ambit' or otherwise unmeritorious claims. The Tribunal rejected 19 applications nationwide.

Prior to the Waanyi decision the Tribunal's practice was to apply the acceptance test, in part upon the basis of tenure information obtained from state and territory governments. In a number of cases this led to refinement and a narrowing of the scope of applications. The Waanyi decision effectively precluded the Tribunal from taking that approach.

In March 1997, the Federal Court decided in WMC v Lane (1997) 143 ALR 200, 73 FCR 366, that the Tribunal must individually notify all people who held a registered proprietary interest in an area covered by an application. Prior to this decision, the Tribunal notified as many registered proprietary interest holders as possible, depending on the number of interest holders and the cost of obtaining current tenure and interest holders' contact details from state and territory governments.

It also relied on public notification. Giving individual notice was a costly and labour intensive practice, but the Tribunal incorporated this practice into its case management procedures following the Court's decision. The Western Australian Government took this principle further, raising questions about whether the Tribunal should notify public housing tenants who have shared equality interests with the public housing agency Homeswest in Crown freehold properties.^[9] In this instance, the Tribunal decided to treat land held jointly by the Crown and a private individual as if it were private freehold for the purposes of notification and acceptance and therefore did not notify.

It was also Tribunal practice, although it was not a statutory requirement, to conduct a 'mini' notification on the lodgement of an application so that key stakeholders, such as state or territory governments and peak interest bodies, were given early advice.

The Tribunal structured mediations to maximise parties' opportunities to engage in constructive negotiations with each other. Before plenary conferences, the Tribunal met informally with individual parties to explain the process so they could participate from a position of knowledge and understanding. Where agreed by the parties, the Tribunal held a status conference with the main parties soon after acceptance of the application to identify the key issues.

Plenary mediation conferences were held in informal settings at locations and at times which were of convenience to the parties. The scale of these enterprises was immense: a recent mediation conference held in South Australia in relation to the Kuyani No 2^[10] claim involved 880 registered parties meeting in Port Augusta over three days. Given the large numbers involved, groups and individuals were clustered on particular days where there were common interests or concerns.

The Tribunal also had a statutory requirement to provide assistance to applicants by organising meetings to discuss the form of an application, the provision of high quality maps, and tenure searches. Assistance was also provided to people other than applicants by convening and speaking at meetings, presenting seminars and workshops, providing written information and having discussions with interest holders.

In order to assist parties engaged in mediation, the Tribunal, in consultation with stakeholders, laid down indicative time frames for mediation. These time frames were published in April 1996 and set out notional time periods between the acceptance, notification, plenary conference, framework agreements, heads of agreement in principle, and final agreement. While serving as a guide, the Tribunal recognised that the imposition of time frames would not of itself drive parties to reach agreement earlier or reach agreement at all. Indicative time frames set for the period between lodgement and acceptance of native title applications (14 days) were rarely met – primarily because of the detailed work the Tribunal undertook with applicants to:

• refine the description of asserted native title rights;
• remove or refine tenures covered by the application;
• resolve intra-indigenous issues; and
• collate tenure information from State and Territory land management agencies.

The Tribunal used technology to further the making of agreements. An interactive database of template agreements was developed to assist Tribunal staff and negotiation parties. There was a wide range of agreement templates which could be downloaded, printed and modified to suit the needs of the parties. Tribunal officers engaged in mediations in the remotest parts of Australia used laptop computers to access the database, and prepare agreements in the terms sought by the parties.

Mediation practice – the core activity of the Tribunal – was subject to a critical review conducted by an officer from the WA Regional Office of the Department of Finance which commenced in October 1995. Its terms of reference were:

• to evaluate the mediation and associated Tribunal work processes, paying particular attention to their efficiency, application, and effectiveness in assisting to meet Tribunal objectives and the needs of native title parties; and
• to assess the relevance and application of existing performance information.

A survey of stakeholders was conducted and their input sought. There were criticisms and some praise for various aspects of the Tribunal's mediation practice.

The final report was published by the Tribunal and was made publicly available.^[11] The 43 recommendations contained therein were progressively adopted.

The Tribunal adapted its mediation practice to manage the resource implications of the significant growth in the number of native title applications. This involved developing the Differential Allocation of Resources Policy which involved targeting resources to accelerate the mediation of some applications before the Tribunal.

Applications were assessed according to 11 criteria including their state of readiness for mediation, the level of intra-indigenous conflict, the ability of the applicants to form a body corporate and develop management plans and the attitude of the state or territory government to the application. Applications which were sufficiently developed to meet the criteria were given extra assistance to enter the mediation phase, and other applications were classified as requiring further preparation before mediation or for quick referral to the Federal Court because of irreconcilable issues. The policy, which involved wide consultation with stakeholders, was in its most advanced stage of implementation in Queensland.

(iii) Number of agreements

Mr Brooks said the National Native Title Tribunal, involved from the start with the negotiations, was crucial to the agreement. ^[12]

An audit by the Tribunal indicated that, at the end of September 1998, there were 1349 agreements struck by native title parties nationwide which were indicative of a developing culture of mediation and negotiation. Of these, 257 related to native title determination applications while a further 1092 were future act related agreements. The Tribunal played a direct, mediation role in the majority of the native title determination related agreements, and a lesser role in the future act agreements which were predominantly agreements arrived at between parties without the direct assistance of the Tribunal.

Fig 3 - Agreements by State and Territory, 1994-1998

(future act agreements included)

While there was no statutory requirement on the Tribunal, as a mediation service, to monitor the number of agreements reached between parties, it carried out this national audit to compile a retrospective record of all manner of agreements in all states and territories. The completion of this database was timely, because in the heat of the recent political debate over the Native Title Act amendments it became fashionable to argue that the National Native Title Tribunal delivered little in the way of outcome for the community because there were only two agreed determinations of native title on the Australian mainland. Senator Harradine, for instance told 2BL's Richard Glover program that

out of the hundreds and hundreds of applications under his (Mr Keating's) Act, only two have been determined. Now that's not working. ^[13]

This limited measure of outcomes failed to recognise two things:

• that the Tribunal, as a mediation service and not a court, was unable to impose agreements on impose agreements on parties, and in any case did not make determinations of native title, (that was the role of the Federal court);
• that the Native Title Act 1993 allowed for non-native title resolution. Mediated agreements between native title claimants and other stakeholders which did not involve formal determinations of native title still represented meaningful and practical outcomes of the process.

It was a common misconception that native title determinations were the end point in the process of resolving native title applications. A court determination of native title was not in itself an agreement, and required the parties to negotiate about its implementation. For many parties, entering into mediation following the lodgment of a native title application offered the opportunity of addressing both a consent resolution of the claim and agreement about how native title rights would be exercised while recognising the rights and interests of others.

Since January 1994, the Tribunal was involved in mediating hundreds of agreements which indicated substantial progress in mediation throughout Australia. The success of any mediation depended on the goodwill of the an outcome.

The native title determination related agreements documented in the audit ranged from consent determinations of native title to intra-indigenous agreements over boundaries of applications. For the put purposes of this paper, agreements were defined as an outcome reached with the active participation or two or more parties. Many of these involved the Tribunal as a mediator or participant. It should be appreciated that there are many more Tribunal sponsored outcomes involving only one party which were not included in the audit, but which were a significant part of the Tribunal's workload. For instance, in the South West region of Western Australia, the Tribunal encouraged many applicants to amend their applications to conform with the State Government's published preconditions to mediation. While the amendments were in direct response to the State Government's negotiating preconditions, they were not recorded as an agreement.

It was clear from the data that the number of agreements reached rose significantly each year as parties developed an understanding of the process, built relationships of trust and appreciated the importance of progressing in mediation as opposed to litigating an outcome.

Fig 5 - Major components of native title agreements (non future act) 1994 -1998

There might be a number of agreements for any one claim or a group of claims. This reflected the nature of native title mediation. Intra-indigenous agreements were necessary precursors to agreements with other parties. The Hopevale determination, for instance, was preceded by several substantive agreements in that community which were recognised as significant steps through the mediation process (see Fig 6). The data gathered by the Tribunal demonstrates that many native title applications around Australia passed a number of milestones on the path towards a consent determination of native title .

The agreements achieved through future act processes were predominantly confidential agreements between native title applicants and mining companies, and most related to Western Australia.

While there was considerable focus on applications for determinations of native title by indigenous people, it should also be, appreciated that the Tribunal also handled non-claimant applications for a determination of native title. Typically, non-claimant applicants were government agencies seeking a determination that native title did not exist in a particular area so that, for instance, a development might proceed.

(iv) Indigenous issues

One of the main impediments to mediation was the phenomenon of overlapping applications. While a number of people or groups may have had rights to a particular area under Aboriginal custom, and thus be reflected in overlapping native title claims, there were many instances of people with similar rights making separate claims. The Tribunal and Representative Bodies devoted considerable effort to resolving these latter claims. This was mainly through formation of forums through which claimants discussed their interests and through development of a united position could withdraw or amalgamate claims, or at least agree to work co-operatively on non native title outcomes. As at September 29, 1998, 89 claims were withdrawn nationally and in most cases these claimants negotiated to join other claimant groups.

In one of the areas where overlapping claims were prolific, the Goldfields of Western Australia, the Tribunal established a mediation service. The service, which opened in August 1996, assists parties engaged in negotiations over future act and claimant mediation matters. It provided administrative assistance to all parties, particularly prospectors and small operators involved in future act (right to negotiate) negotiations. The Tribunal also established the Goldfields Mediation Council, a standing body of stakeholder groups which met quarterly to discuss the means of advancing the negotiation process and developing model agreements.

The Aboriginal and Torres Strait Islander Social Justice Commissioner was required by s 209 to report on the operation of the Act.

In the context of this document, the Commissioner's four annual reports dating from June 1994, included, inter alia, comment about the operation of the Tribunal, the implication, of its mediation processes and community information programs and the relative balance of power between the parties involved in native title mediation.

In broad terms it might be said that the Commissioner was supportive of the strategy of mediation pursued by the Tribunal. However this was not without some important qualifications. The Commissioner's 1995 report argued that the basic power imbalances between claimants and non-claimants, embedded through the historical experience of their relationships, provided a cogent argument for continued effort on the part of the Tribunal in its promotion of an equal bargaining status in the course of mediation:

Claimant's lack the resources and assistance they need to negotiate as equals. By fine-tuning the mediation process the Tribunal may be able to improve the claimant's experience of it, but such change will not affect the power imbalance that exists outside mediation meetings. The Tribunal may not be in a position to redress historical or resource inequality but it must not conceal it. If, in any particular mediation, this inequality seems likely to lead to an unfair bargain then mediation is inappropriate and the Tribunal should acknowledge this.

...For mediation to work as a means to resolve native title claim, the context must promote equal bargaining. The Commonwealth, the Tribunal and other stakeholders must work to create conditions necessary for long term, comprehensive settlements.

In its development of a native title-based alternative dispute resolution regime and in accordance with the Act and its Charter the Tribunal had regard to those principles of equity the Commissioner recommended as essential to sustainable resolution of native title. The continual development and refinement of mediation and community information practices (discussed throughout this report) were the practical response of the Tribunal to this proposition.

	New South Wales / ACT	Victoria	Northern Territory	Tasmania	South Australia	Western Australia	Queensland	Total
Native title claims currently before tribunal	112	38	31	0	28	288	212	709
Claims referred to the Federal Court	5	1	7	0	2	39	4	58
Claims rejected by the Tribunal	7	2	1	3	0	4	2	19
Claims withdrawn by applicants	7	2	0	0	0	56	24	89
Determinations of native title	1	0	0	0	0	0	3	4
Total number of claims lodged with the Tribunal since 1.1.94	132	43	39	3	30	387	245	879

The position of state and territory governments as parties to native title applications was critical. While other parties were prepared to negotiate a land use agreement independent of government, when it came to a determination of native title, most parties took their lead from the position of the state or territory. Most state and territory governments had a policy position which they took into mediation of native title applications. A common theme was that they wished to be assured that the claimant group was comprehensive and that they could show the elements of native title derived from a continuing connection to the area and practice of custom.

In measuring the Tribunal's effectiveness, it was important to appreciate the operating environment was not consistent across all states and territories. Western Australia, for instance, was a vigorous advocate of its special circumstances as the State which generated nearly half of all native title applications, a fact which it believed was potentially deleterious to the mining industry, a mainstay of the local economy. Further, there were regional variations in the approaches to negotiation of the peak groups representing key stakeholders.

These geographic idiosyncrasies added a challenging dimension to the business of mediation in some states and territories. For the Tribunal, it meant adopting flexible practices and procedures in order to forge sound working relationships and progress mediations as fair as possible by adapting to local circumstances while maintaining national standards.

The Tribunal held a Workshop for state and territory governments in Canberra in April 1997 to raise awareness of the various regional approaches and to discuss issues of common interest such as the quality of geospatial information and models for regional agreements.

South Australia Government

The South Australian Government stated in correspondence that, at least in respect of claims over pastoral lands:

the Government does not expect that claimants in this State will be able to establish the preconditions for the recognition of common law native title.^[14]

Such an approach limited the possibility of consent determinations of native title in mediations, yet the State Government opposed the referral of applications for Federal Court resolution because it preferred to pursue area agreements for which there was provision in the amended Act. In response to the South Australian Government's approach, Tribunal Members mediating native title claims in South Australia consistently highlighted the difference between native title and non-native title outcomes in order to fully explore the potential for outcomes through the mediation process.

Indigenous and non-indigenous parties to mediations, other than the State, sought to address local issues through the mediation process, while the State I approach was arguably pitched at a peak body level.

The Tribunal was thus in the position of facilitating what were effectively 'good neighbour' agreements at the local level which, while addressing many immediate concerns, did not satisfy native title applicants' aspirations for recognition of their common law rights. Peak bodies tended to reserve their position on recognition, or at least maintained some flexibility in their views on the matter, and actively facilitated local agreement making. The State stood outside this process, with negotiating parties ensuring that the State was informed of progress at key points.

Just prior to the passage of the amendments to the Native Title Act, Tribunal Members and staff in South Australia contemplated referral of a number of South Australian applications under s 74 of the 1993 Act, where applications did not meet a specified standard of preparation within a six month timeframe.

However, the passage of the amendments intervened before this policy shift took place. All applications in South Australia will now be considered under the terms of the registration test set out in the amended Act.

Western Australian Government

The Western Australian Government established a series of preconditions to entering into mediation including that:

• the claim did not overlap with any other claim;
• the application was amended to acknowledge the validity of other titles;
• the application was amended to exclude some forms of title; and
• the claimants provided a report addressing 11 points of connection and continuity of connection to the land.

If these preconditions were met, the State was prepared to negotiate a consent determination. However, by its own reckoning, the State Government was involved in only one formal mediation under the Native Title Act 1993. This was the mediation on the Karajarri No 2 claim in the West Kimberley region.

By September 29 1998, there were no consent determinations of native title in Western Australia, although there were two in Queensland and one in New South Wales.^[15] The Tribunal endeavoured to progress mediations by encouraging applicants to bring their applications within the parameters set by the State. However, with a high proportion of native title applications in Western Australia overlapping to a greater or lesser extent (approximately 250), the opportunities for progressing negotiations were necessarily limited by these criteria. Thus the Tribunal invested considerable effort in addressing overlaps and encouraging the resolution of differences between claimant groups.

There were 14 mediations, sometimes involving a group of claims by the same applicants, where negotiations were well advanced between applicants and the State about meeting the State's preconditions for mediation.

The Western Australian Government showed willingness to entertain non-native title outcomes which would give rise to permanent statutory titles on areas of Aboriginal reserves and vacant Crown land. Accordingly, the Tribunal devoted considerable resources to furthering mediations in these claim areas with some notable success, such as the Spinifex framework agreement which was underpinned by the Western Australian Government's recognition of traditional ownership. Other similar agreements which sere signed or were imminent were bound by confidentiality, although the Western Australian Government confirmed a media report that it signed a framework agreement with the Balanggarra people in August 1998.^[16] This agreement, like the Spinifex agreement, was mediated with the assistance of the Tribunal.

Spinifex Framework Agreement^[17]

• The non-native title agreement, between Spinifex people represented by the Ngannyatjarra Council, and the Western Australian Government, was signed at Mirramiratjara in the Great Victoria Desert on 1 July 1998 after two years of intensive negotiations.
• The agreement related to a 50,000 km area of desert country abutting the South Australian border south east of Warbuton. Negotiations started following the lodgement of a native title application over the area on 5 October 1995.
• The framework agreement set out the substantive issues for further negotiation including providing the Spinifex people with a permanent and secure form of land tenure, and involving the Spinifex people in environmental management and economic development.
• The area concerned included an Aboriginal reserve, a nature reserve and vacant Crown land and had no current pastoral or mining leases, although there was exploration interest in the area.
• The National Native Title Tribunal had been involved in the process from the outset with a senior Tribunal Member chairing more than 20 meetings, and Tribunal mediation staff providing critical support, which led to the framework agreement.

The Western Australian Government was also been prepared to entertain non-native title agreements in areas where there were a number of claimants, provided the indigenous parties agreed to act collectively. In Broome, the Tribunal assisted in the formation of the Rubibi Working Group which allowed local claimants to negotiate with the Shire of Broome and the State Government. The Tribunal also assisted in intra-indigenous dispute resolution and in training indigenous mediators. It was envisaged that these efforts would lead to a framework agreement encompassing land management issues such as land releases, future act matters, facilitation of developments and joint environmental management.

Rubibi Working Group

• The formation of Rubibi Working Group as a coalition of native title claimants in the Broome area, was an important step in engaging the State of Western Australia in negotiation with the Yawuru, Djugan and Goolarabooloo groups of traditional owners.
• Rubibi facilitated the Shire of Broome- Rubibi Interim Agreement of May 1996 which allowed for mutual recognition and respect for interests and opened the way for structured Aboriginal participation in planning issues. It was expected that a permanent arrangement would soon be in place to ensure that a formal process of reconciliation continued.
• By 1998, the key issues in Broome were the completion of the draft framework agreement between Rubibi and the State of Western Australia, and the process of Rubibi moving from a working group to an incorporated body made up of all those who held native title rights according to traditional law and custom.
• Rubibi was made up of approximately 2000 people, who identified with a Rubibi number of sub groups. Reaching agreement among so many people about a corporate structure which was fair and properly representative was a long, complex and challenging process.

The other issue on which the Western Australian Government took a strong position was in relation to the referral of claims to the Federal Court for resolution. On 6 February 1998 the Premier of Western Australia wrote to the Tribunal requesting that more than 60 native title determination be referred to the Federal Court because, in his view, there was no prospect of a mediated resolution. The Tribunal responded by explaining that it assessed the interests of all parties, including the State, in deciding whether to refer claims, and took account of whether there was any prospect all of movement in mediation. As at 29 September 1998, the Tribunal had referred 39 Western Australian claims to the Federal Court, but there were instances where the State reconsidered its position following positive developments in relation to claims. There were examples of this affecting eight separate claims.

...

Queensland Government

Queensland was second to Western Australia in the total number of native title applications, with 212 active claims before the Tribunal for mediation. The resource implications of managing these applications was addressed by the Tribunal through a policy^[18] to stream applications according to their state of readiness for mediation. The Queensland Government was a willing participant in this process of identifying priority applications to expedite mediation towards a consent determination.

The Queensland Government, like the Western Australian Government, set out a series of issues which were effectively preconditions for entering into mediation on native title applications. These were that:

• State would not mediate where there were irreconcilable intra-indigenous issues.
• State would not mediate claims which included the following interests because it believed these extinguish native title:

  (i) Valid private freehold;
  (ii) Tenures listed on the Schedule of Interests to the Native Title Act Amendment Act 1998 (both current and historical);
  (iii) Public works
  (iv) Roads – dedicated and/or constructed;
  (v) Most, if not all, Government freehold, ie, any sites with buildings or public works State would not mediate exclusive possession claims to natural resources, such as mineral , timber, gravel, water etc.
  

State would also maintain that:

(i) reserves could be used for the purpose for which they were gazetted, eg national parks and state forests;
(ii) arrangements for recognition of co-existing rights of valid interest holders must be workable – valid interests granted by the State would prevail where there was any inconsistency with native title rights;
(iii) the rights of indigenous people with a historical connection must be protected; and
(iv) the needs of Government must be recognised.

Notwithstanding these conditions, considerable progress was made in advancing mediations, particularly in North Queensland, and a number of draft determinations were prepared for negotiation toward a consent determination of native title. In particular, the State adopted a positive approach to negotiating agreements in the Torres Strait and many applications in that region were at an advanced stage.

The Hopevale consent determination, which was ratified by the Federal Court in December 1997, served as a model for many other communities as it demonstrated how a positive outcome could be achieved through constructive negotiation, despite early appearances that the application would founder on internal conflict.

Queensland also achieved the nation's first consent determination of native title over a pastoral property. The agreement between Mr and Mrs Pedersen of Karma Waters Station and the Western (Sunset) Yalanji people, included a legally binding land use and access agreement. It had the full support of the Federal Court in Cairns on 28 September 1998.

In addition to its conditions, the Queensland Government and some native title applicants, assisted y the Tribunal, established a framework for negotiation which was applied successfully in those particular mediations and also adopted as a model throughout the State. These clear steps in negotiation greatly assisted the progress of mediations in Queensland.

Northern Territory Government

Mediation activity in the Northern Territory was strongly influenced by the position of the Northern Territory Government, and its requirement that key legal questions be resolved prior to entering into mediation on many native title applications. The Government's preferred approach was to seek the referral of applications to the Federal Court if the legal issues were unclear. The Government's position, and the strategic importance of a number of test cases mounted by the land councils, meant that some key legal principles would be decided in the Northern Territory, including Croker Island (native title and sea), and Alice Springs (Crown lands, historical tenure and continuous connection in an urban environment).

Victorian Government

The Tribunal's Melbourne Registry serviced Victoria and Tasmania. There were 19 applications in Victoria but none in Tasmania.

The Tribunal met with State representatives on a number of occasions and provided examples of tile mediation strategies developed by other States and suggested that they consider adopting a similar approach.

The State indicated a preparedness to consider claims on their merits and did not rule out the possibility off consent determination of native title.

New South Wales Government

The Tribunal's Sydney Registry developed a co-operative relationship with the New South Wales Government and was particularly active in promoting improvements in mapping and the identification of tenures subject to native title applications.

The New South Wales Government had no comprehensive policy on its approach to mediation, however the State indicted it would not enter into negotiations on applications over particular tenure types, such as Crown freehold and grazing or pastoral leases. The State also indicated that to progress negotiations, it required 'credible evidence' of traditional association to land, but was yet to provide any criteria of what it required. The New South Wales Government's general willingness to enter into mediation was demonstrated by its support for the consent determination of native title with the Dunghutti people of Crescent Head, which was ratified by the Federal Court on 7 April 1997. This was the first determination of native title on mainland Australia. The New South Wales Government also lent its support to the agreement between the Byron Bay Shire Council and the Arakwal people in the first substantial agreement between a local authority and native title applicants in that State. The agreement was signed on 16 October 1998.

Australian Capital Territory Government

The ACT Government consistently maintained its intention to enter into negotiations for a regional agreement in relation to unalienated lands in the Territory.

B. Future Act Regime

Introduction

The future act regime established tinder the Native Title Act 1993 provided a scheme for land management and development where native title may be affected. A 'right-to-negotiate' for native title holders or applicants was triggered where a government advertised its intention, for example, to grant a mining lease.^[19] The registered native title parties negotiated with the grantee party (the mining company seeking the tenement) and the state/territory government in order to seek agreement in relation to the proposed mining project.

A 'fast-tracking' process existed for the grant of exploration, prospecting and miscellaneous licences, in recognition that exploration and similar activities were less likely than mining to have an adverse impact on the environment, on sites of particular significance, or on the community life of native title holders. The vast majority of applications for exploration tenements in Western Australia were granted without attracting an objection, and apart from the statutory two month notification period, have not incurred delays.

More than 97 per cent of future act matters generated in Australia were Western Australian based, and in response to this demand the Tribunal established a specialist Future Act Unit (FAU) in its Perth Registry in 1995. Future act business in other states and territories was carried out by the Tribunal's case management staff, working to national procedures and standards developed by FAU and state and territory governments.

The future act regime was beset by misconceptions. Contrary to popular belief, indigenous people had no right of veto over mining or exploration or other development projects, and the right to negotiate was not an open ended process. While there was regular criticism of the Act for the undue delays in the granting of mineral tenements, exploration licences and land releases, the Tribunal could only intervene in mediation, or make a determination as to whether the grant should go ahead and under what conditions, at the invitation of the parties.

For the grant of a mining lease, which by its very nature was likely to have a significant impact on native title interests, the statutory time frame for negotiation between the parties was a minimum of six months. If the Government party negotiated in good faith for that period, the Tribunal could be asked to decide the matter on the basis that the negotiations were fruitless. The Tribunal had to endeavour to decide the matter within six months. Therefore, if a mediated settlement could not be achieved, the delay in any grant of a mining lease might be limited to 12 months.

There were well publicised instances of lengthy delays in reaching settlement with indigenous parties. However, in many cases the parties either chose not to seek Tribunal assistance in the mediation process, or chose not to take the option of seeking arbitration by the Tribunal after the minimum period of good faith negotiations. The Western Australian Department of Minerals and Energy, which handled the vast majority of future act matters in Western Australia, indicated that 'the rate of lodgement of determination applications (arbitration) with the Tribunal was directly affected by the requirement of the State to demonstrate that it negotiated in good faith with the tenement applicant and the native title claimant.'^[20]

For exploration licences, if the Tribunal determined that the expedited procedure did not apply, the minimum period for good faith negotiations was four months, after which the Tribunal could be asked to decide whether the grant should go ahead. Therefore, if a mediated settlement could not be achieved and the Government party did not seek to apply the fast tracked procedure, the delay might be limited to eight months.

(i) role as mediator

The Tribunal managed future act mediations relating to:

• proposed grants of mining, miscellaneous, prospecting and exploration leases and proposed compulsory acquisition of land for transfer to a third party; and
• the process for fast tracked approval of exploration licences and similar where native title parties lodged an objection.

A number of projects were able to proceed when agreement was reached between parties following Tribunal mediation. For instance, in Western Australia the Carnarvon fascine development agreement resulted in land being made available for urban expansion and included returns to the local Aboriginal community involvement in project planning and development, heritage protection, and an employment and training strategy.

In May 1998 an agreement was reached between AuDAX Resources and the Miriuwung Gajerrong people in respect of a proposed diamond exploration project.

Kimberley diamond exploration: mediated settlement

• The Tribunal acted as a mediator ' the negotiations to clear the way for further exploration and the possible development of a diamond mine near Kununurra.
• The agreements with the Miriuwung and Gajerrong people gave mining company AuDAX Resources NL and its partners access rights to explore and mine on land near the old Ivanhoe station for up to 42 years.
• The agreements covered heritage and site surveys, exploration and mining, environmental issues and rehabilitation of disturbed areas.
• The Miriuwong and Gajerrong people would also participate in work and education opportunities and receive financial compensation for use of their traditional country.

(ii) Number and Promotion of Agreements

The Tribunal developed strong relationships with parties and worked actively to encourage parties to reach agreement. Mediation support was offered where this might assist the process. The Tribunal conducted preliminary conferences focused on identifying issues and facilitating agreement making.

While the early practices of mining companies engaging privately with native title parties to secure access to ground for exploration and mining created some dissonance, there was significant progress in agreement-making between native title and grantee parties. The early practice of multilateral negotiations reflected the incidence of family sub-groups competing for the right to negotiate and numerous overlapping claims. To encourage agreements, the Tribunal worked with individual claimants, claimant groups, and representatives of claimants to reduce overlapping claims, and the number of negotiating parties in relation to particular proposed grants. Significant successes were achieved.

Promotion of a culture of negotiation was more challenging in recent years because of the vigorous political debate about the efficacy of the Act. The Goldfields, where most future act applications occurred and where there was also the greatest number of overlapping claims, was singled out for particular scrutiny during this debate. Further complications arose because of the high level of intra-indigenous conflict and the preponderance of unrepresented claimants in the region.

To assist mediation in that region, the Tribunal established the Goldfields : Mediation Service and supported indigenous, mining, pastoral, local government and other stakeholders in convening the Goldfields Mediation Council (GMC). The GMC acted as a point of contact between the Tribunal and stakeholders, and explored ways of facilitating more efficient negotiations. The GMC meeting was held generally on a quarterly basis with either the President or a Member presiding.

A significant proportion of the mining industry sought to negotiate with native title holders. In the contextual regional agreements had a role to play in clearing future acts for grant while simultaneously involving indigenous people in project development and in local or regional planning.

ATSIC's Chairman Gatjul Djerrkurra noted^[21] that despite the political climate in Western Australia, which he perceived to be hostile to native title claims, the State's miners led the country in the trend towards native title mining agreements.

The wider community has begun to act in ways which became more inclusive of indigenous interests in planning, management, and local and regional economic development. The future act processes of the Act will continue to play an important role in facilitating this positive and enduring change.

The following examples illustrate the diversity of local area and regional development agreements. Much of the substance and character of an agreement was proportional to the scale of a project or the geographic, cultural, economic and other complexities of the area under consideration, as well as to the amount and kind of effort put in to the process by parties. The main point to observe is that 'new' agreements can be modelled on existing agreements which are adapted for use in another regional or local setting. They also represent more cost effective solutions to native title issues than litigation. By way of example, the Century Zinc project in Queensland cost in the order of $52 000 for the Tribunal to mediate. Costings for its possible arbitration by the Tribunal amounted to nearly $200 000, and the cost of litigating a solution through the courts was estimated at millions of dollars.

Century Zinc project, QLD

• The Century Zinc agreement reached in May 1997 between native title parties, the company and the State of Queensland illustrated the role which government could play in attracting investment in resource development to regional Australia.
• The Bill to give effect to Queensland's obligations under the Century agreement was introduced into Parliament in 1998, following years of negotiations between the State and Century Zinc, and a six month period of mediation, and preliminary determination proceedings under the Native Title Act.^[22]

Gold Mine, NSW

The following items were included in an agreement facilitating a New South Wales gold mine to begin production:

• Involvement of Aboriginal people in environmental monitoring and archaeological clearances;
• rights to protect sites of significance;
• a protocol for resolving Aboriginal heritage issues;
• jobs, education and training opportunities for the community;
• community services;
• community improvements such as infrastructure developments; and
• a compensation package.

Striker Resources exploration project, Kimberley WA

The Striker Resources^[23] diamond exploration agreement over some 6500 square kilometres in the Kimberley provided for compensation to the native title claimants at four stages of the development:

• at the exploration stage, a percentage of on-ground costs would be paid;
• at the mine construction stage, 1.5 per cent of capital costs would be handed over to Balanggarra people;
• when the mine is operating, the Balanggarra people would get part of quarterly sales proceeds; and
• annual land rents would be calculated on the area disturbed.

Bauxite mines, QLD

• An agreement was announced by Alcan South Pacific for a new bauxite mine north of Weipa on the west coast of Cape York Peninsula.^[24] The first part of the project was a major dam to service mining operations.
• The mine is expected to have a life of 25 years and will employ local Aboriginal people. The agreement was reached after a year of negotiations, and was reported in September 1997.
• Although few details of the agreement were publicly available, it provided authorisation for the bauxite mining and shipping facility to proceed, for native title issues to be policed by a management committee, and for employment opportunities and financial compensation for Aboriginal people.

Mining Code of Conduct, QLD

• In September 1997, indigenous representatives and the Queensland Mining Council^[25] announced they had agreed to negotiate an historic code of conduct for mineral exploration on indigenous land in Queensland. It was envisaged that the code of conduct would meet the requirements of the Mineral Resources Act (Qld) and provide guidance for exploration companies operating on indigenous land.
• The draft code covered four key issues: management of the socioeconomic impact of exploration on affected communities; cultural heritage and protection; environmental protection and management; and process issues on procedures for negotiation and consultations
• It would be the first such agreement to provide a framework for mining companies to do business in Queensland in a way that protects both the culture and the environment of indigenous communities. At the same time, it would help provide easier access to indigenous land, clearly of significance to the minerals and exploration industry.
• Further discussions regarding the scope of the proposed code were on hold until amendments to the Native Title Act 1993 were fully considered.

Tjupan Ngalia agreement, Goldfields WA

• Tjupan Ngalia native title claimants and three mining companies reached an agreement that will see the future act processes of the Native Title Act bypassed and future grants of tenements to the companies fast-tracked.^[26] With assistance from a negotiator for the Tjupan Ngalia, the agreement was reached in just three hours of negotiations. The claimants agreed to assist the companies in all future grants provided the companies have regard to Aboriginal culture, employment, training and business enterprise opportunities.
• The agreement gave the companies the confidence to expand their exploration activities in the north-west Goldfields and to set standards for dealings with the Tjupan Ngalia people. The companies will no longer have to enter into negotiations over future tenements with Tjupan Ngalia as the ground rules for exploration were set in advance.
• This showed that workable agreements could be reached between claimants and miners within short time frames, and that the process could maintain recognition and respect for each party's interests. The Tribunal encouraged this kind of direct negotiation between native title claimants and mining companies as a means to reducing delay and prompting cooperation outcomes.

Gawler Craton, South Australia

• The Chamber of Mines in South Australia and the South Australian Aboriginal Legal Rights Movement^[27] announced an agreement in respect of mineral exploration in the South west of the state which provided for a major heritage survey over 44 000 square kilometres. The agreement established a blueprint for further agreements between five Aboriginal groups and 14 mining companies.
• The companies agreed to maintain roads in the area, and develop an environmental management plan. Benefits to the community included jobs, training, business opportunities, compensation payments and community infrastructure. All parties emphasised that the agreement culminated several years of close relationship.

Number of future act agreements

There were 1092 future act agreements in Australia as at 29 September 1998, 1051 of which related to Western Australia.

Fig 8 - Future Act agreements by State and Territory, 1994-1998

(iii) Development and application of procedures

The Tribunal developed a high degree of technical expertise in managing a large volume of future act applications in a legislative framework which was complex and subject to a degree of legal uncertainty. It adapted readily to significant changes in its operating environment as a result of determinations by Tribunal Members and Federal Court rulings, and the varying approaches of state and territory governments to future act matters.

A series of decisions of the Federal Court arising from challenges, particularly in relation to the expedited procedure, meant over time that the 'threshold' meaning of s 237 of the Native Title Act 1993 was lowered.

The Federal Court's 'good faith' decision in June 1996,^[28] followed by the Tribunal's determination on 7 August 1996 that 'good faith' required the Government to enter negotiations 'with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid, pre-determined position', prompted the Western Australian Government to focus more attention on its negotiations. For the Tribunal, this meant reorganising its Future Act Unit and establishing procedures for handling an influx of mediation requests from the State Government.

The Tribunal's Future Act Unit developed an Operations Manual which was a comprehensive document describing the correct procedures to be followed in the processing of claimant, objection and determination applications as well as mediation requests. The Operations Manual was updated on a regular basis, and ensured national consistency to future act mediation and arbitration.

In order to improve efficiency, the Tribunal delegated responsibility for conducting pre-hearing conferences to senior case managers. This streamlined the arbitral functions of the unit, saving the time and additional costs of Tribunal Members conduct preliminary conferences or listing hearings.

Other innovations to improve processes included:

• electronic reception of s 29 data from the Western Australian Department of Minerals and Energy;
• electronic mail exchange of daily listings data with Western Australian Department of Minerals and Energy;
• contracting Australian Bureau of Statistics to develop a reporting system to track and report all future act matters; and
• employing a strategic mix of staff - permanent, short-term contract, long-term contract, and temporary – in order to optimise efficient use of resources in relation to changing workload.

(iv) Stakeholder liaison

The Tribunal worked co-operatively with all stakeholders and sought constructive feedback to improve processes. In 1996, a review of the Future Act Unit was undertaken, which included the formal participation of key groups, to refine the unit's Structure and processes.

The Tribunal conducted education and training seminars or parties in partnership with Western Australian Department of Minerals and Energy, in Kalgoorlie, Perth and other regional centres.

In Queensland, training on future act management was conducted in November 1997 for mining industry, Native Title Representative Bodies and State government officials in Brisbane and Townsville. This particular program was jointly run by the National Native Title Tribunal, Queensland mining Council and Western Australian Department of Minerals and Energy and was an example of cross State co-operation fostered by the Tribunal.

In 1998 the Tribunal assisted the Queensland Government to establish a state body to administer future act matters and has maintained close ties with South Australia since 1995 when the state established its own future act regime.

(v) Approach of State and Territory Governments

Western Australia

Western Australia was the only State which systematically engaged in the process of clearance provided by the future act negotiation and arbitration regime. This policy decision was taken following the High Court's finding on 16 March 1995 that the State Government's Land (Titles and Traditional Usage) Act 1993 contravened the Commonwealth Racial Discrimination Act 1975.

To date, the Tribunal processed 13 619 future act notices in Western Australia under s 29.

According to the Department of Minerals and Energy, 2195 letters were sent to mineral tenement applicants since September 1996 seeking their advice as to the priority of the applications. Of these, 626 tenement applications were placed on the priority list for negotiations, and of these, the department was involved in negotiating the grant of only 140 tenements with native title claimants because it had a capacity to be involved in a limited number of negotiations at the one time.^[29] This indicated that there was a lesser degree of urgency attached to the granting of leases in the case of the majority of projects. The State Government was unable to quantify the number of actual mines to which these tenements related (noting that individual mining projects might involve multiple tenements). It was also unable to identify which of these applications for grant of a mining tenement related to continuation of exploration rather than an intention to mine.^[30]

Of the mineral tenement notices 10 986 (81.8 per cent) asserted that the expedited (fast tracked) procedure applied. Of the notices which asserted that the expedited procedure applied and were out of the two month notification period, 8422 (78.2 per cent) were cleared for grant without attracting an objection (this applies to the period May 1995 – September 1998).

A total of 2172 objections to the nomination of the expedited procedure were lodged with the Tribunal since July 1995 involving 2347 mineral tenements. What was noteworthy is that while objection rates to the use of the expedited procedure rose, there was also a significant increase in the number of agreements reached between native title parties, government and explorers.

The State Government's Land Access Unit, based within the Department of Minerals and Energy, managed the right to negotiate in Western Australia. The team was relatively small with few case managers who conducted the good faith negotiations between the parties. Given the labour intensive nature of these negotiations, it was likely that a better resourced Land Access Unit would have been able to effect more agreements which would expedite mining or exploration projects.

The Tribunal drew attention to the idiosyncrasies of the Western Australian Mining Act and its implications for expeditions management of future act matters.

It appeared that in the vast majority of mining lease applications, the applicant intended to continue the exploration program underway. It was possible that many of thee conversions from exploration to mining tenements were being applied for to protect the company's interests if exploration did in fact find a resource worth mining. If this was the case the tenement would have already been granted and the company did not have to go through the right to negotiate again.

The Tribunal's Koara determination (June 1998), which gave approval for the issuing of seven mining revises in the eastern Goldfields, underscored difficulties with the Western Australian Mining Act.

Koara determination – June 1998^[31]

• The National Native Title Tribunal gave the go ahead for seven mining leases to be issued by the State Government in an area which was the subject of a native title application by the Koara people.
• The leases, all of which were north of Leonora in the eastern Goldfields were issued under conditions set by the Tribunal to protect the native title rights and interests of the Koara people.
• It was the second time the Tribunal had approved the granting of the leases. The first decision – on 23 July 1996 – was the subject of an appeal to the Federal Court by the Koara people. The Federal Court upheld the appeal, finding that some of the conditions were invalid. It referred the matter back to the Tribunal on 8 August 1997.
• The central issue was that under the WA Mining Act, and mining leases were granted for 21 years with a renewal option of 21 years, and miners could continue exploring for all of that lease period without developing a mining projects. In fact, most mining leases were not used for productive mining.
• The Tribunal had the challenge of designing conditions which would protect the native title rights and interests of the Koara people in the event that a mining development of unknown dimension, in a precise location as yet undetermined started at any time over the next 42 years.
• The Tribunal approved the granting of the mining leases subject to 16 conditions including that the Koara People's access to the land covered by the mining leases was maintained; that sites of particular cultural significance were protected; that in the event of a mining development being proposed, a social impact study was conducted; that the Koara people were given employment and training opportunities where possible; and that the mining operators undertook training to raise their awareness of the Koara People's culture.
• The Tribunal also recommended in its determination that the Federal and State governments considered legislative amendments on the basis that it would be more efficient and less time, consuming if the relatively straightforward issue of exploration could be dealt with initially, and the more complex issue of mining could be dealt with when information was available about the type and scope of the actual mining operation.

In 1997 there was a policy shift by the Western Australian Government in relation to 'consent determinations'. In short, the State no longer agreed to adjournments to applications in the objection stream, where the parties wished to negotiate, but the State would agree by consent of all parties to a determination by the Tribunal that the expedited procedure did not apply.

A large proportion of objection applications were being resolved at the preliminary conference or listing hearing stage as parties agreed to a consent determination that the expedited procedure did not apply (in a small proportion of cases the agreement was that the expedited procedure applied).

This again changed the way the Future Act Unit operated. Preliminary conferences were conducted more like conciliation meetings to fully explore the possibility of the parties agreeing to a consent determination, or alternatively, to reach agreement in relation to the proposed future act and have the objection withdrawn.

Western Australian statistics at a glance (to end of September 1998)

• 3 619 s 29 future act notices were advertised since May 1995, 13 436 relating to applications for mineral tenements and 183 to proposals for the compulsory acquisition of interests in land.
• Of the mineral tenement notices 10 986 (81.8 per cent) asserted that th expedited (fast tracked) procedure applied. Of the notices which asserted that the expedited procedure applied and were out of the two month notification period, 8422 (78.2 per cent) were cleared for grant without attracting an objection.
• 2173 objections to the nomination of the expedited procedure were lodged with the Tribunal since July 1995 involving 2347 mineral tenements. It was important to note that native title claimants were not actually objecting to the proposed grant, but were rather attempting to gain a right to negotiate in respect of the proposed activity. Agreements reached in this manner were usually of a relatively low key and low cos cultural heritage clearance.

Queensland

In Queensland there was minimal use of the future act regime. It was applied strategically where grantee parties requested that the State Government issued s 29 notices in order to negotiate with native title parties within framework of the Act.

The best example of this approach was the negotiated agreement concluded on the Century Zinc (Pasminco) deal in the North West Minerals Province. The Tribunal provided extensive mediation assistance including the facilitation of a joint negotiating framework agreement.

This case exemplified that where an inquiry into whether a future act might be granted was begun, the 'threat' of this complex process might bring about a strategic decision in favour of an agreement rather than the likely delays and costs associated with an arbitration.

The Tribunal also worked closely with the Queensland Government in 1998 to assist in the establishment of its own future act regime.

South Australia

South Australia remained the only state or territory which took up the option under the Act of managing the arbitral functions in relation to future act matters. Accordingly, all arbitrations in South Australia were conducted by the Environment, Resources and Development Court.

Since the Court began managing future acts in South Australia, applicants for mining titles advertised 30 proposed grants of mining title, with the expedited procedure asserted for only one of those.

Northern Territory

Three s 29 notices were issued by the Northern Territory government, one in relation to a proposed mining tenement and two for compulsory acquisition of native title interests in land.

New South Wales

In New South Wales, 72 s 29 notices were advertised, comprising 61 mining tenements and 11 compulsory acquisitions, with only one notice asserting the expedited procedure. Many agreements were reached in New South Wales stemming from s 29 notification, not only in mining but also for other developments including public infrastructure and town expansion. Examples included Crescent Head, the Eastern Gas Pipeline, Ross Mining at Tenterfield, and Ulan coal near Mudgee. The State government was supportive of negotiations being the best way to resolve issues, and most industry in New South Wales – mining or otherwise – saw an advantage in negotiating agreed outcomes.

Victoria

There were 62 s 29 notices issues since 1995 and 7 agreements lodged pursuant to s 34 (one of which involved three different native title parties). A s 31(2) mediation request was submitted recently in relation to a proposed pipeline extension. There were 30 polygon applications^[32] lodged in Victoria, 12 of which had been lodged since the beginning of August 1998.

The Tribunal had a very limited role to play in negotiations rarely receiving a request to mediate. The State, grantee and native title parties appeared to be negotiating agreements in a positive environment.

Tasmania

There were no registered native title applicants and hence, there was no use of the right to negotiate in Tasmania.

...

SECTION 2: INCREASE COMMUNITY AND STAKEHOLDER KNOWLEDGE OF THE TRIBUNAL AND ITS PROCESSES

The Tribunal was born into an environment in which native title was a widely misunderstood concept and where there had been a vigorous political debate accompanying the passage of the Native Title Act 1993. Indeed, on the very day that the Tribunal came into being it was said that:

The Native Title Bill is, without any qualification, one of the greatest disasters that is before this country and we will be paying a price for this for decades to come.^[33]

The profound lack of community understanding of the nature of common law native title rights and interests and their relationship to other valid rights and interests directly impeded the progress of native title mediation practices. The absence of a concerted effort by Commonwealth and state and territory governments to direct a public information and education program and the need for informed participation in mediation required the Tribunal to commit significant resources to community information and mediation practice training.

The Tribunal developed its public information capabilities to the point where Members, mediation staff and specialist communications officers were all involved in public information activities. This was recognised by the organisation as an essential prerequisite to successful mediation.

As a general rule, the Tribunal worked to forge partnerships with peak bodies to develop and deliver information programs to mediation parties.

A. Stakeholder Liaison

(i) Customer feedback

... he's either a member of the Native Title Tribunal or a clairvoyant but he can't be both and he's running this hillbilly tribunal and he has to be responsible for all the stuff ups and blunders that have occurred ... ^[34]

The Tribunal's approach was one of refining its practices based on experience and stakeholder feedback. Given its role as a mediator, and as the agency administering an Act which has been the subject of a polarised political debate, it was not surprising that the Tribunal and its staff were the subject of occasional criticism from both indigenous and non- indigenous parties. While some of the criticism was unwarranted, all of it was taken seriously in the ongoing evaluation of the Tribunal's practices and procedures and community education strategies.

There were notable examples of criticism front key public figures, including the former National Farmers Federation President, Mr Donald McGauchie, who said:

... the Tribunal should be abolished, it has been appallingly biased against pastoral leaseholders as it was established to support claimants.^[35]

In this instance, the President wrote to Mr McGauchie seeking clarification of his statements and specific details of his grievances. No reply was received.

In cases of this nature, the Tribunal tried to determine the basis of the complaint and, where justified, take remedial action. For instance, in June 1998 the NSW Farmers Association said the Tribunal had 'wrongly informed' them a particular Western Lands Division lease was subject to a native title claim. The Tribunal had relied on data supplied by state government agencies when notifying registered interest holders about native title claims. In this case, the Tribunal was informed by the NSW Land and Information Centre (LIC) – now the Surveyor General's Department of NSW that the lease in question was included in the native title claim and issued a notification letter to the leaseholder in June 1997. Subsequent refinement of maps by the State agency resulted in an adjustment to the claim boundary, placing the leaseholder outside the claim area. The lease was omitted from subsequent data supplied to the Tribunal but the Tribunal was not informed of the change. The Tribunal moved to eliminate such problems in the future by raising the issue with the NSW agency and instituting its own internal measures.

Indigenous people also directed criticism at the Tribunal from time to time. The Social justice Commissioner, Mick Dodson, is on record saying:

many representatives of claimants have complained that the Tribunal organises too many meetings ... perhaps the Tribunal is responding to the demands of non-indigenous parties in setting meeting schedules.^[36]

The Tribunal took up criticisms of this kind in developing more culturally sensitive mediation practices.

While these were random instances of stakeholder feedback, the Tribunal had institutionalised opportunities for constructive criticism in many of its practices. The 1995 review of the Tribunal's mediation practice involved consulting applicants, native title representative bodies, state and federal government agencies, and other non-indigenous organisations involved in native title mediations. Participants in mediation associated with a specific application were also consulted as part of a case study, intended to inform the evaluation on the practical implications of the issues raised by other sources.

Further, the Tribunal routinely sought feedback from participants in information seminars held by its communications officers, case managers and other officers. These seminars involved groups such as local authorities, rural financial counsellors, town planners, rural enterprise organisations and land conservation groups. For instance, in May 1998 the Tribunal worked with the NSW Local Government and Shires Association and the Australian Local Government Association to stage a series of workshops which attracted positive feedback such as ' ...a very useful and educational workshop. I learnt a lot and feel that I can take back with me and implement some ideas at Council.'^[37] All participants were provided with a detailed evaluation sheet rating the various aspects of the presentation so that the content could be refined.

Peak groups can be critical to the success of mediation processes through the support, information and representation they provide to members. The Tribunal regularly met with peak groups around Australia to develop sound working relationships. An example of the critical importance of the stance of peak groups was evident in Western Australia, where the Pastoralists and Graziers Association (PGA) adopted the policy of advising its members not to engage in mediation. This had a significant effect on the progress of many mediations in pastoral areas. The Tribunal persisted in its efforts to consult with and inform the PGA. In 1998 the association altered its stance, deciding it would take part in mediation and sought funding from the Attorney-Generals Department to assist in that aim. Although no statewide negotiating position was adopted, the Tribunal met with the PGA executive and committed to a partnership of information exchange and case specific co-operation within Western Australian regions.

By way of assisting stakeholders to develop mediation skills, the Tribunal held mediation awareness seminars. Seminars were conducted in Brisbane (December 1997) and Cairns (June 1998).

(ii) State Liaison Committees

One of the principal mechanisms for the exchange of information with stakeholders was through State Liaison Committees which were held by the Tribunal in most states and territories. These committees involved the relevant Government representative bodies, other legal representatives and peak bodies. The Tribunal sought comment on its effectiveness in these forums and where appropriate amended practice and procedures in response. In 1996 the Tribunal underfoot a formal process of consultation regarding stakeholder perceptions of its performance and the results were quite openly presented and discussed in the subsequent State Liaison meetings.

These meetings were used to introduce major initiatives such as the Differential Allocation of Resources Policy process for identifying priority mediations.

(iii) Stakeholder culture series

Mr Makim said: 'he could understand people on all sides being untrusting but if any progress was to be made, stakeholders had to enter into negotiations with an open mind. If these, matters are left to the politicians and lawyers, they'll stuff it up every time. The problems which have been created are not going to go away but we can still move forward.'^[38]

The Tribunal's policy and general approach was to assist all people affected by the title process. Each regional team worked with stakeholders to develop strategies which took account of interest group issues. Resources were allocated to the discussion of issues which affected all parties, such as:

• overlapping claims;
• appropriate time and resources to be allocated to mediations;
• consequences of referral to the Federal Court; and
• the desirability of reaching agreements about native title.

In August 1997 the Tribunal initiated a program of seminars that would explore the cultures of non-indigenous stakeholders in the native title process. The expected outcomes were that a deeper understanding of r title issues could be gained by encouraging dialogue that began with the premise that non-indigenous people had important cultural, emotional economic attachments to the land.

A budget of $215 000 was set aside for the project – the largest single project funded by the Tribunal with the New Policy Proposal monies. Key target groups identified were:

• pastoral industry;
• local government;
• fishing industry;
• state service providers;
• small scale prospecting, exploration and mining companies;
• public land users;
• media; and
• legal professionals.

...

B. Community Education

The Tribunal was committed to the education of the general community, potential parties and parties to mediation. As indicated earlier processes was through partnerships with key interest groups to produce publications or deliver seminars.

Education of stakeholder groups, and the broader community through media interviews and statements, was always challenging because of the complexity of the concepts and the dense language of the legislation, eg future acts, native title holder and past acts. In all publications and public presentations, the Tribunal endeavoured to present these concepts in plain English, although simplification ran the risk of changing the legal meanings of some of these expressions.

While considerable effort was invested in providing information which would directly assist parties to participate fully in the mediation process, the Tribunal's attention was frequently diverted to addressing misleading statements which had the potential to erode effort to develop a greater level of community understanding of these complex issues.

...

(i) Research and information

The Tribunal's research and information effort was directed towards the practical purpose of advancing mediations. It had a team of officers who provided legal, mapping, anthropological and historical research support to Tribunal Members undertaking mediations, and in some instances, to native title mediation parties. This research was bolstered by a comprehensive national library network which had a substantial resource of published and recorded material relating to indigenous people, industry publications and a collection of relevant legal texts.

This research, advice and information resource was vital to the development of Tribunal expertise and a major vehicle for the creation of community and industry partnership.

The Tribunal's Geospatial Information Unit was an agent for the establishment of a nationally consistent approach to geospatial information on native title applications. The Tribunal continued to work closely with state and territory governments to have native title application boundaries and areas subject to claim mapped accurately against their geographic databases – cadastral and topographic.

Once accurate mapping was achieved, information on land and mining tenure together with interest holder details associated with areas subject to claim was acquired from the various custodians. Unfortunately there was no consistent approach for the storage, access and pricing of this information and, as a result, the accuracy and speed with which it was acquired varied markedly from state to state.

Turnaround time, for receipt of this information can vary from days to as much as 18 months depending on the state or territory. Western Australia, through the Western Australian Land Information System office, had the most coordinated approach to geospatial information delivery. This was complemented by the integrated approach adopted by agencies within Western Australia to its land information infrastructure. This greatly assisted the turnaround time for notifying interest holders.

As part of the services sought from the states and territories, the Tribunal also developed specifications, for the production of regional and local maps for use in notification and mediation processes. The maps assisted clients to establish the location of their particular interests in relation to claimed areas.

The Tribunal used its national role, and membership of the Commonwealth Spatial Data Committee, to encourage development of the Australian Spatial Data Infrastructure which promoted ready access to government held data. The coordinated Western Australian approach was promoted as the national benchmark.

...

SECTION 3: ADDRESS THE CULTURAL AND CUSTOMARY CONCERNS OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE

Indigenous Australians seeking recognition of their native title rights and interests were very important stakeholders and users of the Tribunal's services.

The Tribunal's responsibility to carry out its business in a way that was sensitive to the cultural and customary concerns of indigenous people arose directly from s 109 of the Act. Equally, it arose from the legal, social and economic imperatives for a fundamentally different relationship between the broader community and indigenous peoples. Those imperatives were generated by the Mabo decision, the process of reconciliations and the public and political reappraisal of contemporary and historic relationships between indigenous and other Australians.

These challenging legal and social realities compelled the Tribunal to continually review its policies and practices across all its activities and to foster an organisational culture that respected cultural diversity and maintained a commitment to learning.

The statutory responsibility for cultural sensitivity was regarded by the organisation as being one more area where the Tribunal was required to provide leadership to the broader community-

To fulfil its responsibilities as an impartial mediator the, Tribunal found it necessary to communicate to all of those involved in mediations the importance of understanding and respecting the legal rights derived from recognition of native title and the implicit changes to community and personal relationships that result. This message was not easily communicated or always well received.

The Tribunal understood its statutory responsibilities as falling primarily within three areas and reported against these in its more recent Annual Reports. They were:

• as an employer;
• as an impartial mediator; and
• through research and the provision of community information.

(i) An employer that addresses the cultural and customary concerns of indigenous people

Staff recruitment was the entry point for creating a working environment that encouraged and supported participation by indigenous people in the work of the Tribunal.

The Tribunal used the public sector mechanism of 'identified positions' to encourage applications from and appointment of indigenous people. About half of all positions were 'identified'.

Advertising Tribunal staff vacancies was done through mainstream media as well as specialist indigenous media and local indigenous organisations. Where possible selection panels comprised indigenous representatives and interviews for all positions included questions framed to test an applicant's knowledge and experience in working within multiparty negotiations and particularly with indigenous people or issues. The Tribunal encouraged further professional development of indigenous staff through targeted provisions in the Tribunal's study leave policy and recently completed a presentation skills program developed by and for indigenous staff to facilitate future cross cultural awareness programs.

...

The Tribunal took a proactive approach to its objective of improving indigenous representation across all staff levels and within all business activities of the Tribunal. This was very effective in the first two years of the Tribunal's operation where the proportion of indigenous staff was second only to ATSIC within the Australian Public Service. To give further impetus to the Tribunal's objective, a specialist indigenous project officer was appointed to review the Tribunal's appointment and professional strategies. In a complementary strategy, the Tribunal's recently completed negotiations on a Certified Agreement included representation from indigenous staff. The agreement specific provisions dealing with indigenous professional development and Tribunal work culture and values.

All new staff underwent an induction program including sessions emphasising the Tribunal's statutory and Organisation responsibilities for cultural sensitivity. Emphasis was made on the need to maintain impartiality consistent with Australian Public Service diversity principles. One hundred and eighty six staff attended cross cultural awareness training workshops. The Tribunal supported the Aboriginal and Torres Strait Islander staff network which provided a forum for consultation on a wide range of workplace issues including the development of policy, practises and procedures. This group met on a regular basis. The Tribunal actively supported and encourages participation in NAIDOC week activities as an opportunity for all staff to further develop knowledge of cross-cultural issues and gain a better understanding of the Tribunal and its services.

(ii) Addressing cultural and customary concerns in mediation

The provision of mediation services was the Tribunal's primary function. The success, effectiveness, relevance and longevity of agreements and other mechanisms promoted as the means for resolving native title issues, relied heavily on the Tribunal's capacity to communicate with all parties and interests. Within the complex, multiparty mediations that constituted the Tribunal's work, a highly sensitive understanding of the culture, values, aspirations and concerns of parties was essential to delivering practical results.

The Tribunal reported previously on its efforts to address the cultural and customary concerns of indigenous people and the importance of this as a mediation practise. It is not overstating its fundamental importance as to the Tribunal's position of trust with all parties to acknowledge that, without regard to these matters, resolving native title in Australia will quite likely descend into an expensive, divisive and ultimately unsatisfactory litigious brawl. This, however cannot be – nor has it been – the Tribunal's only motive for pursuing this as a mediation practice. The Aboriginal and Torres Strait Islander Social Justice Commissioner's 1995 report identified one of the fundamental difficulties in native title mediation as that of recognising imbalances in the power relationships between indigenous other Australians and Stressed the importance of the Tribunal's 'awareness of the power imbalance in mediation ... and its own processes' if it was to establish the necessary trust and confidence to act as a mediator of sustainable agreements. In the view of the Commissioner and others, resolution of native title through mediation cannot be separated from the broader social and historical realities of the Australian community.

The Tribunal's task in mediation was therefore to ensure fairness, promote a balance in the power relationships of those involved and to act as a bridge between the different cultures interests, rights and histories being represented. That it achieved so much in the way of negotiated agreements was evidence of its capacity to learn from the indigenous people who participated in mediation and certainly the capacity of indigenous people to exercise extraordinary patience in the pursuit of their legal rights.

In practical terms, the cultural and customary concerns of applicants were addressed in some relatively simple ways which had a major bearing on the progress of mediations and meetings. Because venues were full of social meaning, decisions about the place at which meetings were held proved crucial. Meetings were held in places that the parties nominated and almost always were held in the traditional country of the applicants. This, of course, still allowed for meetings in towns and the very human experience of encountering the 'other' party. The Tribunal's work in communities revealed that the sharing of a working space can be reconciliatory in itself and an important precursor to successful mediation.

(iii) Cultural and customary concerns in research and community information

The Tribunal, through policy developed from the experience of the past four years, reduced its involvement in undertaking primary and leading research. This was partly due to the recognition of the problematic nature of the Tribunal as impartial mediator conducting research into the social histories of people it was working with on the mediation of native title claims. At the same time, the Tribunal increased the resourcing of research partnerships community information programs and shared development with industry and community groups of practical models for dealing with native title.

The Tribunal established an Anthropological Research Unit in August 1994 – initially to provide advice on the general plausibility of applications as part of the acceptance testing procedures and also to provide valuable background information about the historical experience of the applicants to Members and case managers conducting mediations.

Following the NT v Lane decision, it became clear that the Tribunal should not routinely search behind each application to comment on its merits. In October 1995, the President directed that such advice would only be prepared where there were controversial elements of the acceptance or obvious tensions concerning the application.

Following an internal review, the Anthropological Research Unit was reformed as the Social and Landuse Research Unit to reflect its role in providing regional profiles designed to assist mediations. The background profiles provided a discussion o the traditional social organisation of groups in the region.

Where possible, and if relevant to the mediation, background reports also discussed non-indigenous matters. The bibliographies for these background profiles were available via the Tribunal's website.

In the past two years the emphasis in these reports shifted increasingly toward background information on land use and management. This shift in emphasis reflected the growing importance of multi-party land and resource use agreement to indigenous people and their increasingly acceptance by the wider community.

The Tribunal also facilitated the delivery of information and training seminars and publications of significant papers designed to deepen the knowledge and appreciation of indigenous cultures, Australian and other native title regimes, and the relevant social, historical and cultural interests of non-indigenous stakeholders.

The Tribunal increased its profiles in providing comments to other Government or industry initiatives where these intersected with native title matters. For example, the Tribunal and its staff made comment on the Commonwealth's indigenous heritage legislation review, and on reports concerning rangeland management, Australian biodiversity studies, a review of the Australian Institute for Aboriginal and Torres Strait Islander Studies, and a range of other issues.

---

^[1] The extracted version of the Report printed here reproduces the whole of 'President's Message', 'Mediation of Native Title Applications', 'Future Acts Regime', and extracts from 'Stakeholder Liaison', 'Community Education' and 'Addressing Cultural and Customary Concerns'.

^[2] Media Release, Special Minister of State, 11 August 1998.

^[3] Australian Law Reform Commission 1998, Review of the adversarial system of litigation.

^[4] Parliamentary question No 1772, Legislative Council of WA, 30 June 1998.

^[5] Smith DE in Discussion Paper 163/98, Centre for Aboriginal Economic Policy Research, Australian National University.

^[6] Ibid

^[7] The Border Mail, 6 May 1998, p7.

^[8] Discussion paper on proposed changes to the Native Title Act 1993, Justice RS French, 14 March 1995.

^[9] A/Assistant Director General of the Ministry of Premier and Cabinet, letter to NNTT, 5 June 1998.

^[10] 13 July 1998, see NNTT Media Statement PR98-33.

^[11] Lisson K, 1996 Mediation Review and Implementation of Recommendations, Perth NNTT 1996

^[12] The West Australian quoting Spinifex elder Richard Brooks on the signing of a framework agreement with the WA Government. 3 July 1998.

^[13] 6 July 1998

^[14] SA Solicitor General, Mr B Selway QC, correspondence with Tribunal, 21 July 1998.

^[15] Parliamentary question No 1771, Legislative Council of Western Australia, 30 June 1998.

^[16] Sunday Times, 6 September 1998 p4

^[17] See NNTT Media Statement PR98-25, 1 July 1998.

^[18] The Differential Allocation of Resources Policy

^[19] A right to negotiate also existed under the Native Title Act 1993 where a government proposed to compulsorily acquire native title rights and interests in land for the purpose of conferring rights and interests in land on a non-government party (for example, where land is acquired for urban subdivision with the purpose of transferring land to the developer).

^[20] DME Web site, October 1998.

^[21] West Australian, 9 July 1998

^[22] While the parties initially failed to reach a mediated agreement, agreement was reached shortly after an application by the company to the Tribunal for a determination of whether or not the tenements should be granted (and if so on what conditions), and the relevant inquiry begun.

^[23] West Australian, 21 August 1997.

^[24] North Queensland Register, 2 October 1997, p 6.

^[25] News Release, ATSIC/Queensland Mining Council, 25 September 1997.

^[26] NNTT Media Release PR 96/11, 4 March 1997.

^[27] The Australian, 19 August 1997.

^[28] Walley v Western Australia and Others [1996] FCA 490; (1996) 137 ALR 561.

^[29] DME Web site, October 1998.

^[30] Parliamentary question No 1769, Legislative Council of WA, 1 July 1998.

^[31] See NNTH Media Statement PR 98-23, 24 June 1998.

^[32] Polygon' applications are claimant applications lodged strategically in order to gain the right to negotiate over a proposed grant or compulsory acquisition. The claim area is restricted to the area of the proposed future act, for example, the area of the proposed exploration tenement. Typically, these claims do not proceed to mediation but are also absorbed into larger, community based claims, or are withdrawn.

^[33] Dr Johnson Hewson, Leader of the Opposition, 1 January 1994.

^[34] Senator O'Chee, referring to Tribunal President Justice Robert French, ABC radio, 24 September 1996.

^[35] The Countryman, 18 September 1997.

^[36] Dodson M, 'Power and Cultural Difference in native Title Mediation', Aboriginal Law Bulletin, Vol 3, No 84, September 1996.

^[37] Extract of feedback from Tweed Heads local government seminar, 29 May 1998.

^[38] Julia Creek district cattleman Richard Makim, giving his reaction to the Talking Common Ground Conference, Charters Towers. Reported in the North Queensland Register, 6 August 1998.