Shared Country, Shared Future Evidence and Future Act Inquiries Victoria Future Act Workshop

Procedural Flexibility Section 109, Native Title Act 1993 (Cth) ( 1)The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. (2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved. (3)The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence. Shared Country, Shared Future

Kostas v HIA (2010) 241 CLR 391, [17] Shared Country, Shared Future The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation … that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth“.

Right to Negotiate Applications Section 75, Native Title Act 1993 (Cth) expedited procedure objection application – made by native title party future act determination application – made by a negotiation party Shared Country, Shared Future

Right to Negotiate Application Inquiries Section 139(b), Native Title Act 1993 (Cth ) The Tribunal must hold an inquiry into a right to negotiate application. Inquiry into an expedited procedure objection application Inquiry into a future act determination application Shared Country, Shared Future

Opportunity to Make Submissions Section 142, Native Title Act 1993 (Cth) The Tribunal must ensure that every party given a reasonable opportunity to present his or her case. There must be an opportunity to: inspect any documents to which the Tribunal proposes to have regard to make submissions in relation to those documents Shared Country, Shared Future

Hearings Section 151, Native Title Act 1993 (Cth) The Tribunal: may hold hearings for the purposes of an inquiry or make a determination in relation to a right to negotiate application, by considering, without holding a hearing, the documents of other material lodged with the Tribunal (determination made ‘on the papers’). The Tribunal must hold a hearing if it appears that the issues for determination cannot be adequately determined in the absence of the parties. Shared Country, Shared Future

Public Hearings Section 154, Native Title Act 1993 (Cth ) Hearings held for the purposes of an inquiry into a right to negotiate application must be held in public, unless the Tribunal otherwise directs. The Tribunal may direct that a hearing, or part of a hearing, be held in private if it is satisfied that it is appropriate to do so. In determining whether a hearing be held in private, the Tribunal must have due regard to cultural and customary concerns. Shared Country, Shared Future

Restrictions on disclosure of evidence Section 155, Native Title Act 1993 (Cth) The Tribunal may direct that: (a) any evidence given before it; or (b) the contents of any document produced to it; must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the Tribunal specifies. Shared Country, Shared Future

Determination of the Tribunal Section 162, Native Title Act 1993 (Cth) After holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry. The Tribunal must state in the determination any findings of fact upon which it is based. Shared Country, Shared Future

Commonsense Approach No onus of proof Parties have an ‘evidentiary choice’; they may choose not to lead evidence to support their contentions The Tribunal may, subject to observing the requirements of procedural fairness, make its own inquiries and satisfy itself on a particular issue Other evidence may satisfy the Tribunal If facts are peculiarly within the knowledge of a party, the failure to produce evidence may lead to an unfavourable inference being drawn Shared Country, Shared Future

Contentions, Evidence and Submissions Court Contentions - set out your case Evidence – proving your case Submissions – linking contentions to evidence Tribuna l Contentions - set out your case but are also submissions referring to Evidence – proving your case Shared Country, Shared Future

Section 29 Notice Shared Country, Shared Future

Expedited Procedure Statement Shared Country, Shared Future

Section 237 Criteria A future act is ‘an act attracting the expedited procedure’ if it is not likely to: a)interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land and waters concerned b)interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title in relation to the land and waters concerned c)involve major disturbance to any land or waters concerned or create any rights whose exercise is likely to involve major disturbance to any land or waters concerned. Shared Country, Shared Future

Overview of the Expedited Procedure Objection Process Shared Country, Shared Future Objection lodged Parties intend to negotiate Parties do not intend to negotiate – subject to inquiry No agreement – subject to inquiry Agreement – objection withdrawn Tribunal issues directions Parties file contentions & evidence Oral hearing Heard ‘on the papers’ Determination Preliminary conference

Future Act Determination Applications Application for a determination – section 35 No determination if no negotiation in ‘good faith’ Determinations of the Tribunal: -act must not be done -act may be done -act may be done subject to conditions to be complied with by any of the parties Shared Country, Shared Future

Other Options Parties can continue to negotiate: if agreement is reached, the application is taken to be withdrawn: s 35(3) NTA where parties agree on any issues, the Tribunal must take that into account if parties consent: s 39(4) NTA President may direct conferences to assist parties to resolve any matters relevant to the inquiry: s 150 NTA. Shared Country, Shared Future

Overview of Inquiry into Future Act Determination Application Shared Country, Shared Future Application lodged Good faith raised Party did not negotiate in good faith Preliminary conference Good faith not raised Party negotiated in good faith Parties resume negotiations Inquiry Determination

Section 39(1) criteria (a) the effect of the act on: (i) the enjoyment by the native title parties of their registered native title rights and interests; and (ii) the way of life, culture and traditions of any of those parties; and (iii) the development of the social, cultural and economic structures of any of those parties; and (iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and (v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions. Shared Country, Shared Future

Existing Non-Native Title Interests and Other Use Section 39(2), Native Title Act 1993 (Cth) In determining the effect of the act....the [Tribunal] must take into account the nature and extent of: (a)existing non-native title rights and interests in relation to the land or waters concerned; and (a)existing use of the land or waters concerned by persons other than the native title parties. Shared Country, Shared Future

Mandatory Considerations The Tribunal must form a view as to: the activities which will be undertaken by a grantee party if the grant is made; and the impact of those activities on the matters referred to in section 39(1)(a) Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432, [59] Shared Country, Shared Future

Section 39(1) Criteria (cont ) (b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act; (c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area; (d) any public interest in the doing of the act; (e) any other matter that the arbitral body considers relevant Shared Country, Shared Future.

Public Interest To take an extreme example, it is unlikely that it would be in the public interest for an open cut coal mine to be approved for Kings Park in Perth.... Specifically in the native title context, there may be public interest considerations against mining over areas of special significance to Aboriginal people. Western Desert Lands Aboriginal Corporation (Jamukurnu- Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49, [182] Shared Country, Shared Future

Section 39 Criteria Generally The Tribunal has the task of weighing the various criteria by giving proper consideration to them on the basis of the evidence before the Tribunal. The criteria are diverse, with no common thread, and there may be conflicting interests. The Tribunal is not limited to only the specified criteria; it may take into account any other matter it considers relevant. The Native Title Act does not direct that greater weight be given to some criteria over others; the weight to be given to them will depend on the evidence. Western Australia v Thomas (1996) 133 FLR 124 at Shared Country, Shared Future

Kinds of Determinations Section 38(1), Native Title Act 1993 (Cth) (a)A determination that the act must not be done (b) A determination that the act may be done (c)A determination that the act may be done subject to conditions to be complied with by any of the parties Shared Country, Shared Future

Conditions The purpose of imposing conditions is to address the effect the grant will have on native title rights and interests. Conditions should only be imposed if they are justified on the evidence. Shared Country, Shared Future

Broad power to impose conditions, but subject to limitations No power to: – impose a condition requiring further negotiation or inquiry UNLESS the matter is not reasonably capable of being determined when the determination is made, is not directly relevant to the doing of the act, and the parties agree: s 38(1A) – impose a condition allowing royalty-type payments: s 38(2) – order compensation (but can impose a condition requiring an amount to be secured by bank guarantee in favour of Native Title Registrar): ss 38(5), 41(3)-(5), – impose a condition requiring the Government party to do things in relation to the public generally. Shared Country, Shared Future Limitations on Conditions

Koara conditions Minister for Mines (WA) v Evans (1998) 163 FLR 274 Ensuring: – access to areas for the native title parties – compliance with the relevant Indigenous heritage legislation and requiring a site survey to be conducted – that certain information about the future act or activities conducted under the future act be communicated to the native title party – that the grantee party commission the conduct of a socio- economic impact assessment report prior to commencement of mining – that the grantee party establish training and recruitment policies for, and communicate opportunities for employment or training or contracts to, the native title party – that the grantee party provide its employees and contractors with cross-cultural training

Other conditions Excising (or confirming excision of) portion of tenement: FMG Pilbara Pty Ltd v Yindjibarndi #1 [2014] NNTTA 79 at [195]- [197] Heritage conditions: Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) and Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9 at [116]-[126] Other financial (non-compensation) benefits? – see Jax Coal Pty Ltd/Birri People/Queensland [2011] NNTTA 46 Shared Country, Shared Future