Beyond Mabo

Understanding native title litigation through the decisions of the Federal Court

Presented to the LexisNexis National Native Title Law Summit

Justice J.A. Dowsett
15 July 2009
Brisbane

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Introduction

I should start my presentation by saying that I have interpreted my topic very liberally.  It is said to be “Beyond Mabo:  Understanding Native Title Litigation through the Decisions of the Federal Court”.  However I think that a more appropriate title is “Native Title after Mabo – the Frustration of a Federal Court Judge”.  I will address the role of the Federal Court in Native Title determinations.  As to the other matters mentioned in the programme, I do not propose to say much about the “inter-jurisdictional nature of Native Title”.  It is not a subject which has received much attention.  I understand that those who organized the conference intended that I address the effects of Native Title determinations on interstate corporate decision-makers and the relevance of such determinations to state courts and tribunals.  There is little to be said in either area.  Native Title involves rights which regulate the relationship between recognizable social groups and land.  As recognition is pursuant to Commonwealth legislation, state courts and tribunals must recognize those rights in the same way as they recognize any other legal rights, as must also government at all levels, corporations and natural persons.  I hope to allow about ten minutes at the end of my paper for questions.  Perhaps we can address specific questions concerning that matter, if there are any, during that period.

As to the four cases mentioned in the programme, they are factually a little too complex to discuss in the time available.  However they are of value as examples of a number of points which I wish to make.  In particular, they demonstrate:

• the persistence of Native Title claimants;
• the difficulties which they experience in trying to meet the tests prescribed in Yorta Yorta ^[1];
• the delays typical of Native Title litigation;
• the effort made by the Court to minimize delay; and
• the fact that the Court will intervene to strike out a claim where it has no prospects of success or where there has been excessive delay.

Role of the Federal Court

In Mabo (No 2) ^[2] Mason CJ and McHugh J said, at the beginning of their joint reasons:

“(T)he common law of this country recognizes a form of native title which, in the cases in which it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands …”.

The statement was accepted by all other members of the Court as accurately identifying the outcome of the case and as the basis for the finding that the Meriam people were “entitled as against the whole world to possession, occupation, use and enjoyment” of their identified lands, subject to the Crown’s right to extinguish private rights, as regulated by constitutional and legislative limitations.  That proposition set the course for the development of Native Title in this country.  It was to depend upon pre-existing rights as recognized by the common law.  This led inevitably to the result that disputes concerning the existence and extent of Native Title would be the business of the courts.  By virtue of Commonwealth legislation, those matters are now within the jurisdiction of the Federal Court.  It is the primary Native Title court. 

My topic involves an examination of the role of the Federal Court in determining and settling Native Title Claims.   Quite simply, that is the Court’s role – to determine Native Title claims, whether that be after a long trial or by accepting and acting upon agreement reached between the parties.  It is for the Court to supervise every aspect of each case so as to bring it to trial at the earliest practicable time and to resolve it according to law.  That role, in no sense, excludes the possibility, or probability, of the parties reaching agreement.  However the Court cannot properly leave the matter to the parties, or to anybody else, to resolve in their own time.  The public, as well as the parties, have a clear interest in the speedy resolution of all litigation, including Native Title litigation.

The system for Native Title recognition has been subject to frequent radical amendment.  It would be fair to say that none of the three or four quite different systems which have been prescribed by the legislation has been given much of a chance to prove itself.  It is unfortunate that this should be the case.  In my view this history of uncertainty as to process has been largely the result of a refusal to accept the proposition which I have just advanced – that the recognition of Native Title as identified in Mabo (No 2) necessarily involves the possibility, if not probability, of judicial proceedings.  Under the Constitution, it is simply not possible to exclude the judiciary from disputes involving the vindication of pre-existing rights.  Those matters are now primarily within the jurisdiction of the Federal Court.

Chapter III Courts

The Federal Court is, of course, established pursuant to Chapter III of the Constitution.  When a dispute falls for determination in a Chapter III court, there are consequences.  The Constitution assumes that it is possible to identify what is, and what is not, a court.  The state parliaments may generally prescribe the composition, jurisdiction and procedure of state courts, subject to the decision of the High Court in Kable ^[3].  The Commonwealth Parliament has similar powers in connection with Chapter III courts, but exercise of those powers is limited by the meaning of the term “court” as used in the Constitution.  Parliament may regulate judicial procedure, but it must do so in ways which do not detract from the capacity of the relevant tribunal to be recognized as a court.

Proceedings in public

Halsbury ^[4] identifies one fundamental characteristic of a court as follows:

In the absence of specific statutory authority to the contrary, proceedings of a court must occur in public unless the administration of justice would be rendered impracticable by the presence of the public. It is not a sufficient reason to exclude the public because that exclusion will save a party or witness from a collateral disadvantage such as the result of publicity, or that evidence will appeal to those of prurient tastes.

In some jurisdictions, legislation permits the court to exclude persons if their presence would be contrary to, or prejudicial to, the interests of justice.  Such provisions should be construed upon the basis that prima facie a court is to be open to the public and that proceedings will be heard in camera only in exceptional circumstances.

It is a question of fact whether a particular hearing has occurred in open court.

Impartiality and procedural fairness

Other, more or less indispensable, characteristics of a court are that the decision be made by a disinterested party and that the parties be accorded procedural fairness.  They must know the case to be met and the evidence to be acted upon.  They must have an opportunity to challenge that evidence and to make submissions.  They also have the right to know the reasons for any decision. 

I have undertaken this brief summary of the characteristics of a court because I believe that the key to understanding Native Title litigation is acceptance of the fact that it takes place in a court and therefore must proceed in a way which is appropriate to such proceedings.  That proposition may be obvious, but it is frequently challenged, at least implicitly, in Native Title litigation.  Such challenges contribute significantly to the delay which has become endemic in this area.

Challenges to traditional judicial procedure

As I have said, challenges are often implicit rather than explicit.  The requirement that courts operate in public is not satisfied when courts receive evidence in documentary form without any attempt to communicate the content to the public.  The requirement is that, in general, the public have access to the whole of the proceedings, including the evidence.  How else can they understand the process or decide whether they should have faith in it?  There have traditionally been very limited exceptions to this rule, usually where disclosure would pose a threat to national security or prejudice the administration of justice.  Sensitivity to public disclosure of family history relevant to the litigation in question has not generally been a ground for suppression of evidence. 

At a very early stage in the history of Native Title litigation, it was perceived that claimants might be sensitive to the public disclosure of certain, apparently relevant, evidence.  The Secret Women’s Business ^[5] controversy gave much publicity to that notion.  The rights and wrongs of those early assertions as to the need for secrecy are not important for present purposes.  What is important is that there is a tacit perception in the Native Title industry that anthropological evidence should not be disclosed, save to the extent that it is absolutely necessary in order to obtain a determination favourable to the claimants.  This has led to a number of case management problems, the most serious being that nobody really knows what the case is about until an anthropological report acceptable to the claim group has been prepared.  It will then be supplied to the state government for consideration but, frequently, not to other respondents, or at least not willingly.  My own impression is that claimants are not generally responsible for this attitude.  Many have demonstrated a frank enthusiasm for discussing their often complex lines of descent, and for identifying strengths and weaknesses in their claims.  I suspect that lawyers, and perhaps anthropologists, have an overly cautious approach to non-disclosure because they fear giving offence.  The lawyers probably also have a hearty appreciation of the advantage of not disclosing weaknesses in a case until such disclosure cannot be avoided.

Absence of any clear and public statement of the claimants’ case makes case management very difficult.  Unless one knows why a claim group has been constructed in a particular way, one cannot deal with excluded persons who claim that they should have been included.  Unless one knows why a claim group claims a particular area, one cannot deal with overlapping claims.  In some parts of Queensland, these two problems, claim group composition and overlap, have delayed for years the resolution of Native Title claims.

In my view courts cannot work that way.  It is not only case management which is hampered by this failure to disclose the case.  Native Title determinations will have no public legitimacy unless their evidentiary bases are known to the other parties and to the public.  Litigation frequently results in the parties having to expose their private affairs to the public gaze.  There can be no justification for taking a different view in Native Title litigation, save in the occasional, truly sensitive case.  In recent times, the Court has often insisted on disclosure of anthropological reports as a condition of allowing apparently defective claims to proceed.  The effects of such disclosure on case management are not yet clear.  It is clear, however, that respondents appreciate the opportunity to know more about the case which has caused them sufficient concern to justify their being represented at case management hearings.  There has been no suggestion of serious discontent amongst claim groups.

As I have observed, the rules of procedural fairness prescribe that a party be informed of the case which he or she must meet and the evidence upon which any adverse determination might be made.  He or she should have an opportunity to cross-examine and to call evidence, to address the court and to know the reasons for the ultimate decision.  The proposition that a Native Title determination is good against the whole world makes these requirements rather tricky.  In other litigation, the applicant or plaintiff must identify the parties against whom relief is sought.  Any decision binds only those who have been joined.  In Native Title cases we rely heavily on advertisement, designed to encourage interested parties to elect to be joined as respondents.  This is supplemented by the automatic joinder of the relevant state, perhaps in the expectation that it will address the wider public interest, and selected  notification.

Given the care with which the average citizen is likely to read the public notices, it is something of a miracle that so many people elect to participate in the proceedings.  However legal representatives of the applicant and the state frequently express frustration at the joinder of such people as parties.  There is a perception that non-state respondents pose unnecessary complications in that they must be given notice of interlocutory applications, they may want to see material which the applicant or the state does not want them to see, and they may want to negotiate about the ultimate outcome.  Again, I hasten to say that Native Title claimants do not generally demonstrate this resentment.  They understand that opposition is to be expected.  It is generally the lawyers who consider such respondents to be unnecessary baggage on the journey towards a cosy settlement.  However there is often resentment from claim groups when other indigenous people seek to become respondents in order to oppose a claim.

The reality is that many respondents are unnecessarily involved in Native Title claims, but it is not their fault.  Claims are often drawn in the broadest possible terms.  Frequently, they make claims which many people know are incorrect.  Graziers, for example, often know the history of their regions from the time of first European settlement, and who the indigenous occupants then were.  They have their own records.  When they hear of a claim which is inconsistent with their knowledge, they naturally question it.  Because the system is geared to produce a consensual outcome, the claim is not, until very late in the process, defined.  Until it is so defined, respondents cannot easily determine whether or not their interests will be affected by any determination.  And so they wait around for years, occasionally becoming frustrated and obstructive, largely because the applicant’s lawyers and the state are treating the proceedings as their private property and the respondents as annoyances.  Of course, when the Court insists upon proper treatment of respondents, the applicant and the state usually respond positively. 

In my view, such involvement should be seen as an opportunity to convince respondents that Native Title is not a threat to business, family security or life style.  A process in which there is wider, rather than narrower, community involvement is more, rather than less, likely to attract general community support and acceptance, and to produce speedy and effective outcomes.  But respondents cannot be expected to define their concerns before they know the applicant’s case.  It many cases, once a respondent’s interest is recognized, it can be readily accommodated, often without the need for his or her continuing involvement in the proceedings. 

Finally, there is the question of delay.  As I have said, both the parties and the public have a legitimate interest in the speedy resolution of all litigation. When I first started in practice in the early 1970s, there was a perception that litigation belonged to the parties and that the Court should allow them to set a suitable pace.  Only occasionally would the Court intervene to push a matter to trial in the absence of any request from the parties.  However, in the mid 1980s, at about the time I was appointed to the Supreme Court, there was a change in public and professional attitudes.  People realized that many cases were lying dormant for years and that, when they were awakened from their slumbers, the delays were seen to have caused injustice to one side or the other.  The judges were blamed for having allowed this situation to arise.  At that time the judges, more or less nationally, decided to take control of litigation in order to ensure that, for the future, such criticism could not be made of them.  That continues to be the policy, in Native Title cases, as in all others.  In general, litigation, once started, must proceed to a determination at the earliest practicable time.

There have been difficulties in applying this policy to Native Title cases.  When I came to the Federal Court, there was a view that the parties had no interest in speedy resolution of their cases.  However my own experience has been that both claimants and respondents are as anxious to resolve their cases as are any other litigants.  Our case management system is designed to bring that about, but many aspects of the Native Title system stand in the way.

Queensland is different

Much of what I am about to say concerns the management of Native Title claims in Queensland.  It may, in varying degrees, apply to case management in other parts of the country, but I have only a very general knowledge of what goes on outside of this state.

As is so often the case, this discussion commences with the observation that Queensland is different.  It is different in Native Title terms for a number of reasons.  They include:

• Queensland’s large area;
• The large number of indigenous people in Queensland;
• The large number of claims;
• The presence of Torres Strait peoples as well as  mainland indigenous groups;
• Queensland’s many widely dispersed and well established European population centres;
• Queensland’s long  history of European occupation for grazing purposes in quite remote area; and
• Queensland’s widely dispersed mineral wealth.

I do not say that any of these factors is necessarily unique to Queensland, but the combination of them and the extent to which each is present in Queensland pose special problems in managing and resolving Native Title claims. 

There are few areas in Queensland which are more than a two or three hour drive from a largish town, usually established quite shortly after first European contact in the area.  This has led to greater displacement of aboriginal people than in other states, but without centralized re-location.  Thus there are still substantial aboriginal communities throughout the state, but many are not necessarily on their original country.  Identification of claim groups and country is that much more difficult.  Disputes amongst aboriginal peoples concerning descent and country are common, leading to overlapping claim groups and overlapping claims.  Wide-spread mineralization has focussed attention on certain areas.  The areas around Mt Isa, the Central Queensland coalfields and the gas deposits in the south west are examples of this.  These are areas in which Future Act notices are common. They relate to projects which are important for the region, the state and the nation.  Ideally, developers should be able to negotiate with Native Title holders whose rights to the land have been established.  In practice, they are forced to deal with claimant groups which, frequently, have lodged applications because of Future Act notices and without any real opportunity to formulate their claims.  Many claims are now very old and as defective now as they were when they were lodged.  Curiously, the importance and frequency of development applications seem to lead to delay in the process of determining Native Title when they should lead to acceleration.  I will return to this point at a later stage.

The number of claims in Queensland magnifies the problem.  In the whole of Australia, there are 462 current applications for Native Title determinations.  They are divided as follows:

Without wishing to under-estimate the workloads of others, I should say that the difficulties associated with the Northern Territory claims seem generally to be minimal, at least in part because of earlier land rights legislation^[6] which has meant that the Native Title Act is of less significance there than it is in other areas.  However the Western Australian claims seem to share at least some of the difficulties which we experience.

The Queensland claims are widely distributed and, in almost all cases, relatively close to towns or cities which rely upon local pastoral, agricultural, industrial, mining and/or tourist industries for their survival.  Thus both indigenous and non-indigenous people throughout the state are closely interested in Native Title claims.  This has posed something of a problem for the Federal Court which has traditionally been based in the various mainland capital cities.  For a long time Queensland Native Title cases were managed from Brisbane.  Most of the people interested in Native Title claims in Queensland could only find out what was happening by hearsay, unless they were able to come to Brisbane for occasional and irregular case management hearings.

Some years ago we decided to change our arrangements with a view to increasing judicial involvement in case management and offering claimants and respondents increased opportunities to observe the system in operation and to participate in it.  We decided to conduct regional case-management hearings at traditional court centres served by the state courts including Rockhampton, Mackay, Townsville and Cairns, as well as Brisbane, and to introduce a much more pro-active case management approach.  Such decentralization partly reflected the way in which the land councils were organized.  We introduced a system of six-monthly review with written work plans, and tried to identify cases which were fatally flawed, as well as those which might eventually have to go to trial.  We no longer visit Mackay but regularly visit Mt Isa.  We have also been to Charleville and are going there again soon.

We quickly discovered that the performance of the land councils was, to say the least, uneven.  It was unclear how funds were allotted to cases.  In some areas, decisions as to Native Title funding seemed arbitrary, with little money being used for that purpose.  Some land councils seemed to cause friction in the indigenous community rather than resolve it.  The Court was partly responsible for these problems. Had we been more demanding in our case management requirements at an earlier stage, the recalcitrant land councils might have been forced to address their practices.  Perhaps we would have avoided substantial waste of money.  When we applied pressure to the applicants (and therefore to the land councils) in the form of case management goals, there were both positive and negative responses.  The poor performances by some land councils became more obvious.  At least in part, the recent reconstruction was brought about by these uneven responses.  We are greatly encouraged by the way in which the new system is working, particularly in areas which were previously almost “no go areas” for case management.  I should say that not all of the land councils were performing badly.  Some were, historically, very effective and remain so. 

Obstacles

We frequently encounter six major obstacles in our management of Native Title cases.  They are:

• lack of effective communications and decision making procedures within the applicant group and the wider claim group;
• badly formulated applications, many of which have been in place for many years;
• pre-occupation with Future Act negotiations;
• lack of adequate financial resources;
• lack of adequate legal resources; and
• delay in obtaining anthropologists’ reports.

Communications and decision-making procedures

Many, perhaps most, of our claim groups are not comprised of members of easily recognizable extended family groups living in close proximity to one another and the land in question.  Our claim groups tend to be loosely related groups which seek to establish their claims by reference to allegedly apical ancestors living in the relevant area at the time of first European contact, that is at some time between 1788 and the late nineteenth century.  Such lines of descent must be identified by reference to explorers’ journals, missions and graziers’ records, births, marriages and deaths registers, other state records, earlier anthropological and linguistic research, newspaper cuttings, written histories and indigenous lore passed down orally.  In assembling and assessing this material lawyers and anthropologists form views which may benefit some potential claimants and disadvantage others. 

From a large group of potential claimants, it is necessary to identify those who may be grouped together as being possibly able to advance a coherent claim, having regard to the available evidence.  Those who are omitted will be unhappy; but those who are included may also be dis-satisfied, usually because others have been included who, they say, should not have been.  Recently, we have heard complaints that families have been included in claim groups (with or without their consent) simply so that the wider group will be able to make a superficially justifiable claim to a particular area.  Not infrequently, the claim will have been instigated through the efforts of a small group of people whose membership of the claim group is disputed by other members.  However they will be in the box seat simply because they have initiated the process and will have established links with lawyers and anthropologists.  Once the application has been filed and registered, those initiators will be in a strong position to influence Future Act negotiations and the conduct of the Native Title proceedings.  They may have a degree of control over moneys received from Future Act negotiations.  That control will re-inforce their influence within the group, further annoying those who say that they should not even be in it.  All of this will be reflected in the way decisions are made by the applicant and by the claim group.

It is, perhaps, unfortunate that the Act does not prescribe the respective powers, rights and obligations of the claim group and the applicant.  As you know the applicant is usually a small group of claimants, selected to represent the claim group as a whole.  Sometimes, members of the applicant group will represent discrete groupings within the claim group.  Chronic delay leads to the frequent need to replace members of applicant groups.  That process often provokes disputes about whether individual members represent such discrete groups, and as to the method of replacement.

Similarly, the Act encourages disputes about decision-making processes within both the claim group and the applicant group.  There is frequent disagreement as to whether traditional or contemporary decision-making methods are to be adopted.  Such disagreement is further complicated by occasional resort to decision-making by elders and by the alleged need to have the agreement of various discrete groups.  Further difficulties are posed by the need to travel significant distances to attend meetings and the frequent lack of funds to pay for such travel.  Not infrequently, we hear complaints that some families are preferred to others in the allocation of funds for attendance at claim group meetings.  Such funds have usually been derived from negotiating ILUAs.  All of this must be seen in the context of the large number of claims, some very old, and not properly formulated, a problem to which I now turn.

Badly formulated and old applications

Many of our claims have been on the books since the 1990s.  In the early days, there was little clear understanding of what was involved in a Native Title claim, nor was there any filtering process designed to ensure that each claim was recognizable as a claim pursuant to the Act.  Applications were frequently filed on the strength of inadequate anthropological evidence and with little regard for whether they could, in the end, be proper bases for a Native Title determination.  Put simply, they were defective then and remain so now.  But they are still there.  In many cases they pose a serious problem to potential claimants who wish to lodge well-drafted and carefully considered applications.  It is virtually impossible to persuade applicants to discontinue defective claims, and many cannot be saved by amendment.  The applicants seek to hold on to them because of the negotiating rights which attach to them, notwithstanding their incurable deficiencies.  Only rarely does a respondent seek to strike out such an application.  When such an application is made, there is usually a range of reasons for not acceding to it, all of which involve a further opportunity to assemble relevant supporting material.  We are attacking this problem, but progress is slow.

Pre-occupation with Future Act negotiations

I have already dealt with the tendency for Future Act notices to provoke defective applications and the difficulties in resolving or disposing of them.  However Future Act negotiating rights cause other problems in case-management.  They frequently distract attention from the Native Title claim which supports them.  Much greater effort is put into the negotiation regime than into the primary litigation.  Financial resources derived from such negotiation seem often to be effectively quarantined from use in advancing the Native Title claim.  The negotiations and the money frequently cause trouble within the claim group, making decision-making that much more difficult.  Usually, the Native Title claim is conducted by a land council or similar body, using public funds.  On the other hand, Future Act negotiations are conducted by privately funded legal representatives.  Finally, in some cases, the existence of the right to negotiate is an absolute disincentive to prosecution of the Native Title claim, simply because it is well-known that the claim cannot succeed.  There is therefore no incentive to prosecute it to ultimate dismissal.

Having said all of that, I readily concede that it is in everybody’s interests that developers be able to deal with Native Title claimants, and that projects not be delayed for the lengthy periods of time presently typical of Native Title litigation.  However there is a problem of causation here.  As I have said, the delays are, themselves, substantially attributable to the negotiation regime.  To some extent the current requirement for registration has reduced the problem of defective applications.  However, in my view, it is far from satisfactory that substantial negotiating rights may be acquired simply by filing an application, however well it may be drafted.  If negotiation were suspended until after the Native Title determination, there would be a real incentive to accelerate the process.  That would be in the interests of the true Native Title holders and the wider community.  Of course it is also desirable that development projects not be delayed.  I wonder whether it would be possible to have a two-tier system of Native Title recognition, rather like the petty patent and innovation patent systems.  Such a system would involve a lower threshold of proof, leading to a provisional determination, with limited negotiating rights for a fixed period.  There would be provision for interested parties to seek revocation of any such provisional determination.  An applicant could first seek a provisional determination and, during its currency, prepare the case for a final determination.  Alternatively, the applicant might choose to seek only a final determination, in which case there would be no negotiating rights until it was made.

Bring money, guns (anthropologists) and lawyers

The other three obstacles can be dealt with together.  They are related.  I am not going to complain about the amount of money presently available for the conduct of Native Title claims.  I do not believe that we have demonstrated sufficient success with what we have to justify asking for more at this time.  However it must be accepted that Native Title determinations are very expensive, and that substantial resources will be required for some years to come.  We must use the money more effectively than we have in the past.  I am pleased to say that there have been promising innovations in that area.  Areas which still pose problems include:

• ensuring ongoing progress in all claims;
• making provision for the very expensive business of conducting the occasional trial; and
• funding dissident indigenous respondents.

Under the old land council system, none of these problems was directly addressed.  However that has changed.  There is also general recognition that there must be some system of prioritization so that resources can be effectively allocated.  Initially, to my mind, inexplicably, prioritization was based on the degree of progress already achieved in each matter so that the most advanced case got the most resources.  The level of developmental activity anticipated in a particular area was not treated as relevant.  That curiosity has now been resolved.

Shortage of money causes difficulty in attracting competent and experienced professional people, including lawyers and anthropologists.  Native Title litigation is complex and emotionally draining.  Over the years we have noted a substantial turnover in legal personnel.  There are few people with the necessary knowledge and experience who are willing to handle the heavy case load, particularly as the work often involves being located outside of the capital cities and/or travelling to remote areas.  Recruitment problems were, understandably, aggravated when some of the land councils were virtually non-operational.   Now, we seem to be in a rather better position.  However it will not be easy to hold on to the few capable and dedicated lawyers upon whom both the Court and the Native Title claimants rely.  I suspect that there is a need for specialist training courses to equip dedicated recruits for the task ahead.  We certainly cannot rely on being able to recruit lawyers with experience in conducting large scale litigation.

A major cause of delay is the time taken to identify an available anthropologist, get a place in his or her schedule, have the field work done and have the report prepared.  This suggests a shortage of anthropologists willing to work in the Native Title area.  I find that difficult to understand.  To some extent, the problem is aggravated by the tendency of claim groups to prefer particular anthropologists.  I would have thought that Native Title would be an attractive area of specialization, given the availability of funds and the guaranteed workload for the foreseeable future.  Nonetheless we are constantly told that reports cannot be produced within a reasonable time frame.  This is all the more surprising in view of the length of time which has passed since many of the claims were commenced.  It is obviously desirable that we encourage more undergraduates to specialize in this area and to remain in it once they graduate.

Of course the two-tier recognition system to which I have referred would reduce the amount of time needed to produce adequate reports, as well as the time needed to digest and act upon them.

Certainty

            In conclusion I want to say something about the ultimate goals of the Act and the extent to which we are presently contributing to their achievement.  The preamble to the Act suggests the following goals:

• to rectify the consequences of past injustice to our indigenous people;
• to ensure their proper recognition and status;
• to provide certainty for the wider Australian community concerning previous actions which were inconsistent with Native Title;
• to ensure that there is proper compensation for past and future extinguishment;
• to permit future disturbance of Native Title only in circumstances in which freehold title would typically be disturbed; and
• to provide the broader Australian community with certainty concerning such future activity.

Clearly, Parliament placed great importance upon certainty.  The Court’s role is to provide certainty as to the existence of Native Title and, in particular, as to the identity of the Native Title holders, the affected land and the rights which are recognized.  Although not in those terms, s 225 requires such certainty.  A Native Title determination operates to restrict or prevent inconsistent conduct by government, corporations and natural persons.  Enforcement depends upon the ability to identify both the party entitled to enforce such rights and the rights themselves.  Given the need for certainty, we should, in our determinations, by consent or otherwise, exercise as much care as we do in settling the terms of an injunction.  Indeed, more care is needed simply because we will not be able to foresee all of the circumstances in which the determination might possibly operate. 

I am far from persuaded that we are presently being careful enough in this regard.  There is an emerging view that we can avoid clear identification of the claim group, leaving it to some system of identification within the group itself.  Not infrequently, the identified rights seem to owe more to a standard form than to the evidence in the case.  My point is that we may be sowing the seeds of future conflict, both within the Native Title holding groups and between those groups and the wider community. 

An associated problem is the suggestion that the Court should simply accept a proposed consent determination and not look to see if there is at least an arguable basis in the evidence for it.  Such an approach overlooks both the Parliamentary intention that there be certainty and the terms of ss 13 and 61 concerning revocation of a determination.  If the basis of a consent determination cannot be identified, then there is the real risk of continuing dissatisfaction with it on the part of Native Title holders, excluded indigenous persons and the non-indigenous community.  That dissatisfaction may endure and become increasingly bitter, causing uncertainty, particularly given the possibility of revocation.  There is then the risk of further destabilization caused by an extended campaign for revocation and the revocation process itself. 

Identification by the Court of a clear link between the available evidence and the determination leaves less room for uncertainty.  More importantly, on any application for revocation the grounds identified in s 13(5) will be more easily established if the rationale for the original decision is simply the consent of the parties at the time.  We know that, like all social groups, indigenous families and communities have their disagreements.  We know, too, that there will be future development on land subject to Native Title determinations, and that some developers will seek to advance their own causes by fermenting dissent within Native Title holding groups.  All of us who are involved in Native Title determinations must be conscious of the need to minimize the potential for future disputes in both the short and long term.  That is at least part of what Parliament meant when it spoke of “certainty”. 

In conclusion, we must hope that the expense and pain of the Native Title process will produce an Australian society which accommodates the histories, cultures and aspirations of us all.  I do not mean to adopt the sometimes simplistic language of multiculturalism.  I speak rather of a society marked by mutual respect, mutual recognition and mutual tolerance.  I firmly believe that the Native Title system has the capacity to contribute substantially to the building of that society.