DAN O’GORMAN S.C.
BARRISTER-AT-LAW
REVIEW OF NATIVE
TITLE ORGANISATIONS
Department of Families, Housing,
Community Services and Indigenous Affairs
and Deloitte Access Economics
September 2013
Liability limited by a scheme approved under Professional Standards Legislation
ROMA MITCHELL CHAMBERS
9th FLOOR, QUAY CENTRAL
95 NORTH QUAY
BRISBANE QLD 4000
TEL (07) 3236 1431 FAX (07) 3236 3949
MOB 0418 769 653
dogorman@qldbar.asn.au
ABN 96 784 086 439
2
Deloitte Access Economics
PO Box N 250
Grosvenor Place
SYDNEY NSW 1220
Attention: Native Title Review Team
RE: ACCOUNTABILITY OF PRIVATE AGENTS
INDEX
INTRODUCTION ...............................................................................................................2
THIS SUBMISSION ...........................................................................................................4
BACKGROUND .................................................................................................................5
ACKNOWLEDGMENT OF CERTAIN MATTERS .........................................................6
ROLE OF NATIVE TITLE .................................................................................................7
CONFLICT INEVITABLE/ HARM TO COMMUNITIES................................................8
SOME RELEVANT LAW ................................................................................................ 14
REGULATIONS OF NTRB/NTSP AND “PRIVATE AGENTS” ...................................16
SOURCE & EXAMPLES OF THE PROBLEM ............................................................... 18
CONSEQUENCES ............................................................................................................28
NECESSARY REFORMS ................................................................................................ 30
CONCLUSION ..................................................................................................................52
INTRODUCTION
1.
This submission to the Review of the Roles and Functions of Native Title
Organisations focuses on the issue of professional practitioners operating in the
field of native title, particularly “private agents”.
Hence, I address the following
specific question raised in the Discussion Paper1:
“Would there be value in greater regulation of private agents, e.g.
a registration system, constraints on private agents undertaking particular
activity? Should private agents assisting Indigenous parties be made
subject to some of the same standards and obligations as set down for
NTRBs/NTSPs under the Act?”
2.
The reason I focus on this particular issue is that I have in recent times become
increasingly concerned about the behaviour of some “private agents” and the
resulting impact such behaviour has on the Indigenous clients who use the services
1
Discussion Paper of Deloitte Access Economics of June 2013 at chapter 4, particularly page 23.
3
of those “private agents”. It has become apparent to me as a practitioner in the area
of native title that the use of “private agents” does not always eventuate to be in the
furtherance of the best interests of all of the relevant native title claimants / holders.
3.
In summary, this submission argues that:
(a)
“Private agents” play an important role representing native title claimants /
holders in the context of the native title claim process and agreement making
and in providing a range of services utilised by native title holders subsequent
to the resolution of these issues (as stated in Deloitte’s Discussion Paper
dated June 20132);
(b)
However, there are negative impacts for native title claimants / holders
caused by the practices of some private agents (also as referred to in the
Discussion Paper dated June 20133);
(c)
These impacts could be minimised with, among other things, the adoption of
some or all of the following reforms:
(i)
The establishment of a national system of registration for all native title
practitioners, including “private agents”, administered by the National
Native Title Tribunal (“the NNTT”); and/or
(ii)
The establishment of a new complaints regime whereby complaints
about the professional behaviour of native title practitioners, including
“private agents”, would be determined by the NNTT; and/or
(iii) A requirement that all monies received by private agents as a result of
“future act” and cultural heritage matters must be held on trust for the
benefit of all of the native title claimants/holders of the land and/or seas
in question; and/or
(iv) A requirement that all fees and/or commissions received by “private
agents” in native title proceedings be placed on a register maintained by
the NNTT, and that register be available for inspection by anyone
deemed by the NNTT to have a genuine interest in such information;
and/or
(v)
The clarification of the fiduciary duties owed by professional
practitioners in native title processes;
2
3
Discussion Paper of Deloitte Access Economics of June 2013 at page 21 [4.1].
Discussion Paper of Deloitte Access Economics of June 2013 at page 22 [4.2].
4
(vi) The establishment of a fund out of which NTRBs/NTSPSs might
launch test cases relating to the behaviour of “private agents” might be
launched; and/or
(vii) The drawing up of a “Code of Conduct” applicable to all native title
practitioners; and/or
(viii) The availability of “Mandandanji / Rares J” type remedies.
4.
The role of “private agents” in native title processes must be reviewed in the
context of that part of the Native Title Act 1993 (“the NTA”) which establishes
mechanisms for the provision of services to native title claimants / holders on a
regional basis through bodies now known as native title representative bodies
(NTRBs), native title service providers (NTSPs), prescribed bodies corporate
(PBCs) and registered native title bodies corporate (RNTBCs). While some of
these services are made available free of charge to native title claimants / holders
via the services provided by NTRBs/NTSPs, native title claimants / holders may
choose to retain “private agents” who sometime operate outside the regulatory
framework imposed on NRRBs/NTSPs by the NTA.
That is, while the NTA
contemplates that native title groups will usually be represented by NTRBs/NTSPs,
s. 84B of the NTA permits such services. This is the case even though:
(a)
The NTA does not contain any regulatory mechanism in respect of these
private agents; and
(b)
NTRBs/NTSPs have built up a great deal of experience over some 20 years
of their existence and they are “not for profit” bodies.
THIS SUBMISSION
5.
After outlining the background to this submission and acknowledging certain
matters, this submission:
(a)
Looks at the role of native title generally;
(b)
Acknowledges that while some of the systems contained within the NTA
inevitably cause harm to Indigenous communities and that some level of
intra-Indigenous conflict is inevitable as a result of the processes provided for
in the NTA, this level of harm and conflict can and should be reduced;
(c)
Outlines some relevant law;
(d)
Looks at the source and examples of the problem;
(e)
Outlines some of the consequences of the problem;
(f)
Suggests potential reforms.
5
6.
When using the term “private agents”, I adopt the definition of “private agents”
used in the Discussion Paper,4 that is, “professionals from disciplines, including
anthropology law and commercial development”,5 particularly parties acting
without any involvement from NTRBs/NTSPs.
BACKGROUND
7.
It has, unfortunately, become very apparent in recent times that problems
associated with the consumer protection of native title claimants/holders needs to
be addressed and made the subject of reform.
8.
There has in recent times a developing growing awareness that some internal
disputes within native title groups (“intra-Indigenous disputes”) are sometimes
contributed to at least in part by unacceptable behaviour by some “private agents”
representing Indigenous native title claimants / holders.
9.
The issue of “private agents” forms part of the review established by the Minister
for Families, Community Services and Indigenous Affairs, that being the review
being undertaken by Deloitte Access Economics (“Deloitte”) (see above). More
particularly, that review has as one of its areas of interest the issue of “private
agent”.6
10.
As a barrister practising in, among other areas, native title, the behaviour of some
“private agents” has become a concern to me. I stress that the number of “private
agents” whose behaviour is of concern is not significant. However, the damage
that that small number of “private agents” cause the interests, particularly the
financial interests, of the true native title claimants/holders is significant.
11.
I have observed that the destructive role played by some “private agents” is
particularly present in those regions of Australia where commercially exploitable
natural resources are being harvested. The behaviour of some of the practitioners
who are attracted to earn income in this particular area of native title has led me to
cynically view native title as akin to a honey pot, which, too often, attracts the
wrong kind of bees. It is an unfortunate fact that some practitioners in the area of
4
Discussion Paper of Deloitte Access Economics of June 2013 at page 21.
Discussion Paper of Deloitte Access Economics of June 2013 at page 21.
6
Discussion Paper of Deloitte Access Economics of June 2013 at pages 21-23.
5
6
native title view intra-Indigenous disputes, whether actual or potential, as simply a
source to make money.
ACKNOWLEDGMENT OF CERTAIN MATTERS
12.
The first thing I wish to acknowledge is that I make this submission in a private
capacity, albeit by calling upon my experience in my practice as a private barrister
at the Queensland Bar, particularly in the area of native title. However, it should in
no way be considered that the views expressed herein are those of any other person
or group with whom I am, or perceived to be, associated.
13.
I stress that the alleged adverse behaviour of “private agents” outlined in this
submission is the behaviour of only a very small number of such “private agents”.
However, the damage that can be done by even such a small number of “private
agents” to native title claimants / holders, can be, and I submit has been, of such
significance that there is now a clear need to investigate what can be done to make
that small number of “private agents” more accountable and to better protect the
interests of native title claimants / holders.
14.
I further acknowledge the right of native title claimants / holders to decide for
themselves how and where they obtain their professional services, including legal
services, and it is not for others to dictate to those native title claimants / holders
whose services they shall use. However, I submit that when such native title
claimants / holders seek the services of a professional practitioner, whether it be a
“private agent” or a NTRB/NTSP, those native title claimants / holders are entitled
to be sure that the person/s providing those services are equipped with the relevant
knowledge and expertise to provide those services to a very high level and that in
providing such services the professional practitioner will place the best interests of
the native title claim claimants / holders before their own. Put another way, I
submit that wherever native title claimants / holders obtain their professional
services to enable them to pursue their native title rights and interests, they should
be able to do so safe in the knowledge that the professionals providing those
services are both properly equipped to provide those services and are prepared to
provide those services in the best interests in the native title claimants / holders.
15.
To investigate what reforms might be necessary to ensure as far as possible that
such goals are achieved, it is useful to briefly outline the role of native title, outline
7
why it is that a degree of intra-Indigenous conflict and harm to Indigenous
communities is inevitable as a result of native title in its current form in Australia,
outline the more relevant legislative provisions, and provide examples of the types
of problems that arise as a result of the behaviour of, among others, “private
agents” who do not put the interests of native title claimants / holders first.
ROLE OF NATIVE TITLE
16.
In the ideal world, native title should:
(a)
Result in the native title rights and interests of Traditional Owners being
recognised; and
(b)
Lead to sustainable economic, social and cultural benefits flowing to the
native title holders.
17.
However, this does not always occur.
18.
In his media release of 7 June 2013 releasing draft terms of reference for the
Australian Law Reform Commission to inquire into native title law, the then
Commonwealth Attorney-General referred to, among other things:7
“• the importance of native title to Indigenous Australians, including the
capacity of native title to support Indigenous economic development and
generate long-term benefits for Indigenous Australians
……
(d) opportunities presented by native title processes for Indigenous
communities, through a range of native title and native title related outcomes
(such as sustainable Indigenous economic development, heritage protection,
employment and housing opportunities) ……”.
19.
For these results to be achieved to the maximum extent possible, services need to
be provided to the native title claimants / holders both pre and post the making of
the native title determinations. Such services are necessary to assist the native title
claimants / holders to, among other things:
(a)
Secure native title rights and interests via, for example, the negotiation and
implementation of native title determinations, alternative and comprehensive
settlements and future acts;
(b)
Manage native title via, for example, the support of organisational
development, corporate compliance and agreement implementation; and
7
Draft Terms of Reference, Review of the Native Title Act 1993, 7 June 2013, at pages 1 and 2.
8
(c)
Pursue economic, social and cultural development via, for example,
enterprise development, investment facilitation, business planning and
evaluation and program development and monitoring.
CONFLICT INEVITABLE/ HARM TO COMMUNITIES
20.
It is acknowledged that if the inappropriate behaviour of “private agents” was
totally eliminated, some level of intra-Indigenous disputes would remain because
some level of intra-Indigenous conflicts is inevitable as a result of native title
processes generally and in the NTA in particular.
21.
In his Native Title Report 2011, the Aboriginal and Torres Strait Islander Social
Justice Commissioner, Mr Mick Gooda dealt with this topic in the context of
“lateral violence” which he:
(a)
accepts to mean thus:8 “[T]he organised, harmful behaviours that we do to
each other collectively as part of an oppressed group: within our families;
within our organisations; and within our communities. When we are
consistently oppressed we live with great fear and great anger and we often
turn on those who are closest to us.”
(b)
Defines in the native title framework as “intra – or inter – Indigenous
disputes”.9
22.
Commissioner Gooda examined how native title provides a contemporary vehicle
for such “lateral violence” to be played out in Indigenous families, communities
and organisations.10 Commissioner Gooda:
(a)
Outlined that he was of the view that such violence is occurring across all
regions in Australia and at all stages of the native title process;11
(b)
Acknowledged that while disputes and conflict are central to all social
systems, “lateral violence” in Indigenous communities stems from their
“experiences of powerlessness that come from all oppression. In addition,
the way lateral violence plays out in our families and communities creates a
very different dimension to ‘conflict’ and ‘disputes’ because of the close
8
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 77.
9
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 76
10
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 80
11
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page1.
9
community and kinship ties that exist in “Aboriginal and Torres Strait
Islander Communities;”12
(c)
Stated as follows:
(i)
“Lateral violence occurs in native title because the nonIndigenous process imposed by government reinforces their
position of power and reignites questions about our identity.
Concepts of power and identity are aggravated in native title
because of the inherent contradiction between past government
policies in Australia that removed our peoples from our country13
and the current requirement under the Native Title Act for us to
prove continuing connection to our lands and waters since the
arrival of the British. For many of us, ‘native title is absolutely a
political (as well as cultural, economic and social) issue not just a
legal one, and one that lies at the core of relations between [us]
and the wider Australian society’ (emphasis in original).
(ii)
“Native title can reinforce the imbalance of power between
non-Indigenous peoples and Aboriginal and Torres Strait Island
peoples as well as positions of authority within our communities.
For government and industry, the native title process can be used
to affirm their control, access to and use of lands and resources.
Within our communities, native title can be used to promote
positions of authority as we deal with our history of powerlessness
and oppression, and questions about our identity.”14
(iii) “The requirement for native title claim groups to interact with a
wide range of stakeholders with different interests (including
government, industry and the Federal Court, the Tribunal and
native title organisations who each have particular statutory
functions, policy positions and funding arrangements) creates a
complex web of relationships that make it feel like it’s ‘us against
the world’. This large number of interests that need to be satisfied
12
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page77.
13
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 80.
14
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 81.
10
can further undermine our capacity to assert our authority in the
native title process.”15
(iv) “The 11 native title claims determined between 1 July 2010 and
30 June 2011 spent a minimum of four years to a maximum of
12 years in mediation. I share the view of my predecessor, Tom
Calma, who observed in the 2007 Native Title Report, that the ‘the
design of the [native title] system, the way it operates, and the
processes established under it’ delays the resolution of native title
claims. However, I also believe that lateral violence can
contribute to delaying native title determinations.”16 (citations
omitted).
(v)
“In summary, the process to complete a native title claimant
application can contribute to lateral violence in our communities
because we are required to adapt our identity, relationships and
notions of land and culture into the non-Indigenous construct of
native title. This aggravates our feelings of disempowerment and
is possession, and challenges to our identities and our connection
to country become weapons of lateral violence that we can use
against each other.”17
(vi) “In summary, the complex and demanding process to recognise
our native title rights creates opportunities for lateral violence
within our families, communities and organisations. This is
because the non-Indigenous policies and structures that govern
the native title process require us to endure the significant burden
of proving that our connection to our country exists – even though
the experience of colonialism has taken many of us from our
country and the meaning of land and resources has changed to
accommodate non-Indigenous legal and commercial values.
Nonetheless, many of us continue to demonstrate our strength and
our optimism by participating in the native title process in the
hope that our rights to our country will be recognised.”18
15
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 87.
16
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 98.
17
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 94
18
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, at page 106.
11
23.
In their study relating to conflict created by native title, Larissa Behrendt and
Loretta Kelly state that the fundamental conflict that is at “the heart of the
relationship between a NTRB and a claimant group.
The NTRB is the
representative of its client (the claimant group), yet it also finances its client”
(emphasis in original).
24.
A natural cause of some of the intra-Indigenous conflict is the very fact that the
recognition of native title is normally of great importance to the Traditional
Owners. As former Federal Court Justice Murray Wilcox has observed:19
“A court decision to recognise native title always unleashes a tide of joy. I
believe this has nothing to do with any additional uses of the land … rather,
the fact that a government institution has formally recognised the claimant
group’s prior ownership of the subject land and the fact of its dispossession.
That recognition is what Aboriginal people are seeking.”
25.
The adversarial process contained in the native title processes generally and in the
NTA in particular can be destructive of harmony within Indigenous communities.
For example, the manner in which the Australian legal system operates necessarily
means that a particular group pursuing a native title determination application is
sometimes required to engage in adversarial behaviour, thereby acting contrary to
the interests or other claim groups. However, the extent of intra-Indigenous conflict
arising as a result of native title proceedings has long been a concern of many
observers of the native title processes.
26.
The nature of some of the native title processes will itself inevitably cause some
level of discord within native title claim groups because, among other things:
(a)
The establishment of native title requires extensive proof of identity and
connection to country in the context of dispossession of the type referred to
by Justice Wilcox, and such questions relating to identity can exacerbate
lateral violence in Indigenous communities;20 and
(b)
Conflict is unavoidable in any system of property law where rights capable of
legal recognition are often the subject of competing claims.
19
M Wilcox QC, Mabo Oration 2009- Comments on the 2009 Oration (Speech delivered in response to the
2009 Mabo Oration, Brisbane, 5 June 2009).
http://www.adcq.qld.gov.au/ATSI/FromSelfRespect_comments.html (viewed 6 October 2011).
20
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, page 156.
12
27.
The NTA itself, and the processes it contains, is a part of the problem:
(a)
Hal Wootten has observed that legal processes are ill-suited to addressing
historical dispossession, contending that relegating postcolonial dilemmas
“… to litigation in private actions based on existing rights, in courts
designed to settle legal rights by an adversary system within a relatively
homogeneous community, is at once an insult to the Indigenous people and a
prostitution to the courts.”21
(b)
In 2008, the then Commonwealth Attorney-General Robert McClelland was
critical of “pursuits intoxicated by their expertise in a technical and
complicated system”,22 arguing that “we need to move away from technical
legal arguments about the existence of native title.”23
(c)
Mr Noel Pearson has stated that the “… differences within Aboriginal
communities that are convulsed by arguments such as this produce much
psychological and spiritual hurt.
Indeed, it physically sickens and kills
people.”24
(d)
Mr Noel Pearson has also argued thus:25
“[t]he way in which claims were organised, lodged and prosecuted by
Indigenous groups and their advisors following the enactment of the
1993 legislation could not have been more harmful to Indigenous
interests. We failed to control greed and the power struggles within and
between claimant groups, not the least between conflicting parts of
families … The 1998 amendments helped to put more rigour into the
process but many of the claims that are registered were prepared with
as much planning, strategy, forethought and consultation as went into
the European dismemberment of colonial Africa.”
Hal Wootten, ‘Conflicting Imperatives: Pursuing Truth in the Courts’ in Iain McCaalman and Ann
McGrath (eds), Proof and Truth: The Humanist as Expert (Australian Academy of the Humanities, 2003)
15, 34.
22
Robert McClelland, (Speech delivered at the Negotiating Native Title Forum, Brisbane, 29 February
2008) [17].
23
Robert McClelland, (Speech delivered at the Negotiating Native Title Forum, Brisbane, 29 February
2008) [5].
24
Pearson was referring in particular to the role of environmental groups who oppose the planned gas hub
at James Price Point. He charged that such groups were ‘exploiting divisions within the traditional
owners’: see, eg, ‘Federal Court Dismisses Gas Hub Appeal’, Sydney Morning Herald (online), 29 April
2011 http://news.smh.com.au/breaking-news-national/federal-court-dismisses-gas-hub-appeal-201104291e07w.html; Noel Pearson, ‘When Outsiders Stir Up Tensions in Tribal Societies’, The Australian (online),
10 September 2011 http://www.theaustralian.com.au/national-affairs/opinion/when-iutsiders-stir-uptensions-in-tribal-societies/story-e6frgd0x-1226133481670. Pearson, above n 2.
25
Noel Pearson, “Mabo Lecture: Where We’ve Come from and Where We’re at with the Opportunity That
is Koiki Mabo’s Legacy to Australia” in Lisa Strelein (ed), Dialogue about Land Justice: Papers from the
National Native Title Conference (Aboriginal Studies Press, 2010) 33, 40.
21
13
(e)
Commissioner Calma has spoken of the NTA thus:26
“With regard to the first two policy responses, I have longstanding
concerns that amendments made to the Act since its commencement
have significantly limited the benefits that could be achieved by native
title holders, and that the objectives of the Indigenous Land
Corporation have not been met and require review. I also believe that
both of these policy responses have contributed to lateral violence in
communities, with native title claimants constantly required to
negotiate their rights within frameworks that are designed to prioritise
the interests of governments and industry.
Many Aboriginal and Torres Strait Islander peoples also feel that the
native title system has not delivered the intended outcomes for our
lands, territories and resources. In particular, many people have the
view that native title delivers limited meaningful recognition of the
rights, interests, obligations and responsibilities they hold in their
country under the traditions and customs of their own society.
As governments begin to understand that our relationship to our lands
and resources is interconnected to our overall physical, spiritual and
cultural well-being, the need to return to the original intent of the
Native Title Act should become more apparent.
Native title
stakeholders have consistently raised the requirement to create a just
and equitable native title system. I have also advocated the need for a
holistic review of the operation of the native title system to ensure that
it complies with international human rights standards.
In the following section I discuss how the system can be reformed to
strengthen the effective participation of Aboriginal and Torres Strait
Island peoples. I also argue that reinforcing the native title system with
social justice measures will ensure that Aboriginal and Torres Strait
Islander policy is developed in a holistic way to close the gap and
contribute to overcoming disadvantage across all social indicators.”
(f)
The United Nations’ Committee on the Elimination of Racial Discrimination
has expressed regret that as a result of “the persisting high standards of proof
required for recognition of the relationship between indigenous peoples and
their traditional lands, … many are unable to obtain recognition of their
relationship to land (art. 5).”27
28.
The NTA has arguably not produced all of the outcomes that has been hoped for by
the legislators when the NTA was passed. Native title processes in general, and the
NTA in particular, have often created and/or exposed decisions within Indigenous
communities. Often these processes exacerbate intra-Indigenous disputes.
26
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011,
Australian Human Rights Commission, page 156.
27
Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on
the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At
http://www2.ohchr.org/english/bodies/cerd/cerds77.htm
14
29.
The consequences of intra-Indigenous conflicts upon the native title claimants /
holders can be, and have been, significant. Such conflicts have, among other
things, resulted in a failure to maximise the benefits that should flow from native
title, frustration and personal conflicts and fractures within the Indigenous
community and beyond, and also resulted in disputes within native title parties
more broadly.
SOME RELEVANT LAW
30.
The NTA provides the legislative framework for the operation of the native title
system. The decision of the High Court in Mabo v Queensland (No. 2), 28 and the
NTA have exposed the myth of terra nullius. As former Prime Minister Paul
Keating has stated:29
“[T]he Native Title Act went a substantial way in settling the fundamental
grievance of indigenous Australia; the brutal dispossession of their lands and
the smashing of their ways of life at the hands of an alien imperial power … I
saw the opportunity of the native title route as a modality in dealing with and
settling unresolved questions of indigenous land justice in this country …
One of its main objects is to ‘provide for the recognition and protection of
native title’; that is, those rights and interests finding their origin in
indigenous law and custom; not finding those rights and interests arising
solely or peculiarly from the Act itself.”
31.
Of some relevance to the background to intra-Indigenous conflict is the concept of
“society” in native title law:
(a)
In Members of the Yorta Yorta Aboriginal Community v Victoria,30 a majority
of the High Court concluded that claimants of group rights must be members
of “… a body of persons united by its acknowledgment and observance of
law and customs”31, with the rights and interests claimed being “… the
creatures of a body of laws and customs of a particular society that exists as
a group which acknowledges and observes those laws and customs”;32
(b)
The majority in Yorta Yorta concluded that to satisfy the requirement in s.
225 of the NTA:33
28
(1992) 175 CLR 1.
P Keating, ‘Time to revisit native title laws’, The Australian, 01 June 2011. At
http://www.theaustralian.com.au/national-affairs/opinion/native-title-laws-retain-some-inequality/storye6frgd0x-1226066685042 (viewed 24 September 2011).
30
(2002) 214 CLR 422.
31
Per Gleeson CJ and Gummow and Hayne JJ at [49].
32
Per Gleeson CJ and Gummow and Hayne JJ at 455 [50].
33
Per Gleeson CJ and Gummow and Hayne JJ at 456 [87].
29
15
“… acknowledgement and observance of those laws and customs must
have continued substantially uninterrupted since sovereignty. Were
that not so, the laws and customs acknowledged and observed now
could not properly be described as the traditional laws and customs of
the people concerned.” (emphasis in original)
(a)
Hence, native title rights and interest to land and waters can only be
possessed if there exists a normative society, united by acknowledgement and
observance of traditional laws and customs that gives rise to those rights and
interests;
(b)
Such a society need not be constituted by an individual claim group but
rather, it could be a wider regional group;
(c)
However, the society must have has a continuous existence and vitality since
the assertion of British sovereignty; and
(d)
A claim must include all members of the society, and must not include any
persons who are not members.
32.
The NTA:
(a)
Establishes processes that are legal in nature;
(b)
Enables Indigenous people who are able to prove pre-sovereignty possession
of proprietary rights to have those rights recognised in Australia’s system of
law;
(c)
Provides that native title determination applications are to be mediated and, if
necessary, determined by the Federal Court;
(d)
Provides for State and Commonwealth governments and other parties to be
respondents to native title determination applications;
(e)
Provides that evidence is required to prove a native title determination
application; and normal court procedures are generally followed.34
33.
The concept of “the applicant” is important:
(a)
The native title claim group is required by the NTA to appoint an “applicant”
to progress the native title claim group’s native title determination
application;35
(b)
The applicant will be comprised of “a person or persons”36 who must be
members of the native title claim group;37
NTA, s.82(1) provides that the Federal Court is bound by the rules of evidence “except to the extent that
the Court otherwise orders”. Section 82(2) enables the Court to “take account of the cultural and
customary concerns of Aboriginal peoples and Torres Strait Islanders” in conducting its proceedings, “but
not so as to prejudice unduly any other party to the proceedings.”
35
NTA, s. 61
34
16
(c)
The applicant is entitled empowered by s.62A of the NTA to “… deal with all
matters arising under (the NTA) in relation to the application”;38
(d)
Hence the applicant has exclusive standing to deal with all matters arising
under the NTA in relation to the application.39
REGULATIONS OF NTRB/NTSP AND “PRIVATE AGENTS”
34.
The NTA provides for the establishment of NTRBs/NTSPs to assist native title
claimants / holders in progressing claims but does not prevent “private agents”
providing such services.40
35.
The NTA also:
(a)
Places upon such NTRBs/NTSPs certain obligations and functions which
NTRBs/NTSPSs are obliged to “assist”, “consult with”, and “have regard to
the interests of” any “registered native title bodies corporate, native title
holders and persons who may hold native title”;41
(b)
Requires NTRBs/NTSPs to attempt to “identify persons who may hold native
title”42 and must maintain organisational structures and administrative
processes that “promote satisfactory representation … of native title holders
and persons who may hold native title” within its region43 it represents;
(c)
Places significant funding constraints and other fundamental limitations upon
NTRBs/NTSPs;
(d)
Permits NTRBs/NTSPs to represent native title parties in pursuing native title
determination applications, compensation applications, future act agreements
and ILUAs, and in general these functions can only be performed at the
request of the relevant native title claimants / holders;
(e)
Provides that in performing these functions NTRBs/NTSPSs are bound by an
extensive regulatory regime contained in Part 11 of the NTA.
36
NTA, s. 61(1)
NTA, s. 61(1).
38
NTA, s. 62A (which deals only with claimant applications and compensation application. For provisions
dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2 of the NTA).
39
See, for example, Gilmour J in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809
at [35]-[41], and Tigan v Western Australia [2010] FCA 993 at [11]-[15].
40
NTA, pt 11. For a discussion of the creation, disparate aims and internal contradictions of NTRBs, see
David Ritter, Contesting Native Title: From Controversy to Consensus in the Struggle over Indigenous
Land Rights (Allen & Unwin, 2009) ch 3.
41
NTA, ss 203BB(1)(b), 203BC(1)(a).
42
NTA, s 203BJ(b).
43
, NTA, s 203BA(2)(a).
37
17
36.
In addition to the regulation of NTRBs/NTSPSs provided for in Part 11 of the NTA,
NTRBs/NTSPs are also subject to the prescriptive terms of their Program Funding
Agreements (“PFAs”)44 which include requirements relating to, among other
things, consultation with FaHCSIA regarding key personnel appointments and
accounting for “program generated funds” which would include fees or
commissions arising from future act negotiations. The ability of FaHCSIA to
withdraw funding from an NTRBs/NTSPs effectively operates as a further
regulatory mechanism. Finally, decision made under s. 203BB by NTRBs/NTSPSs
are subject to external review pursuant to s. 203FB.
37.
The NTA does not require native title claimants / holders to utilise the services of
the relevant NTRB/NTSP in pursuing native title determination applications,
compensation applications, future act agreements and ILUAs. However, a party can
be represented in the Federal Court by a person other than a legal practitioner only
by leave of the Court.45
38.
In practice, the funding provided to NTRBs/NTSPSs to represent native title
claimants in native title determination applications and the “no costs” provision
contained in NTA46 means that it is generally the case that only NTRBs/NTSPSs (or
“private agents” funded by NTRBs/NTSPSs) represent native title claimants in
native title determination application and compensation application proceedings.
However, the same is certainly not true in relation to future act negotiations and
agreements.
39.
While NTRB’s/NTSP’s provide services, including legal, anthropological and
financial services, to native title claimants / holders free of charge, such services
are also provided by “private agents” for financial rewards and other benefits.
40.
If “private agents” are a legal practice, the only regulatory regime is that applicable
to all lawyers. In the event an agent is an entity that is not a legal practice, even one
that employs legally qualified staff, there is no regulatory regime.
44
See, for example, NTA, s. 203FE.
NTA, s. 85.
46
NTA, s. 85A.
45
18
41.
Legal practitioners employed by the NTRBs/NTSPSs to undertake these functions
are bound by the legislative and other standards applicable to the broader legal
profession under the relevant professional conduct rules.
42.
The behaviour of lawyers in Australia is already regulated via legislations 47 and via
other means such as the common law duties and obligations imposed on lawyers,
the supervision of lawyers by the Courts generally, including the exposure to the
payment of legal costs in certain circumstances 48, the accountability of lawyers in
their capacity as officers of the Court and via their supervision by bodies such as
Legal Services Commissions. However:
(a)
It is submitted that such regulation has been proven insufficient to maintain a
high standard by all lawyers practising in the area of native title;49
(b)
Hence, I submit there is need for even further regulation in the area of native
title practice, especially as most of the native title claimants / holders are
persons with limited education and limited experience in many of the areas in
which those native title claimants / holders must operate when trying to
pursue their native title claims in general and their native title rights and
interests in particular.
43.
Unfortunately, anthropologists are not, as far as I am aware, subjected to any form
of regulation even though they play a very important role in many native title
processes.
SOURCE & EXAMPLES OF THE PROBLEM
44.
It is submitted that experience has shown that the use of the services of such private
agents has not always been in the best interests, including the financial interests, of
47
For example, Legal Profession Act 2004 (NSW); Legal Practitioners Act 1981 (SA), Legal Profession
Act 2007 (Qld), Legal Profession Act 2007 (Tas), Legal Profession Act 2008 (WA).
48
See, for example, Federal Court of Australia Act 1976 sections 43P, 37M and 37N, NTA, section 85A,
Lemoto v Abike Technical Pty Ltd & Ors (2005) 63 NSWLR 300 per McColl JA (with whom IPP JA
agreed and with whom Hodgson JA substantially agreed) at 318-326 [83] – [115].
49
For example, the following statement of Davies JA in Steindl Nominees Pty Ltd v Laghaifor [2003]
QCA 157 illustrates that it is very difficult to establish improper behaviour on the part of the lawyers:
“If it is counsel’s duty to exercise his or her own independent judgment upon which points will be
argued it must also be his or her duty, in the exercise of that judgment, to decide whether there is
any point which can be argued. Greater care must be taken, in judging the conduct of a lawyer
for a party in litigation, where the arguability of that party’s case depends on a question of fact
than where it depends on a question of law, for it is not for counsel or solicitor to sit in judgment
on the reliability of his or her client’s witnesses. Nevertheless the question, in my opinion, is the
same whether it depends on fact or law. If the case is plainly unarguable it is improper to argue
it.”
19
native title claimants / holders and is sometimes problematic for those native title
claimants / holders. In elaborating upon this submission, it is useful to outline:
45.
(a)
General examples of how this problem arises; and
(b)
Specific examples of the problems.
The following is a description of events that actually occurred in one matter that I
am personally aware of:
(a)
The NTRB/NTSP was the solicitor on the record for the native title claim
group;
(b)
A Connection Report was obtained and it indicated that some apicals who, to
that particular stage of the proceedings, were apicals listed in the relevant
Form 1 (that is, the formal native title determination application filed in the
Federal Court in that proceeding) should be removed as apicals because the
evidence obtained by the anthropologist who compiled the Connection
Report did not support the inclusion of those apicals in that particular native
title claim group description;
(c)
One of those apicals was relevant to one of the persons constituting the
applicant in that native title claim;
(d)
That person was a particularly forceful person within the small group of
people constituting the applicant in those proceedings;
(e)
That same person entered into an agreement with a private lawyer, an
arrangement that was not disclosed to the whole of the native title claim
group;
(f)
The applicant, using funds that rightfully belonged to the whole of the native
title claim group, “stacked” a meeting (that is, organised the “numbers” at
that meeting) that resulted in the services of the NTRB/NTSP being
terminated and the appointment of that private lawyer as the lawyer for the
applicant in the native title determination application;
(g)
Consequent upon the appointment of the private lawyer, the following
occurred:
(i)
A corporation was created to manage some of the financial affairs
connected with businesses of the whole claim group;
(ii)
A member of the broader native title claim group who was not a person
who constituted the applicant wanted information about the financial
affairs of the corporation and wanted the corporation to be more
accountable to the broader claim group;
20
(iii) That person was unable to obtain that information from the applicant
and was unable to get the applicant to be more accountable to the
broader claim group;
(iv) That person therefore wrote to the relevant NTRB/NTSP and sought the
assistance of the NTRB/NTSP to obtain that information;
(v)
The NTRB/NTSP advised that person that it had no statutory power to
pierce the corporate veil and suggested that the person seeking the
information write to the directors of the corporation in an attempt to
become a member, something he had earlier attempted to do;
(vi) He did as advised but again his request for the information was refused;
(vii) The NTRB/NTSP then suggested he seek the assistance of ASIC in an
attempt to obtain the information sought;
(viii) He contacted ASIC but ASIC advised that it could not assist as he was
not a member of the corporation;
(ix) He then sought the assistance of FaHCSIA in yet a further attempt to
obtain the information sought;
(x)
FaHCSIA responded by suggesting that he contact the NTRB/NTSP to
obtain the information sought;
(xi) As already noted, the NTRB/NTSP had previously advised of its
inability to assist him and had suggested he contact ASIC.
(xii) It is submitted that such behaviour constituted an abuse of the broader
native title claim group with the “private agent” being a critical player
in facilitating that abuse.
46.
Another example is as follows:
(a)
NTRB/NTSP was the lawyer representing the native title claim group in the
native title determination application and a “private agent” was the lawyer
representing the same group in future act negotiations and other cultural
heritage matters;
(b)
The NTRB/NTSP, in compliance with orders made by the Federal Court
arranged the preparation of a Connection Report;
(c)
That Connection Report was based on credible anthropological and other
expert evidence;
(d)
The Connection Report found that the native title claim group description in
the Form 1 had to be amended so that the native title claim group description
accorded with the findings in that Connection Report;
21
(e)
However, such an amendment of the native title claim group description
would have resulted in one of the people constituting the applicant being
replaced;
(f)
The “private agent” ignored the findings of the Connection Report and
advised the applicant to terminate the services of the NTRB/NTSP and
engage the private practitioner as the lawyer in the native title determination
application;
(g)
The services of the NTRB/NTSP were terminated pursuant to a resolution to
that effect being passed by the five people constituting the applicant in this
native title determination application;
(h)
The NTRB/NTSP concluded that its assessment of its facilitation and
assistance functions pursuant to the NTA did not permit it to fund the private
practitioner in the native title determination application, particularly in view
of the findings in the recently compiled Connection Report;
(i)
Money received from ILUAs and/or other agreements on behalf of the
broader native title claim group was then paid to the “private agent” to pursue
the native title determination application although pursue the native title
determination application even though continuing to pursue the native title
determination application in that form was not consistent with findings of the
recently acquired Connection Report;
(j)
The consequences of this behaviour were that:
(a)
The “private agent” was paid to pursue the native title determination
application that did not accord with the findings in the Connection
Report;
(b)
The fees paid to the “private agent” for providing his services in the
native title determination application were paid out of monies that
should have been available for the benefit of the whole of native title
claim group and were fees that would not have been paid if the services
of the NTRB/NTSP had not been terminated;
(c)
One of the people constituting the applicant should not have even been
a member of the native title claim group if the findings in the
Connection Report had properly been acted upon;
(k)
It is submitted that such behaviour constituted an abuse of the broader native
title claim group with the “private agent” being a critical player in facilitating
that abuse.
22
47.
A further example is as follows:
(a)
A native title claim group was aware of a significant “future act” proposal
within the native title claim group’s area;
(b)
A solicitor became aware of that proposal;
(c)
That “private agent” approached a member of a native title claim group and
suggested, without any basis or foundation, that the financial benefits being
obtained by the relevant NTRB/NTSP were not as great as that which the
“private agent” would secure for the native title claim group and that these
financial benefits would be secured quicker by the “private agent” if the
“private agent” was engaged to carry out the work;
(d)
The “private agent” then facilitated a meeting of the native title claim group;
(e)
At that meeting of the native title claim group, the “private agent” failed to
present all of the relevant facts and deliberately distorted some of those facts
to unfairly put the NTRB/NTSP in a bad light and to make it appear the
“private agent” could achieve more than he knew he could achieve for the
native title claim group;
(f)
Consequently, the native title claim group voted to appoint the “private
agent” to undertake the “future act” negotiations;
(g)
The “future act” negotiations subsequently conducted by the “private agent”
did not appear to result in greater financial benefits or more expeditious
outcomes than would have been achieved by the NTRB/NTSP;
(h)
While the private practitioner received a proportion of the financial benefits,
the native title claim group had been disadvantaged in at least two ways:
(i)
It received less financial benefits than it should have received; and
(ii)
The financial benefits that were paid to the native title claim group
were not structured in such a way as to maximise long term economic
development outcomes to the native title holders;
(i)
This behaviour on the part of the “private agent” was clearly not in the best
interests of the native title claimants/holders and constituted an abuse of the
interests of the native title claimants / holders.
48.
I am also aware that “private agents” have received financial and other benefits via
the following procedures:
(a)
A “private agent” utilised the Corporations Law to incorporated a
corporation which was controlled by persons with a personal interest,
including financial interest, in using the services of the “private agent”;
23
(b)
The use of the Corporations Law meant that the corporation evaded the
scrutiny of the Registrar administering the CATSI Act;
(c)
That corporation received, among other things, native title monies and
cultural heritage payments;
(d)
The constitution of such corporation was deliberately drafted by the “private
agent” to ensure that the power and control of the corporation was in the
hands of a select few people who supported the appointment of the “private
agent” and were also the people constituting the applicant in the native title
determination application;
(e)
Those people constituting the applicant in the native title determination
application were also the directors and the trustees;
(f)
The constitution of the corporation deliberately did not provide a remedy to
members of the native title claim group who are refused membership of the
corporations.
49.
Lawyer-client privilege prevents me from outlining all of the examples of this
problem that I have personally observed. However, the following examples on the
public record are illustrations of the problem:
(a)
A “private agent” managed to continue to represent a claim group in a native
title determination application in the following circumstances:
(i)
The NTRB/NTSP received complaints from some members of the
native title claim group about the manner in which the “private agent”
solicitor was progressing the legal affairs of the native title claim
group;
(ii)
Consequently, the NTRB/NTSP decided to call a meeting of the native
title claim group;
(iii) That native title claim group meeting was widely advertised by the
NTRB/NTSP to be held on 15 June 2013;
(iv) That meeting on 15 June 2013 resolved, among other things, to
terminate the services of the “private agent” solicitor and engage the
services of the NTRB/NTSP;
(v)
The “private agent” solicitor called a further meeting of the native title
claim group in an attempt to overturn the resolution taken on 15 June
2013;
(vi) In letters inviting members of the native title claim group that this
meeting was to be held on 11 July 2013, the following was stated:
24
“Assistance for travel, food and accommodation will be available
at the end of day 1, is as follows:
(g)To each Claim Group member over 18 attending and living
outside (the named town): a total of $1,000.
(h)To each Claim Group member over 18 attending and living in
(the named town): a total of $500.
(i) The assistance will be paid at the meeting.” (emphasis added)
(vii) That letter was sent to 442 members of the claim group;
(viii) However, 543 persons attended the meeting and were paid the
promised payments without the need to produce receipts;
(ix) Evidence of this letter was annexed to an affidavit of the “private
agent” later filed in the Federal Court;
(x)
The meeting called by the “private agent” solicitor was held on 11 July
2013 and it resolved, among other things, to use the services of the
“private agent” solicitor to progress the legal affairs of the claim group;
and
(xi) It has been estimated that this one meeting of the native title claim
group resulted in approximately $500,000.00 of the native title claim
group’s funds being spent.
(b)
The following was said in the Federal Court by representatives of the
claimants in a native title determination application on the day of the
commencement of the hearing of a native title determination application:50
-
“Yes. Well, as it stands, your Honour, we have no legal representation.
We have no money and we have no files. And we seek an adjournment
in this matter because of these things. …… We’ve had a dispute with
(our solicitor) who has withdrawn from the matter and we need an
adjournment to get our money off him and to get other legal
representation. …… Now, (our solicitor) – as I said, we got funding off
– sorry, we got some money off a deal we did with Xstrata, a cultural
heritage agreement. Now, we had to accept what they offered us
because we needed the money for this trial.
Really Xstrata should have paid it a million dollars. They offered us
$225,000 and we accepted that because we needed money for this court
case. We needed $150,000. Now, I went to – we had a meeting with
(our solicitor and barrister) and they were supposed to get – out of the
$150,000 they were supposed to get $30,000 each. The other 80,000 –
another $80,000 was for a QC and $10,000 for witnesses’ fees. Now,
that made up the 150,000. The other $75,000 was supposed to be
transferred to Bidjara’s account. …… we did not know that the funds
were going into his trust account. The funds were supposed to go to
Bidjara. It was an ILUA between Bidjara and Xstrata, so nothing to do
50
Brendan Wyman & Ors on behalf of the Bidjara People #6 v State of Queensland (QUD 216 of 2008)
Transcript of 22 April 2013.
25
with (our solicitor). But, be that as it may, your Honour, (our solicitor)
then contacted me, and contacted the other applicant, and said “we’re
not using a QC. We’re just going to use (the junior barrister)”. We
said, “that is okay. Then, you’ve got $90,000 for all your other costs.
Just transfer the $75,000 to Bidjara’s account, because we’ve got other
accounts to pay”. (Our solicitor) said, “no, I’m not going to do that”.
He said “I’m keeping the whole 225,000”. ……
Now, one of the applicants, Keelen Mailman, spoke to (our solicitor)
and (he) assured her that he would go to transfer the $75,000. He
refused – after that, he refused to do it. Now, (our solicitor) – I said,
“okay, you don’t want to transfer that. You transfer the whole amount
to Bidjara account”. He said, “I’m not going to do that. I’m going to
withdraw from the matter, and I’m going to put a lien over this
money”. I said, “you cannot put a lien over it, because we’ve to no
outstanding accounts with you”. He said, “well, I will withdraw from
the matter”. I said, “well, you go ahead and withdraw. If you want to
threaten that, you go ahead and withdraw”. He withdrew. He said,
“I’m notifying the courts” and he withdrew. …… we gave away a
million dollars with Xstrata, for $225,000 so this court case could go
ahead. (Our solicitor) has all the money in his account. He won’t
release that money to us, and we can’t go ahead with the case, because
we’ve got no legal representation. …… endeavoured in every way to
let this trial go ahead because we would – after $150,000 for the trial,
and we got that off Xstrata by taking a cheaper deal for $225,000.
Then I have allegations made against me here that I sacked (our
solicitor) off both by the State and both by the Brown River People
which is totally incorrect by that message there on the phone where the
– where (our solicitor) pulled the pin. So, you know, your Honour, we
would also like your Honour to make a ruling – we’ve got witnesses to
– expensive – witness expenses. We would like you to make a ruling
that (our solicitor) hand over our $225,000. That’s ..... Bidjara that he
misled us. It was suppose to go in the Bidjara account in the first place
and he misled us.”51 (emphasis added)
(c)
Other representatives of the claimants in a native title determination
application have given evidence in the Federal Court as follows:52
-
“Okay. So you’ve been pretty busy helping prepare this matter with
your father, have you, is that part of why you’ve been so busy? --- With
my father?
Well, your father is now conducting this case isn’t he? --- We just had
two fraudulent solicitors representing us. We paid them over half a
million dollars worth of money and look what they done to us.
Well, again, I ---?--- They’ve done everything to destroy our case. I
think, Mr Robinson, it’s not useful to talk about them here. We’re all
here, and you’re ---?--- Well, I am talking – you just asked me how am
I going to – I’ve been spending time with a mob of idiots who are meant
to be solicitors.”
51
Brendan Wyman & Ors on behalf of the Bidjara People #6 v State of Queensland (QUD 216 of 2008)
Transcript of 22 April 2013 at P-4 L45 – P-5 L5, P-13 LL7-44 and P-22 L36 – P-23 L3.
52
Brendan Wyman & Ors on behalf of the Bidjara People #6 v State of Queensland (QUD 216 of 2008)
Transcript of 22 April 2013 at P-20 LL 43-47.
(d)
26
“I’ve got evidence on my phone that’s showing the dishonesty of (our
solicitor) from a recorded message that took place on my phone which
said that he had a call from Ray Robinson, which is Sugar and that he
has decided to pull the pin, that Trevor Hauff has decided to pull the
pin.”53 (emphasis added)
In another matter, one of the people constituting the applicant spoke of her
relationship with solicitors who were allegedly not acting on the instruction
of the applicant thus:54
-
“11. While I believe that the $200,000 was placed in (the solicitors)
Trust account, I haven’t seen any paper work or other documents that
show this. But at the same time I understand that (the solicitor) has
been doing quite a lot of work for (the claim group) and I think he has
been paid for doing it. I don’t know how much he has been paid for his
legal work. I’ve never been shown any invoices or receipts or any
other documents about how much (the solicitor) has been paid.
12. I was notified by text message to attend an urgent meeting for (the
claim group) Directors to get legal advice on the orders Justice Rares
made on 1 March 2013. The text message was sent to me from
(another person constituting the applicant) on 4 March 2013. The
meeting took place on 10 March 2013 … in Brisbane.
13. At the meeting (the solicitors) spoke to the group, (one of those
solicitors) did most of the talking, he kept on telling the group that we
all had to stick together and we had to pull together for the good of the
group as a whole and get the Judge’s order varied because of the
commercial companies.
14. The meeting had a break so (the solicitors) could speak with just
myself (and other persons constituting the applicant) Bruce [Weribone]
and Jumbo [Leslie Weribone]. (The solicitor) said that if Order 9
stayed that anybody who had received any money from Mandandanji
Limited would come under scrutiny and it could even affect things like
my pension. I am an old lady, my husband recently passed away. I
don’t have much and the thought of losing my pension really worried
me. How would I take care of myself and not become a burden on my
family? (The solicitor) kept on and on about it.
15. Even though I didn’t agree with the resolutions, I gave in and
signed because I felt outnumbered and intimidated.
16. I would never have signed it if I thought it would badly affect (the
NTRB/NTSP), Dolly Clark and the … Native Title Claim. I have been
thinking about what I agreed to and I wish to revoke my agreement. I
want it recorded that I do not support the resolutions that were passed
at the Directors Meeting on 10 March 2013. I want my signature to be
crossed out, I only signed because of felt as though I had to.”
(emphasis added)
53
Brendan Wyman & Ors on behalf of the Bidjara People #6 v State of Queensland (QUD 216 of 2008)
Transcript of 22 April 2013 at P-20 LL43-47.
54
Leslie Weribone & Ors on behalf of the Mandandanji People v State of Queensland (QUD 368 of 2008)
per affidavit of Sarah Trindall filed 15 March 2013 at [11]-[16].
27
(e)
Justice Rares has stated:55
“It is an abuse of the power of people to have rights as an applicant, to
feather their own nests and not be accountable to the people who ……
are their constituency, namely the whole of the group, and this Act is
there for the benefit of the people who have been dispossessed of their
land and their rights and interests by the actions of white settlement, so
that the whole group can benefit, not just individuals who are fortunate
enough to be in a position to negotiate deals that feather their own
nests, including getting their own travel. I’m told the people who – the
old people in Roma couldn’t even get on a bus to take them to a
meeting.” (emphasis added)
50.
Further, the problem sometimes arises in the context of persons constituting the
applicant refusing to accept anthropological advice that does not accord with the
perceived interests of the persons constituting the applicant. This problem has been
touched upon by Rares J thus:56
“And there have been cases I’ve had where there have been 14
anthropological experts brought along, and they’ve never came up with
something that suited the applicants, so they kept sacking them and the case
never went anywhere.”
51.
However, it is incumbent upon all lawyers providing services in the area of native
title to ensure as far as possible that native title claim groups in general, and
applicants in particular, fully understand responsibilities they owe the broader
native title claimants / holders, including the fact that monies held by, or on behalf
of, the native title claimants / holders are monies to be used for the benefit of all
members of the native title claim group and not merely for the benefit of a small
number of members of the native title claim group who happen to constitute the
applicant. Further, such lawyers should ensure as far as possible that such monies
are not spent merely for the benefit of legal, anthropological, financial and dispute
resolution professionals.
52.
I acknowledge that the information outlined in the preceding paragraphs does not
disclose all of the facts that would be needed for a complete picture to be presented.
However, it is submitted that the information outlined in the preceding paragraphs
is illustrative of the serious problems that can arise, and have arisen, from the
behaviour of some “private agents” that need to be addressed.
55
Transcript QUD 366/2008, 01.03.13, P-115 LL 4-11.
Transcript in Leslie Weribone and Others on behalf of the Mandandanji People v State of Queensland
QUD 366/2008, 01.03.13, P-21 LL 27-30.
56
28
CONSEQUENCES
53.
It might be argued that these problems are simply a consequence of the right of the
native title claim group to be able to appoint any practitioner they wish to have act
on their behalf. However, the issue is not that simple. Inappropriate behaviour on
the part of “private agents” can cause significant adverse consequences for the
native title claimant/holder. For example, such behaviour, has the potential to:
(a)
Cause unnecessary complexities in decision-making pertaining to native title
claim business and the authorisation of agreements;
(b)
Result in all of the financial benefits not being made available for the use of
all members of the native title claimants / holders;
(c)
Delay the progress towards a resolution of the native title determination
application;
(d)
Jeopardise the capacity of native title claimant/holder to maximise returns on
their native title rights and interests for economic development because:
(i)
The divisions and confusion created are likely to create uncertainty for
parties wishing to negotiate, and enter deals, with the true native title
holders;
(ii)
Financial benefits should be managed effectively and should lead to
sustained employment and business development opportunities for all
native title holders;
(iii) Compensation benefits provided to native title claimants/holders as a
result of agreements entered into on behalf of all native title
claimants/holders are often significantly eroded by the “private agents”
fees and/or commissions;
(iv) Because parties wishing to negotiate and enter deals with true native
title claimants/holders will require certainty to the effect that the people
they are negotiating with truly have the authority of the true native title
claimants/holders to negotiate and make an agreement that will be
binding on the native title claimants/holders;
(e)
Creates unnecessary challenges and pressures for the NTRBs/NTSPs legal
representatives seeking instructions from their clients on the basis of free,
prior and informed consents; and
(f)
Result in “private agents” receiving financial reward from monies that are
rightfully monies belonging to all persons constituting the native title claim
group but are only accountable to a small group of people, being those who
make up the applicant pursuant to s. 61 of the NTA or are the registered
29
native title claimants pursuant to s. 253 of the NTA.
In contrast,
NTRBs/NTSPS/NTSPs do not charge the claim group for the same services
and are accountable to all the people who hold or may hold native title who,
depending on the evidence, may or may not include the applicant/registered
native title claimants.
54.
Such conduct also has significant implications for the other parties in native title
processes:
(a)
As to the Commonwealth Government:
a. The future act regime was established by the Commonwealth Government
to reflect and implement equality before the law pursuant to the Racial
Discrimination Act 1975 (Cth) and to facilitate the delivery of benefits to
native title holders;
b. The financial costs associated with the additional litigation caused by the
unnecessary disruption of the orderly resolution of native title claims and
agreements is largely borne by the Commonwealth Government because it
is largely the real funder of such litigation;
c. The Commonwealth Government’s broader policy objectives, including
its goals to reduce disadvantages suffered by most Indigenous people in
Australia, are best served by maximising future act benefits to the true
native title claimants/holders;
(b)
The significant legal costs borne by State and Territory Governments and by
industry because of their role in native title is also unnecessarily increased by
these problems;
(c)
Governments and other interested parties may be reluctant to enter into
substantive mediation aimed at reaching a consent determination of native
title;
(d)
There may be similar reluctance to negotiate agreements pursuant to the
NTA’s “future act” provisions.
55.
It is submitted that the need to find solutions must be found to these problems is
patently obvious.
30
NECESSARY REFORMS
56.
I note that the report of the Taxation of Native Title and Traditional Owner Benefits
and Governance Working Group Report to Government57 considered some of the
matters dealt with in this submission and recommended that “(t)he Government
take urgent steps to regulate private agents (persons or firms other than Native
Title Representative Bodies or Native Title Service Providers and/or their legal
representatives) involved in negotiating native title future act arrangements”.
58
However:
(a)
While I agree that urgent steps need to be taken to regulate “private agents”, I
do not believe that such regulation should be restricted to “private agents” but
rather, I believe they should apply equally to NTRBs/NTSPs and/or
professionals employed by them because the recipients of the services of
NTRBs/NTSPs also need protection so as to ensure that persons providing
professional services while in the employ of NTRBs/NTSPs are also acting in
the best interests of their client/s; and
(b)
Similarly, I do not believe that the regulation referred to by the Taxation of
Native Title and Traditional Owner Benefits and Governance Working Group
Report to Government should be restricted to merely those professionals
involved in negotiating native title future act agreements. Rather, I submit
that such protection should be provided in relation to professionals working
throughout the whole of native title processes.
(c)
It is of considerable importance that the issues raised in this submission
should be considered in the knowledge that many of the recipients of services
in the area of native title are vulnerable persons, that is, they are often persons
with very little or no prior experience in dealing with such professionals and
they are often people who, as a result of the circumstances in which they
were raised, have limited education. Further, many of these people have a
history of merely doing what the “white fella” ordered them to do without
questioning the reasons for that order.
57.
The negative impacts caused to the interests of native title claimants / holders by
some “private agents” needs to be minimised and managed as much as possible.
This requires all professional practitioners in native title to:
57
Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to
Government, 1 July 2013, The Treasury, Commonwealth of Australia.
58
Recommendation of Taxation of Native Title and Traditional Owner Benefits and Governance Working
Group, Report to Government, 1 July 2013, The Treasury, Commonwealth of Australia, at page 6.
31
(a)
Have a sufficient understanding of native title law; and
(b)
Be accountable for any unethical behaviour, particularly towards their
Indigenous clients.
58.
As outlined above, I submit that the negative impacts of some “private agents” can
be minimised with, among other things, the adoption of the following reforms:
(a)
The establishment of a national system of registration for all native title
practitioners, including private agents, administered by the NNTT; and/or
(b)
The establishment of a new complaints mechanism whereby complaints
about the professional behaviour of native title practitioners, including
“private agents”, can be and determined by the NNTT; and/or
(c)
A requirement that all monies received by private agents as a result of “future
act” and cultural heritage issues must be held on trust for the benefit of all of
the native title claimants/holders of the land and/or seas in question; and/or
(d)
A requirement that all fees and/or commissions received by private agents in
native title proceedings be placed on a register maintained by the NNTT, and
that register be available for inspection by anyone deemed by the NNTT to
have a genuine interest in such information; and/or
(e)
The clarification of the fiduciary duties owed by professional practitioners in
native title processes;
(f)
The establishment of a fund out of which NTRBs/NTSPSs test cases relating
to the behaviour of “private agents” might be launched; and/or
(g)
The drawing up and introduction of a “Code of Conduct” applicable to all
native title practitioners; and/or
(h)
59.
The availability of “Mandandanji / Rares J” type remedies.
Each of these suggested reforms will now be considered in greater detail.
However, before doing so I again acknowledge that “private agents” can have a
very important role to play in minimising such conflicts if they:
(a)
Put the interests of the native title claimants / holders before their own self
interests, particularly their own financial interests; in ways that are both
ethical and transparent;
(b)
Have no qualms about advising their Indigenous clients of, for example, the
risks associated with litigation (including the risks of not being successful
and of the potential for serious conflicts within the native title claim group
and beyond) and of the advantages of settling out of court (particularly before
32
the full hearing of the native title determination applicant in the Federal
Court); and
(c)
Act at all times in an ethical and transparent manner.
Registration Of Native Title Practitioners
60.
I submit that there is need for the establishment of a system of registration of native
title practitioners and that such system of registration by administered by the
NNTT.
61.
It is submitted that the registration of a native title practitioner should be dependent
upon the native title practitioner:
(a)
Being a “fit and proper person”;59
(b)
Demonstrating appropriate expertise in native title law;
(c)
Having undergone appropriate cultural awareness training; and
(d)
Being committed to an enforceable code of conduct pertaining to native title
practitioners.
62.
I believe that such a scheme is necessary for two main reasons:
(a)
The consumers of the services of professionals in the native title process are
often vulnerable people with special needs and a lack of experience in many
of the issues involved in native title; and
(b)
63.
Native title law can be very complex.
The complexity of native title can be exemplified by the fact that native title
interacts with a great deal of other legislation governing access to land and
resources. For example, apart from the NTA, some of the legislation that determines
the rights of Indigenous people to land and cultural heritage protection in different
States and Territories includes the following:
(a)
Commonwealth:
(i)
Australian Heritage Commission Act 1975;
(ii)
Aboriginal Land Rights (Northern Territory) Act 1976;
(iii) Aboriginal and Torres Strait Islander Heritage Protection act 1984;
59
Having regard to such considerations as whether an applicant is a person of good fame, integrity and
character (the broad principles of integrity, competence, diligence and professionalism have already been
spelt out by the High Court and full Federal Court in a number of cases), and whether any of the following
events has occurred to them in the previous, say, five (5) years such as they have had the status of
undischarged bankruptcy, served a term of imprisonment (whole or part), or convicted of an offence
involving fraud or dishonesty.
33
(iv) Environment Protection and Biodiversity Conservation Act 1999.
(v)
(b)
Protection of Movable Cultural Heritage Act 1986;
New South Wales:
(i)
Aboriginal Land Rights Act 1983;
(ii)
Heritage Act 1977;
(iii) National Parks and Wildlife Act 1974.
(c)
Victoria:
(i)
Aboriginal Heritage Act 2006;
(ii)
Aboriginal Lands Act 1970;
(iii) Aboriginal Lands Act 1991;
(iv) Traditional Owner Settlement Act 2010.
(d)
Queensland:
(i)
Aboriginal Cultural Heritage Act 2003;
(ii)
Aboriginal Land Act 1991;
(iii) Aborigines and Torres Strait Islanders (Land Holding) Act;
(iv) Cape York Peninsula Heritage Act 2007;
(v)
Community Services (Aborigines) Act 1984;
(vi) Community Services (Torres Strait Islander) Act 1984;
(vii) Land Act 1994;
(viii) Nature Conservation Act 1992;
(ix) Torres Strait Islander Land Act 1991;
(x)
(e)
(f)
Wild Rivers Act 2005.
South Australia:
(i)
Maralinga Tjaruta Land Rights Act 1984;
(ii)
Pitjantjatjara Land Rights Act 1981.
Western Australia:
(i)
Aboriginal Affairs Planning Authority Act 1972;
(ii)
Aboriginal Heritage Act 1972;
(iii) Land Administration Act 1977.
(g)
Tasmania:
(i)
(h)
Aboriginal Lands Act 1995;
Northern Territory:
(i)
Northern Territory Aboriginal Sacred Sites Act 1989;
(ii)
Pastoral Land Act 1992.
34
64.
It is also the case that legal expertise does not necessarily connote any
understanding of Indigenous cultural mores. For example, anthropologist Peter
Sutton has characterised “the native title industry” as a “factor propelling many
cleanskin legal professionals … into contact with Indigenous people and cultures
for the first time.”60
65.
Further, “private agents” and those employed by NTRBs/NTSPs should be aware
of the need to keep the cultural sensitivities of its clients in mind. For example,
Merkel J has stated:61
“Plainly, it was appropriate for the assessment tram to have regard to the cultural
sensitivities of the applicant group in carrying out its assessment functions. Indeed,
basic principles of fairness would require that it do so. In stating that conclusion I
am not suggesting that different or diluted rules or principles of natural justice
apply in such situations. Rather in such situations the principles of fairness simply
require that the rules or principles be applied in a manner which ensures that the
matters that are required to be raised and addressed are raised and addressed in
an appropriate and culturally sensitive manner.” (emphasis added).
66.
The native title registration scheme I envisage as being appropriate would be
similar to that currently applying to migration work and in the area of mediations /
alternative dispute resolution.
67.
The scheme relating to the registration and monitoring of the behaviour of
registered migration agents includes the following:
(a)
“Immigration assistance” can only be given by person who is a registered as
a migration agent;62
(b)
“Immigration assistance” is broadly defined to include the use, or purported
use, of knowledge and experience in migration procedure to assist a visa
applicant to prepare a visa application or to prepare for proceedings before a
court or review authority in relation to a visa application;63
(c)
60
The authority is appointed by the relevant minister;64
Peter Sutton, The Politics of Suffering: Indigenous Australia and the End of the Liberal Consensus,
(Melbourne University Press, 2009) 154.
61
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait
Islander Affairs [2000] FCA 113 at [77]; see also Mashayekhi v Minister for Immigration and
Multicultural Affairs (2000) 97 FCR 381 per Merkel J at [11]-[16].
62
Migration Act, s. 280.
63
Migration Act, s. 276.
64
Migration Act, s.275 and 315.
35
(d)
The functions of that authority include the monitoring of the conduct of
registered agents in providing immigration assistance and the taking of
disciplinary action against registered migration agents where appropriate;65
(e)
More particularly, the authority has power to discipline registered migration
agents;66
(f)
The authority may discipline a registered migration agent (including
suspending or cancelling the registered migration agent’s registration) if it is
satisfied, among other things, that the registered migration agent is not a fit
and proper person to give immigration assistance.67
68.
Mediators have also been required to be accredited as mediators for some time.
69.
The costs associated with such a registration scheme for native title practitioners
could be offset at least in part by the imposition of a registration fee.
70.
Such a system of registration of native title practitioners would have the obvious
advantages of better protecting the interests of the recipients of such services. This
can only be a good thing, especially as the recipients of such services are often
vulnerable people with little experience in the area of native title or any similar area
of endeavour.
Establishment Of A New Complaints Regime
71.
It is submitted that there should be established a new complaints regime whereby
complaints about the professional behaviour of native title practitioners, including
“private agents”, can be determined by the NNTT.
72.
There can be little doubt that the current complaints procedure is ineffective. The
problems caused by a small number of “private agents” are likely to be reduced if
such “private agents” were threatened by an effective complaints procedure. I
submit that part of the reason for the present problems caused by “private agents” is
that those “private agents” are aware that the current complaints procedure is
incapable of truly disciplining “private agents” who engage in inappropriate
behaviour.
65
Migration Act, s. 316(1)(b) and (d).
Particularly, pursuant to Migration Act, ss. 300-305.
67
Migration Act, s.303.
66
36
73.
I submit that the advantages of the disciplining of practitioners by an authority such
as the NNTT which is very experienced in native title matters would far outweigh
any disadvantages and could, in fact, save the government money over time
because such a registration system should result in the removal of practitioners do
not have the required skills in this area of the law, an in-depth understanding of
native title law and procedures, (including a detailed appreciation of the
circumstances in which such services are provided and the peculiar vulnerability of
many of the people who received such services). I submit that the Legal Services
Commissioners operating in Australia do not possess such knowledge, mainly
because they do not have the necessary experience in native title.
74.
An advantage of the NNTT undertaking this disciplinary role is that it could have
jurisdiction over all native title practitioners whether they be lawyers,
anthropologists, financial service providers or the providers of other professional
services to native title clients.
75.
I acknowledge that while a similar regime is utilised for “registered migration
agents”, the number of registered migration agents in migration law is considerably
larger than in the context of native title law. However, I submit that the number of
native title practitioners is of sufficient numbers to justify the introduction of such a
scheme.
76.
However, if it is considered to be inappropriate for the NNTT to be involved in the
disciplining of native title professionals, I submit that the established Legal
Services Commission should be better equipped so that they can improve their
regulation of legal practitioners working in native title. They might do this by
seeking assistance / input from native title legal practitioners when investigating
complaints about legal practitioners performing native title work.
Payment Of Money Into Trust
77.
It is submitted that there would be considerable benefits in requiring that all monies
received by any person as a result of “future act” and cultural heritage issues must
be held on trust for the benefit of all of those persons ultimately determined to be
the true native title holders unless the whole of the native title claim group
otherwise determines. That is, a trust would require all future act monies to be held
37
on trust until the true native title holders are determined unless the whole of the
native title claim group determines otherwise.
78.
The effect of such a trust could only be a good thing because the requirement for
the establishment of such a trust would include the requirement that future act
monies would be held for the benefit of all of the native title claimants / holders.
The regulation of the proceeds of future acts and cultural heritage matters in this
way would result in the disappearance of many intra-Indigenous disputes because
the cause of many such disputes, money, would not be available unless specifically
determined by the whole of the native title claim group.
79.
Because people constituting the native title applicant sometimes defy resolutions of
the claim whole of the native title group relating to the claim group description and
because people constituting the native title applicant sometimes use funds obtained
from future act and/or cultural heritage matters in ways not approved by the whole
of the native title claim group (for example, by engaging “private agents” in ways
that would not be approved by a fully informed native title claim group that was
given the opportunity to determine if the engagement of the “private agents” was in
their best interests), the requirement that future act and cultural heritage matters be
paid into a trust would have obvious benefits for the native title claimants/holders.
80.
Amendments could be made to the NTA to ensure that such money received from
future act or cultural heritage issues (but not including income received from
personal exertion) could be classified as something like a “native title benefit” and
then be required to be held on trust for the benefit of all those ultimately
determined to be the native title holders unless the native title claim group
otherwise determined.
81.
That would in effect create a statutory trust in favour of all native title holders and
allow some transparency as to the way financial benefits rightfully belonging to all
of the relevant native title claimants/holders are dealt with. This would prevent the
practice of forming corporations that do not allow average members of the relevant
native title claim group to have a say in how these finances should be spent until
some time in the future and it would also prevent persons comprising the applicant
being the sole directors and thereby unanswerable to all native title
claimants/holders.
38
82.
The preservation of money that rightfully belongs to the native title
claimants/holders from “private agents” is particularly important during the native
title determination application proceedings because it is at this point that unethical
practitioners become interested in offering their services because it is at this point
that the assistance / co-operation of only a very small number of members of the
native title claimants/holders is all that is required to gain access to what are often
very large sums of money.
83.
The regulation of monies in this manner is likely to remove much of the problem of
the unethical “private agent” because such “private agents” are unlikely to offer
their services if there are not large sums of money available for the payment of fees
and/or commissions.
84.
I acknowledge that this option clashes with the concept of the free market and full
freedom of choice by the applicant in the native title determination application.
However, that is a small price to pay if it protects the interests of the native title
claimants/holders.
Fees/Commissions Register Held by NNTT
85.
It is submitted that all practitioners in the field of native title should be required to
place on a register maintained by the NNTT all of the fees and/or commissions
received as a result of carrying out work in the field of native title. It is further
submitted that such register should be available for public inspection by anyone
deemed by the NNTT to have a genuine interest in such information.
86.
Some of the problems presently encountered in native title and referred to above
arise as a result of the “private agents” having an overriding desire to make money
without having any great concern for the interest of the native title claimant /
holders. Consequently, there is at least the potential (even if it is not already
occurring, something that I have been unable to ascertain) for the “private agent” to
charge more fees and/or commissions than is reasonable in the circumstances. I
believe that the requirement for all fees and/or commissions received by
professional practitioners in the area of native title to be placed on a register would
have a number of benefits, including the fact that the “private agent” would know
that there is the real potential for the amount of money involved in such fees and/or
39
commissions to be known by more than the small number of persons than is often
the case presently, and, additionally, it would hopefully mean that any native title
claimant / holder with an interest in knowing how much is being paid to the
“private agent” by way of fees and/or commissions could have a means to obtain
such information.
87.
The reason I suggest that any such register be maintained by the NNTT is that it is
obviously a body with a real understanding of native title and, additionally, it
already maintains registers for a number of other matters.
88.
I have submitted that it would be appropriate for such a register to be able to be
inspected by anyone deemed by the NNTT to have a genuine interest in such
information.
This is because I believe that such information should not be
available to the world at large but should be restricted to any native title claimant /
holder with a genuine interest in such matters. The NNTT is in an ideal position to
determine whether the person making the request for access to the register is a
native title claimant / holder with a genuine interest in obtaining that information.
89.
I believe that a requirement that the fees and commissions paid to all native title
practitioners should be disclosable to all interested native title claimants / holders
along with the reasons for the payment of such fees and commissions would have
the effect of providing a great deal of protection of the financial interests of the
native title claimants/holders. In reality, the only loser in such a scheme would be
the “private agent” who has something to hide.
Clarification of Fiduciary Duties
90.
In certain circumstances there is presently some doubt as to the fiduciary duties
owed in certain circumstances by some participants in the native title processes.
Such uncertainty often surrounds the fiduciary duties owed by the applicant in the
native title determination application.
91.
The role of the applicant in native title proceedings is a central role in the native
title claim process. The applicant in the native title claim process exercises
significant powers, including the power to deal with all matters arising under the
NTA in relation to the native title determination application. However, nowhere is
40
it spelt out how the powers exercised by applicants in such proceedings are to be
exercised.
92.
There is no doubt that the applicant in a native title determination application,
whether as individuals or collectively, must fulfil the duties of a fiduciary (or, put
another way, those people constituting the applicant in a native title determination
application owe a fiduciary duty to the broader claim group). This is because the
person/s constituting the applicant are entrusted with certain powers and
responsibilities for the benefit of the whole claim group with the result that such
person/s is under a general equitable obligation to act in the best interests of the
whole claim group when exercising those powers and responsibilities. Hence, in
Weribone on behalf of the Mandandanji People v Station of Queensland68 Rares J
stated:69
“60. Ordinarily, intra-mural disputes involving issues as to whether internal
processes have been observed in claim group decision-making or internal
disputes within a claim group, will be resolved in accordance with a process
under s 251B, as Mansfield J explained in his lucid exposition of the
principles in Starkey v South Australia (2011) 193 FCR 450. The current
dispute is of a different character. French, Finn and Hely JJ remarked in
Davidson v Fesl [2005] FCAFC 183 at [25] the definition of the claim group
is of great importance. In that case, there were serious disagreements
concerning the identification of the claim group. Their Honours said:
“While the identification of the claim group is so constrained and contentious
it is difficult to see how the question of authorisation, which is dependent
upon that definition, can ever satisfactorily be resolved.”
61. The authorisation of an applicant to make a native title application and
to deal with matters arising in relation to it under s 251B has hallmarks of a
fiduciary relationship. In John Alexander’s Clubs Pty Ltd v White City
Tennis Club Ltd (2010) 241 CLR 1 at 34–35 [87] (and see too at 34–36 [86]–
[92]) French CJ, Gummow, Hayne, Crennan and Kiefel JJ approved the
identification by Mason J in Hospital Products Ltd v United States Surgical
Corp (1984) 156 CLR 41 at 96–97 of:
“the critical feature of what may be called the accepted traditional
categories of fiduciary relationship — trustee-beneficiary, agentprincipal, solicitor-client, employee-employer, director-company, and
partners inter se. That critical feature was “that the fiduciary
undertakes or agrees to act for or on behalf of or in the interests of
another person in the exercise of a power or discretion which will
affect the interests of that other person in a legal or practical sense”.
From this power or discretion comes the duty to exercise it in the
interests of the person to whom it is owed.” (footnotes omitted; their
Honours’ emphasis)
68
69
[2013] FCA 255.
At [60]-[62].
41
62. And, as McHugh, Gummow, Hayne and Callinan JJ held in Pilmer v
Duke Group Ltd (In Liq) (2001) 207 CLR 165 at 197–198 [74], 199 [78]–
[79], unless the fiduciary has the informed consent of the person to whom
such a duty is owed, he, she or it has a duty first, not to obtain any
unauthorised benefit from the relationship and, secondly, not to be in a
position where the interests or duties of the fiduciary conflict, or there is a
real or substantial possibility they may conflict, with the interests of the
person to whom the duty is owed. Once again it is not necessary to explore
further in these reasons whether or how such obligations apply here, beyond
recognising that there is a real possibility that they may.”
93.
Rares J has posed the question as to why applicants do not owe fiduciary
obligations:70
“HIS HONOUR: Well, I think Ms Mailman’s affidavit of September 2011
complained that she didn’t have, you know, very much information about
Dolly Clark and there wasn’t even a connection report or somebody said that
– I can’t remember who – at the meeting. So I’m being asked to vote on
something and even if they turn up there’s not a connection report, it’s Dr
Morton telling them, and that’s all well and good, but I’m just wondering
what the minimum content of what you have to tell people when you’re going
to change – ask them to vote on changing something as fundamental as who
might be people who can participate in this proceeding.
…
HIS HONOUR: In a corporate context you would never get away with this.
…
HIS HONOUR: It would just be set aside because just putting an ad in the
paper like this wouldn’t give you sufficient notice of what it was and why it
was being – and the applicant – that is the people who are proposing the
change if as it was here – the applicant in the proceedings would have a –
director has got a fiduciary duty that – obviously the people in the applicant
aren’t fiduciaries, but there’s a – it’s an odd relationship because they get –
as I mentioned in the beginning they get all these rights to do things involving
property that is a communal property, namely the rights to negotiate … and
to deal with third parties and to run these proceedings as they choose, and
yet the law is very silent about what duties they owe to this group and to the
community who they say is this group and I – why aren’t they like directors?
Why haven’t they got fiduciary obligations to their group?” (emphasis
added)
94.
It appears uncontroversial that the person/s constituting the applicant in a native
title determination application has an obligation to genuinely attempt to resolve
disputes within the native title claim group. For example:
(a)
70
Reeves J has stated:71
Leslie Weribone and Others on behalf of the Mandandanji People v State of Queensland QUD 366/2008,
transcript 28.02.13 at P-58 LL 5-31.
71
Russell Doctor & Ors on behalf of the Bigambul People v State of Queensland (QUD 101 of 2009),
transcript 4 April 2012, P-7 LL 4-13.
42
“If one of the reps is saying that it’s not going to be resolved. I’ve
already stated this as strongly as I can on the last occasion. What the
obligations – and not just the lawyers, but the parties involved are, in
relation to the resolution of this dispute. It’s incumbent upon then as
parties before this court to try and resolve this issue. But it seems that,
despite the attempts made before that hearing and since that hearing,
they’ve both taken an obstinate position. I’m not reflecting on any one
in particular, but the situation that is – that applies – where two
warring groups within an indigenous community are causing this
situation. It’s unfortunate.”
(b)
Rares J has also stated:72
“That tends to leave out of account the fiduciary obligation of the
people who constitute the applicant. I mean, it doesn’t seem to me that
the Native Title Act intended to say that the applicant who was
authorised by the meeting got rights to benefit the individual members
of the applicant that they weren’t accountable for as fiduciaries to the
group, and if --- one of those rights is to take up under the Cultural
Heritage Act from the status of being an applicant under the Native
Title Act. There are real – I mean, obviously nobody – I haven’t had a
legal argument about all this, but it strikes me as having the plainest of
day fiduciary obligations sticking straight out of it, the whole group –
they owe their position and their rights to their status from the
authorisation and the authorisation, at least in this case, didn’t allow
them to benefit themselves.”
95.
The power provided by the NTA to persons negotiating ILUAs on behalf of all
persons who may or actually hold native title is a fiduciary power that must be
exercised in the interests of and for the benefit of that wide class.73 Hence, Rares J
has stated:74
“45. It can hardly have been the intention of the Parliament that persons
who were simply claimants be able to use their mere and contestable status to
enrich themselves to a substantive and permanent extent at the expense of the
true native title holders. Such a construction would be in the teeth of the
object and purpose of the Act in ss 3 and 4(1). It would defeat the important
consideration which the Parliament recognised in the following paragraph in
the Preamble to the Act:
It is particularly important to ensure that native title holders are now
able to enjoy fully their rights and interests. Their rights and interests
under the common law of Australia need to be significantly
supplemented. In future, acts that affect native title should only be
able to be validly done if, typically, they can also be done to
72
Leslie Weribone and Others on behalf of the Mandandanji People v State of Queensland (QUD
366/2008), transcript of 15.03.13, P-24 LL 29-44.
73
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 per Rares J at
[60]-[62]; Weribone on behalf of the Mandandanji People (No 2) [2013] FCA 485 per Rares J at [44].
74
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 per Rares J at
[60]-[62]; Weribone on behalf of the Mandandanji People (No 2) [2013] FCA 485 per Rares J at [45]-[46].
43
freehold land and if, whenever appropriate, every reasonable effort
has been made to secure the agreement of the native title holders
through a special right to negotiate. It is also important that the
broader Australian community be provided with certainty that such
acts may be validly done. (emphasis added)
46. A trustee is entitled to be indemnified and exonerated out of the trust
assets, and to that extent has a beneficial interest in it: Chief Commissioner
of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 246–247 [48]–[51]
per Gleeson CJ, Toohey, Gaudron, McHugh and Gummow JJ. Although the
role of an applicant or claimant who negotiates an ILUA or s 31 agreement
is not that of a trustee for a reward, it involves the duty to act on behalf of not
only the claim group which that party represents but also all the persons who
hold native title. It may be that, in the final result, that party will be found
not to hold any native title. The Act contemplates that the party’s work
involved in the negotiation, and the potential compromise of rights or
interests that the party claimed in good faith cannot be left uncompensated.
Thus, subject to observing the fiduciary duties the party owes to the true
native title holders, it is entitled to bargain for and obtain an appropriate and
reasonable benefit in all the circumstances which can be enjoyed pending the
result of the final hearing.”
96.
It is submitted that the advisers to a fiduciary should ensure that the fiduciary is
aware of his/her fiduciary duties. Such advisers include lawyers, whether they be
lawyers, NTRBs/NTSPs or “private agents”, employed by representative bodies. In
this regard, Reeves J has stated:
97.
(a)
“……(I)t’s incumbent upon the lawyers involved to explain to the clients, to
their clients, that they’ve got an obligation to sort out what are essentially
internal Aboriginal matters of culture and custom…… This court is the most
inappropriate general institution to sort out those issues and the Aboriginal
people concerned should sort it out”75
(b)
“(The barrister has) an obligation and your instructors have an obligation to
tell your clients that they are obligated, they’re duty bound under the Federal
Court of Australia Act and the whole thrust of the Native Title Act is that they
should move heaven and earth to sort this out between themselves.”76
I submit that there can be no doubt that there is a need for the fiduciary duties that
arise in the context of native title proceedings should be better spelt out in the NTA.
Hence, I agree with the following sentiments expressed by the Taxation of Native
Title and Traditional Owner Benefits and Governance Working Group:77
75
Russell Doctor & Ors on behalf of the Bigambul People v State of Queensland (QUD 101 of 2009),
transcript 8 February 2012, P-41 LL 13-21.
76
Russell Doctor & Ors on behalf of the Bigambul People v State of Queensland (QUD 101 of 2009),
transcript 8 February 2012, P-42 LL 24-30.
77
Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to
Government, 1 July 2013, The Treasury, Commonwealth of Australia, page 19.
44
“The Working Group considers that urgent steps should be taken to clarify
that the native title group is the beneficial owner of funds generated by native
title agreements, irrespective of the identity of the legal owner or possessor of
those proceeds, and that the named applicant is in a fiduciary relationship
with the group. The Working Group considers amendments to the Native
Title Act or the relevant regulations are required to achieve this outcome.
The Working Group is aware that there is ongoing litigation relating to the
existence of a fiduciary duty under the current operation of the Native Title
Act. This litigation raises complex legal and practical issues, including how
such a fiduciary duty would interact with the future acts regime (particularly
given the future acts regime is designed to enable registered native title
claimants and proponents to negotiate about their interests prior to any
determination of native title which recognises the ultimate native title
holders). In addition public consultation has commenced on draft terms of
reference for an Australian Law Reform Commission (ALRC) inquiry which
cover the authorisation and joinder provisions of the Native Title Act and
related issues such a fiduciary duty.
Recommendation
The Government take urgent steps to amend the Native Title Act or the
relevant regulations to clarify that the native title holding community is the
beneficial owner of funds generated by native title agreements, irrespective of
the identity of the legal owner or possessor of those proceeds, and that the
named applicant is in a fiduciary relationship to their native title holding
group.”
Test Case Fund
98.
It is submitted that there would be a great benefit in the establishment of a fund
which might be accessed in appropriate circumstances by an NTRBs/NTSPs to
launch a test case if a professional practitioner in the area of native title is engaging
in conduct which the NTRB/NTSP believes is of doubtful appropriateness.
99.
An example of the use of such a fund might be where a private lawyer was known
to be using the funds of the native title claimant / holder to call a meeting to
overturn a decision taken by that native title claimant / holder to terminate the
services of that private lawyer. The relevant NTRB might use funds from that fund
to test the legality of the behaviour of that “private agent”.
100. Similarly, the fund might be used by a NTRB to institute proceedings to test
whether the “private agent” is breaching/has breached the fiduciary duties he owes
the native title claimant/holder.
45
101. However, I believe there should be safeguards against the inappropriate use of such
fund. Such safeguards might be that the NTRB is required to obtain the permission
of FaHCSIA to institute such proceedings via the use of the fund.
Code of Conduct
102. It is submitted that there would be great benefit in the composition of a Code of
Conduct applicable to all professional practitioners operating in the field of native
title. Such Code of Conduct would outline with as much precision as is possible
what would constitute appropriate and inappropriate conduct in most circumstances
that arise in the field of native title practice and that are peculiar to practising in
native title.
103. It is not envisaged that any such Code of Conduct would go into details that would
apply in any particular area of a professional practitioner’s work. Put another way,
it is intended that such a code would only deal with matters that arise specifically in
the area of native title.
Availability of “Mandandanji / Rares J” Type Orders
104. Many of the intra-Indigenous disputes referred to above arise as a result of the
availability to native title claimants/holders of large sums of money and the desire
of a small number of members of the native title claimants/holders to control such
funds without the need for accountability to all of the native title claimants/holders.
One possible method of overcoming some of these problems is for the NTA to spell
out the availability of orders of the type made by Rares J in Leslie Weribone & Ors
on behalf of the Mandandanji People v State of Queensland.78
105. In two decisions in Weribone on behalf of the Mandandanji People v State of
Queensland79 Rares J:
(a)
Expressed concerns about the lack of accountability in respect of claim group
monies; and
(b)
Subsequently made orders protecting such monies pending the resolution of
the issues in that case.
78
[2013] FCA 225 and [2013] FCA 485.
Weirbone on behalf of the Mandandanji People v State of Queensland [2013] FCA 225 and Weirbone on
behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485.
79
46
106. Before turning to this decision I acknowledge that these orders of Rares J were:
(a)
The subject of much debate as to whether he possessed the powers to make
such orders; and
(b)
The subject of an appeal that did not proceed.
107. However, I submit that the intention behind those orders is something that should
be pursued and should be spelt out in the NTA as orders that should be available to
the Federal Court in appropriate circumstances and where the appropriate evidence
is placed before the Federal Court.
108. Rares J made the orders in question in the context of considering two competing
“s.66B” applications. He began the hearing80 by indicating to the protagonists in the
“s.66B” applications that, irrespective of how he ultimately decided the “s.66B”
applications, he was minded to make orders protecting claim group monies pending
the final determination of the native title determination application:81
(a)
“HIS HONOUR: Yes. Thank you. Well, now, before you all start. One thing
that occurs to me is that whatever resolution I come to on which of the two
competing claimants should be, if either of them, made the applicant, there’s
a real issue as to what the claim group is, whether they have a right to each
side , the anthropological evidence is there’s real issues as to whether there’s
a correction identification of who it is that has got this claim, and whoever I
make the applicant will get certain rights under the Act to negotiate and deal
with things like ILUAs and money.
I think I should make an order until further order or final hearing, any ILUAs
and any money under the control of the court and nothing is to be paid or
used until the court resolves who the real claim group is and who the people
are who have these rights, because it seems to me that once we have an
applicant who can take control of the ILUA process and the money that
comes from it, other people who at the final hearing may be legitimately
entitled to that money will not be allowed to access it because it will have all
been spent under the control of others and I don’t think that, given that
there’s a serious anthropological issue about who people are that are the
relevant groups, that should happen.
The court is being asked to give its imprimatur to allow people to control the
proceedings and to get the rights that that control gives under the Act and in
relation to third party actions and it seems to me I should protect whatever
the status that group gets from being misused if it turns out they’re not the
real people that are entitled at the final hearing. So I would like people to
give some thought to that and to let me know, but I don’t see any reason why,
given there is a real issue that is to be tried on the anthropological evidence
before me as to who is entitled, I shouldn’t protect these interests of the
people who are ultimately to benefit from a finding of native title from the
fruits of whatever status of being made the applicant in these proceedings is
80
81
On 28 February 2013.
Transcript QUD 366/2008, 28.02.13, P-2 L26 to P-3 L9.
47
going to bring people temporarily until a final resolution of the proceedings.
You might like to think about it but at the moment, I’m minded to do that at
the end of this hearing, whatever I decided.” (emphasis added)82
(b)
“HIS HONOUR: And, so far as (people with the status of an applicant under
the NTA) deals with money or ability to negotiate ILUAs, or to control
already negotiates ILUAs, I should protect that pending the final outcome of
the series dispute about whether they are correctly described as the claim
group. Because that’s a matter for a trial.
……
HIS HONOUR: Who runs the action, and who gets the benefit of – and that’s
why I’ve raised this issue about having an injunction to control this until – I
mean, it may be that if – there is some reason to – that money needs to be
spent, or whatever, ILUAs need to be negotiated, well, court can control that.
But at the moment, this is a completely un-transparent process that allows
whoever has got control of a claim group to go off and do whatever they like.
And then you’ve got a serious fight about who should be the claim group.
That seems to me be a recipe for people to advantage themselves by
succeeding on a procedural motion, with being able to obtain rights that are
unexaminable anywhere, and to use those rights involving sometimes many
tens of millions of dollars to their own advantage, without ever accounting to
anybody for it. Because if the case is discontinued, you can’t undo the
ILUAs, and the court has got no control over it. But I’ve got control at this
moment, saying who has got the right to have that status, and when I give
them that right, I can control who they use it for the time being.”83 (emphasis
added)
109. As to the context in which the orders were made by Rares J:
(a)
The solicitor for one of the “s.66B” applicants informed the Court that
$200,000 of the money in question had been paid into his firm’s trust
account;84
(b)
Rares J made it clear that he was granting an injunction because there was a
live issue between two groups who were competing to be recognised as the
applicant in the native title determination application:85
“HIS HONOUR: I am not in any sense blinkered by the idea that there
isn’t a live question. I came on the bench telling you there was one and
that’s why I should grant an application. I know there’s a live
question.” (emphasis added)
82
Transcript QUD 366/2008, 28.02.13, P-2 L26 to P-3 L9.
Transcript QUD 366/2008, 28.02.13, P-9, LL 7-15 and P-9 L 45 to P-10 L 11.
84
Transcript QUD 366/2008, 15.03.13, P-36 L 30 to P-37 L 2.
85
Transcript QUD 366/2008, 28.02.13, P-26 LL9-11.
83
48
(c)
Rares J expressed frustration at some of the behaviour that had been taking
place:
(i)
“…… I’m told the old people and the people with young children and
the like who couldn’t come to the meeting because of the separation of
Roma and Toowoomba because there’s no money for it – other people
are getting money to go and travel, accommodation, and the like. This
is just outrageous. How? How can this be right? This – the people
whose claim it is are not allowed to come along to meetings because
there’s no money, and other people are apparently allowed to keep
money – get money from sources I’ve got no idea about. What’s going
on?”86 (emphasis added)
(ii)
“…… I want to know why people are getting paid money and are
looking after money when I’m told that there’s no money to help the
very claim group get to a meeting to know what their case is all
about.”87 (emphasis added)
(iii) “I think what’s being put is, there’s no – at the moment you can’t follow
what happens to the money. It’s not said that anybody has done
anything improper, but we at the moment just can’t work out
transparently where it has gone, and one reason, a perfectly sensible
reason is, as you are saying, you just got all the documents together,
you’ve given them to the court so that you – very quickly, nobody has
had any attention drawn to this as being something that may need an
explanation, and it may well have, as you say, a perfectly good
explanation.”88 (emphasis added)
(d)
Rares J stated that some behaviour constitutes an abuse:89
“It is an abuse of the power of people to have rights as an applicant, to
feather their own nests and not be accountable to the people who ……
are their constituency, namely the whole of the group, and this Act is
there for the benefit of the people who have been dispossessed of their
land and their rights and interests by the actions of white settlement, so
that the whole group can benefit, not just individuals who are fortunate
enough to be in a position to negotiate deals that feather their own
nests, including getting their own travel. I’m told the people who – the
old people in Roma couldn’t even get on a bus to take them to a
meeting.” (emphasis added)
(e)
Rares J spoke of the need for accountability and transparency:
(i)
86
“Why does it go to anybody and why should they not be accounting for
money they get in their status as members of the applicant group to
attend things that - this was all something that has got to be
transparent. The native title claim group is entitled to know, and the
Transcript QUD 366/2008, 01.03.13, P-113 LL 36-44.
Transcript QUD 366/2008, 01.03.13, P-114 LL 1-3.
88
Transcript QUD 366/2008, 15.03.13, P-35 LL 16-24.
89
Transcript QUD 366/2008, 01.03.13, P-115 LL 4-11.
87
49
court is entitled to know, what goes on …… I mean, I can’t believe
it.”90 (emphasis added)
(ii)
“If this is being done because people have got status under this Act
through making a claim for native title, then as far as I’m concerned,
I’m going to see the court controlling that and making sure whoever
gets this money accounts for it publically and transparently, because
rorting this system has gone on through the community for much too
long, and it’s time people realised that when they’re making native title
applications they’re not doing it to feather their own nests, they’re
doing it to benefit the whole of the group and the community is entitled
to know what the money is and where it’s going, and I’m not going to
have some secret deals done on the side that benefit particular people
protected from public scrutiny and supervision by the court.”91
(emphasis added)
(iii) “MR NEAL: …… I don’t know if my junior know, anything about
ILUAs, existing contractual arrangements.
HIS HONOUR: Exactly, That’s the point. I don’t know either and the
people who are the people who are intended by this Act to benefit from
that don’t know either and that’s why the court has to take control of
this because if it doesn’t, who knows what’s going to happen to this
money, particularly when there’s nobody in control of the applicant.”92
(emphasis added) (Mr Neal being the silk appearing for one of the
“s.66B” applicants)
(f)
Rares J made it clear he was most interested in protecting the rights and
interests of the true holders of the native title:
(i)
“There is a real potential for prejudice to be done to the true holders of
native title by delay or uncertainty in the period before the Court can
make a determination under s.225. Native title rights and interests can
be exploited, dissipated and extinguished by acts that are deemed valid
by s.24EB(2).”93 (emphasis added)
(ii)
“I just want to make sure that whatever is there is caught by order so
that the court has control of it, particularly when there’s no one in
control of the applicant. What I don’t know and nobody else knows;
what is going on?”94
(iii) “I can protect the rights and interests of the claim group and the benefit
that the Act gives the claim group that’s what I intend to do, and I have
got powers under – inherent powers under section 22 of the Federal
Court of Australia Act to make all orders that are necessary to deal
with all issues in dispute and to protect they property in the meantime
until somebody is entitled to it and has had that approved by the court
in a process that is transparent and accountable.”95 (emphasis added)
90
Transcript QUD 366/2008, 01.03.13, P-113 LL 31-35.
Transcript QUD 366/2008, 01.03.13, P-114 LL 30-39.
92
Transcript QUD 366/2008, 01.03.13, P-116 LL 30-37.
93
Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485 per Rares
J at [39].
94
Transcript QUD 366/2008, 01.03.13, P-115 LL 16-20.
95
Transcript QUD 366/2008, 01.03.13, P-116 LL 4-9.
91
50
(iv) “So by all means persuade me that something is wrong with these
orders that’s not going to protect the people who are entitled under the
Act to have their native title rights and interests given to them when the
court makes a final determination and transfers hopefully the benefit to
all these ILUAs and moneys into either a trust corporation or some
other organisation that the court determines, by consent order after a
final hearing, the appropriate people to get it to benefit the claim
group.”96 (emphasis added)
(v)
“…… If Queensland South said, as they said, “We don’t have the
money to provide transport,” then it’s bleatingly obviously that a
trustee that does have 2 million-plus dollars sitting in a bank account
might use that money to benefit the people whose claim group might be
adversely affected by the conduct of a meeting admitting people who
they didn’t want to have at the meeting and who couldn’t afford to go to
Toowoomba from Roma and other areas in the claim group area to
attend that meeting and look after their interests. And I’m sorry, I don’t
see how anybody who was a trustee of that organisation id it was
operating in accordance with its objects could have avoided taking a
decision with 2 million-plus dollars in the bank to use about a very
small proportion of that, maybe 1000 or a couple of thousand dollars,
to get people bussed down to the meeting and, if need be, stay over
night.”
110. At the commencement of the hearing, Rares J outlined that the form of orders he
sought were as follows:97
96
(a)
“…… what would be of some assistance is overnight if you can, Ms Webb
and Mr Neal, discuss the terms of – and holding an injunction that I can
grant about all these ILUAs and the money that might be held at the moment
by the dysfunctional applicant, depending on what I decide about who gets
what. You should be able to agree, at least, about that; that the money go to,
hopefully, an interest bearing trust account that’s under the control of the
court and that all the future ILUA activities are also dealt with in the case
management conference under the control of the court and it won’t – no
ILAUs will be … then till I approve the terms of them …… So that I can make
sure whoever is going to be prejudiced by whatever I do has, at least, had an
opportunity to be protected from something happening that they can’t control
or know about otherwise.” (emphasis added)
(b)
“… it seems to me if everybody got round a table and worked out a way to
ensure that the money clearly was being spent appropriately, that there was
some accounting and transparency that the court would have control over,
and that there would be moneys available for the charitable purposes that the
company is set up for – Mandandanji Limited – and the trust, then I’m sure
that something can be worked out that’s very appropriate. But the situation
that faced me on 1 March was that there was dysfunction and there were
moneys around that needed to be looked after.”98 (emphasis added)
Transcript QUD 366/2008, 01.03.13, P-116 L 47 to P117 L6.
Transcript QUD 366/2008, 28.02.13, P-41 L34 – P-4 L1.
98
Transcript QUD 366/2008, 15.03.13, P-19 L46 to P-20 L 6.
97
51
111. However, Rares J made it clear that application could be made to vary the orders:
(a)
“…… I’m perfectly happy to – and there clearly should be an order that
anybody who is adversely affected by this can make application to vacate or
discharge these orders. That’s obviously necessary so that if there is an
unintended consequence that some innocent third party is affected by this and
can’t do things, they can obviously make an application. That’s only just and
fair …”99 (emphasis added)
(b)
“…… if they want to come along and say, “This order shouldn’t be made
against me,” I can hear it on a substantive interlocutory application. They
can show that these orders are much too wide and shouldn’t be applied to
them or whatever they want to argue. That’s fine.”100 (emphasis added)
(c)
“……I made orders on 1 March which bind at the moment. Then the parties
were trying to refine them in a way that was appropriate and then there was
an email sent to my associate that suggested that there was $1.2 million to be
paid that there was uncertainty about, and other issues, and I made some
directions to try and find out what those issues were so that people could
come along and say how they were affected if – adversely by the orders that I
have already made but which people are trying to refine so that they don’t
adversely affect people.”101 (emphasis added)
(d)
“I make an order that, certainly, Santos and Mailman and Binge applicants
and anyone else who wishes should go to a mediation with the Registrar to
try and work out how to make amendments to these orders to deal with the
situation about the businesses. And if that fails, then you can come back and
put on proper evidence about what all these agreements are and how they’re
impacted and how it all should be fixed up and propose some draft orders to
vary them.”102 (emphasis added)
112. Rares J indicated that he was keen not to interfere with bona fide business:
(a)
He was at pains to ensure as far as possible that the Orders were as restrictive
as possible:
(i) “… it’s not my intention, it’s not the intention of the orders to shut down
bona fides activities of supporting local employment and local business
by the native title claim group and others who are entitled to those things.
And if the ---.”103 (emphasis added)
(ii) “--- it’s not intended to shut business down or to stop the beneficial
purposes of employment – appropriate employment for indigenous people
and the offering of opportunities for them to have a better life. That’s –
there’s no need for that to happen under the orders but, as I say, a
charitable company with an object to promote the benefit of these people
didn’t do what one would have thought was the first thing any charity
should have done, ensure that all the people with an interest in
understanding who the claim group might be and what might happen to it
were able to attend a meeting.”104 (emphasis added)
99
Transcript QUD 366/2008, 01.03.13, P-116 LL 37-41.
Transcript QUD 366/2008, 01.03.13, P-117 LL 26-29.
101
Transcript QUD 366/2008, 15.03.13, P-3 LL 1-7.
102
Transcript QUD 366/2008, 15.03.13, P-37 LL 36-45.
103
Transcript QUD 366/2008, 15.03.13, P-17 LL 6-9.
104
Transcript QUD 366/2008, 15.03.13, P-14 L 10 – 22.
100
52
(b)
He also made it clear that he was prepared to respect confidentiality: 105
“…… the court is able to make an order about retaining commercial
confidentiality …… Those powers are contained in, I think section 33
something or other, some whole new section of sections that have been
added to the Act recently about – sorry. Yes. I think it’s thirty – section
37AE to AJ, so …… So if you can satisfy those provisions, you can get
a confidentiality order for whatever material might be confidential.”106
(emphasis added)
113. However, Rares J flagged the need for relevant agreements to be disclosed to the
Court should there be an application to vary the orders: 107
(a)
“Well, I’m not asking you that at the moment but I’m saying to you, if you
want to get these orders varied, than I’m going to have to see what these
agreements say and be shown why and how they need to be varied, that’s all.
I’m not going to just do it ---.”(emphasis added)
114. It is submitted that it is also of some significance that Rares J made it clear he was
not just concerned about events in the Mandandanji claim:
(a)
“…… we don’t know what’s going on and that’s the problem in these
cases.”108 (emphasis added)
(b)
“I’m just going to let this case go the way other native title cases have gone
where all these – I’ve got evidence that there are, you know, tens of
agreements out there where people are getting paid millions of dollars and
saying, “The case is over by those agreements are going to stay in place”,
and everybody just keeps on handling the money and getting the benefit of the
money.”109
115. It is acknowledged that care would need to be exercised when spelling out the
potential scope of such orders and the circumstances in which such orders could be
made. However, such skills are possessed by parliamentary draftspeople.
CONCLUSION
116. It is submitted that inappropriate conduct on the part of professional practitioners
operating in the area of native title should not be permitted to reduce the potential
for the system of native title law in Australia to remedy some of the past
inequitable behaviour that has occurred to Indigenous people in Australia over the
last 225 years. Such practitioners should be legally obliged to place the interests of
105
Transcript QUD 366/2008, 15.03.13, P-39 LL 1-18.
Transcript QUD 366/2008, 15.03.13, P-39 LL 1-18.
107
Transcript QUD 366/2008, 15.03.13, P-38 LL21-25.
108
Transcript QUD 366/2008, 01.03.13, P-116 LL 41-42.
109
Transcript QUD 366/2008, 24.04.03, P-11 LL 25-29.
106
53
the native title claimant / holders before their own interests. If they fail to do so
they should be made to account.
117. Hence, it is submitted that the delivery of legal, anthropological, financial and
dispute resolution services in the area of native title by professional practitioners
should be better regulated so as to ensure the protection of the native title
claimants/holders, particularly in the case of “private agents” (that is, particularly
professional practitioners who are not directly engaged by NTRBs/NTSPs).
118. Further, I submit that there is no reason why “private agents” providing services to
native title claimants/holders should not be subject to the same standards and
obligations as set down for NTRBs/NTSPs under the NTA.
119. Finally, it is submitted that the matters outlined in this submission highlight that
there is a need to improve native title processes so that they better meet the intent
of the NTA as spelt out in the Preamble of the NTA, namely:
“to rectify the consequences of the past injustices … to ensure that
Aboriginal people and Torres Strait Islanders receive the full recognition and
status within the Australian nation to which history, their prior rights and
interests, and their rich and diverse culture, fully entitle them to aspire.”
I advise that I intend to email a copy of this submission to the Law Council of
Australia,
the
NNTT,
the
National
Native
Title
Council
and
to
the
15 NNRBs/NTSPs throughout Australia to give those bodies an opportunity to
comment upon matters dealt with herein should they so wish.
Further, I invite the Native Title Review Team to feel free to contact me should
there be any questions relating to any of the issues dealt with in this submission.
Yours faithfully
DAN O’GORMAN
Chambers
23.09.13