What mediation can encompass
The purpose of mediation, outlined in section 86A of the Act, is to assist parties to reach agreements in relation to the area under application on, first, whether native title exists or existed, and if so, who holds native title, the nature, extent and manner of exercise of rights and interests, the nature and extent of any other rights and interests in the area and their relationship to each other, as well as whether native title includes rights of possession, occupation and use. Where compensation might be involved, for example in relation to compulsory acquisition by a government, mediation agreements may also include the amount and kind of compensation and related matters.
Mediation meetings are informal and usually occur on or near the area of the application. While representatives are allowed, parties are encouraged to speak for themselves. Mediation is not like a Court process; people are not required to present evidence. Instead, mediation involves open and frank discussion of the parties own and each other's interests.
The possibilities for agreement are not limited in scope and may involve very local issues or broad regional issues. They may involve government or they may be more specific agreements between parties dealing with each other at a community level. Agreements resulting from the mediation process can be referred to the Federal Court and may form the basis of a determination of native title. Also, if after three months an agreement has not been reached, any party can apply to stop mediation and allow the Federal Court to determine the issues.
Keywords: Federal Court of Australia, mediation, native title, Native Title Act (1993), 1993
Author: Strelein, Lisa