Australian Local Government Association

Issues paper No.2

Financial assistance by the Attorney-General in Native Title cases

Ed Wensing FAPI MPIA
November 1999

Background

Under the Native Title Act 1993 (Cth), the Commonwealth Attorney-General is able to grant financial assistance to persons and/or organisations involved in responding to applications for a determination of native title. This includes Local Government.

As a consequence of the amendments to the Native Title Act 1993 (Cth) that came into effect on 30 September 1998, the guidelines for the granting of financial assistance in native title cases have been amended. Revised guidelines became effective from 30 November 1998. Under the guidelines, persons, including Local Government, responding to native title claims will be eligible for the same financial assistance as claimants thus ensuring a level playing field.

Persons or organisations that are a party, or intend to be a party, to an inquiry, mediation or proceeding related to native title may apply for financial assistance from the Commonwealth Attorney-General.

Financial assistance is also available to a person or organisation seeking to negotiate an Indigenous land use agreement, or in relation to any inquiry, mediation or proceeding in relation to the agreement. This includes assistance to resolve a dispute about rights of access for traditional activities.

Under the Native Title Act 1993 (Cth), the Attorney-General no longer provides financial assistance for Native Title claimants. Claimants must now apply for assistance from Native Title Representative Bodies or ATSIC. Financial assistance only covers respondents to native title claims, which includes Indigenous and non-Indigenous respondents.

There are three different Schemes under which financial assistance may be available. The nature of the assistance required will determine which Scheme applies. The Schemes are:

• Section 183 Native Title Act 1993 (Cth)
• Special Circumstances (Native Title) Scheme
• Common Law (Native Title) Scheme

Councils and local government associations are potentially eligible for grants of financial assistance under any of the three Schemes

For assistance to be approved, it is necessary to show that:

• the applicant is not eligible for assistance from any other source;
• the provision of assistance is in accordance with the guidelines approved by the Attorney-General; and
• it is reasonable that the application for assistance be granted.

Guidelines

New guidelines have been approved by the Attorney-General in relation to applications for financial assistance for native title matters. These guidelines came into effect on 30 November 1998.

One of the key features of the new guidelines is that assistance is now available to a person or organisation for mediation of native title matters and for negotiation of Indigenous land use agreements.

Other key features are:

• Assisted parties are no longer required to make their own contributions.
• The 'hardship' test has been removed from the Act.

Group applications

• Incorporated and unincorporated bodies (including local government) and groups of persons with similar interests in a matter are eligible for assistance under the new guidelines.
• Group representation of persons or bodies with similar interests is encouraged.
• Where applicants apply as a group, assistance may be provided to one of those parties as the agent or representative of persons who are parties to the matter. Peak bodies or organisations, including local government, may act as a representative and receive funding accordingly.

Assistance through legal and non-legal professionals

• Representation by non-lawyers is encouraged in appropriate circumstances. For example, during mediation processes.
• Legal and non-legal practitioners must be members of the panel, which is to be established by the Attorney-General. This will be an identified group that understands the unique nature of native title casework and will undertake the work in accordance with the guidelines.

Litigation

• The prospects of success will be relevant when financial assistance is sought in relation to litigation.

Terms of Grants of Financial Assistance

• The amount of assistance has been fixed at 100% of the Federal Court scale or, where appropriate, fee packages or lump sums.

Indemnity for costs

• In exceptional circumstances, consideration may be given to providing assistance to cover costs that may be awarded against a legally assisted person.

Scope

Financial assistance is available for litigation, Indigenous land use agreements, mediation and obtaining legal advice. It may cover all or some costs of:

• Legal and other professional costs
• Counsel's fees
• Court fees
• Expert fees, eg. Anthropological
• Reasonable accommodation and travelling expenses; and
• Other reasonable disbursements.

Conditions

The Commonwealth Attorney-General has determined conditions upon which a grant of assistance may be made. They are as follows:

• Retrospective claims for financial assistance will not be authorised. Applicants must apply before legal or related services are provided or before any proceedings commence.
• Generally all legal and associated costs will be covered. An applicant will not be reimbursed for lost earnings or time spent in dealing with the claim or preparing a case.
• Assistance will usually be provided in stages. At the end of each stage, it will be considered whether it is reasonable to continue providing assistance.
• A group representative, for example a local government association or council, may be able to obtain financial assistance in administering claims and providing general advice and assistance to their members in relation to specific native title claims. This might include direct costs such as printing, telephone and facsimile.
• Financial assistance can be provided through persons/bodies other than lawyers.
• Legal Professional fees are paid at rates approved by the Attorney-General. These rates are set out at section 8 of the guidelines.

The Schemes

There are three Schemes under which financial assistance can be provided.

a. s183 Native Title Act 1993 (Cth)

Any person who is a party or who intends to be a party to an inquiry, mediation or proceeding related to native title may apply to the Attorney-General for financial assistance under this section.

Financial assistance is also available for negotiation, mediation or proceedings relating to, and resolution of, an Indigenous land use agreement.

In determining whether assistance should be granted, the Attorney-General will consider the following:

• that the applicant is not eligible for assistance from any other source
• that the provision of assistance is in accordance with the guidelines; and
• in all the circumstances, it is reasonable that the application be granted.

Appropriate weight will be given to all the considerations according to the circumstances of the case.

Assistance is not available to applicants who have access to assistance from any other source. Where an applicant may be eligible for assistance from another source, application should be made to that source.

In assessing whether it is reasonable that an application be granted, a range of factors are considered. Some factors include: the severity and extent of the implications of the native title claim for the applicant; whether the applicant has a genuine interest in the claim process; whether the benefit to the applicant is worth the cost of the case; and the benefit the parties will gain from an agreement or mediated outcome.

In appropriate circumstances, the Attorney-General will look at an applicant's financial circumstances in assessing whether or not the application is reasonable. Regard is had to any detriment that the applicant may suffer if assistance is refused.

b. Special Circumstances (Native Title) Scheme

Under this Scheme, assistance may be available to persons involved in a native title matter that does not come within section 183. The application must be considered reasonable in all the circumstances.

Regard is had to the same requirements as for section 183 when determining whether financial assistance should be granted.

c. Common Law (Native Title) Scheme

Where a common law native title claim has been commenced, assistance may also be available to respondents involved.

Again, the same considerations apply when determining whether or not to authorise financial assistance for a common law application. That is, the applicant's eligibility for funding from other sources and whether it is reasonable for the application to be granted.

How to Apply

The applicant or their agent or the solicitor handling the matter must complete an application form. Application forms are available from the Commonwealth Attorney-General's Department.

In respect of individual applications, the applicant will need to provide the following information:

• a submission with details of the case and the work to be undertaken;
• a financial statement with details of income, assets and liabilities;
• details of the proposed arrangements for the representation, including all names of parties who are to assist the applicant (eg, mediator, anthropologist)
• details of all costs and the method of calculation

In respect of group applications, there is no need for individual application forms to be completed. With the exception of a financial statement, the group representative or solicitor will need to provide the Attorney-General with the same information as for an individual application.

All applications for assistance must be lodged with:

Assistant Secretary
Legal Assistance Branch
Attorney-General's Department
National Circuit
Barton ACT 2600

All telephone inquiries should be directed to (02) 6250 6770