Mediation in the Land and Resources Tribunal

What is the Tribunal’s mediation jurisdiction?

The Tribunal (LRT) has significant mediation jurisdiction in relation to all matters that come before it. Under the Land and Resources Tribunal Act 1999, the Tribunal has (for exercising its jurisdiction) all the powers of the Supreme Court (1). This includes the power to order parties to mediate a proceeding that is before the Tribunal. Whilst mediation will not always be ordered, the Tribunal will explore the potential for mediation to assist in resolving matters in dispute before it. The Presiding Members of the Tribunal consider the use of alternative dispute resolution procedures, such as mediation, is consistent with the Tribunal's statutory obligation to "act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it" (2). Mediations may be conducted by LRT Presiding Members or by mediators appointed by it. If an LRT Presiding Member conducts a mediation, that Presiding Member cannot subsequently hear the matter if it is not disposed of at mediation (3).

The Tribunal also has specific mediation jurisdiction in relation to native title and environmental issues. With respect to native title matters, the Tribunal has jurisdiction to mediate negotiations between the applicant, the registered native title parties and the State with respect to all mining tenements, other than low impact tenures (4) (the "right to negotiate procedures"). The request for mediation can be made to the Tribunal at any time before a negotiated agreement is reached or the application for the tenement has been referred to the Tribunal (5). The parties to Indigenous Land Use Agreements may also confer jurisdiction on the Tribunal to mediate matters that arise under those agreements (6).

With respect to environmental issues, the Tribunal has jurisdiction to mediate (7) and disputes about the environmental authorities proposed to be issued in relation to mining claims and mining leases (8). As with the right to negotiate procedures, these disputes can be referred to the Tribunal for mediation prior to the environmental authority otherwise coming before the Tribunal. It also has jurisdiction to mediate disputes about certain administrative decisions by the Environmental Protection Agency (9).

What are the Tribunal’s objectives for Mediation

The Tribunal’s objectives for mediation are to:

• promote enduring resolution of disputes;

• facilitate parties resolving disputes themselves;

• reduce the number of disputes or the scope of disputes that require adjudication by the Tribunal;

• contribute to efficient case management of Tribunal matters, by integrating mediation within Tribunal procedures;

• achieve a high level of satisfaction by parties about Tribunal procedures;

• achieve a high level of awareness by parties of the nature and processes for mediation in the Tribunal.

Who will conduct the mediations?

Each of the Presiding Members is trained and experienced in mediation as are a number of the Tribunal staff. The Land and Resources Tribunal Act 1999 provides for a Mediation Referee to be appointed who is legally qualified and has a high level of experience or knowledge of matters such as dispute resolution, mediation and land title and land use issues. The Mediation Referee has not yet been appointed. His/her duties will include conducting mediations and managing the Tribunal’s mediation service.

The Tribunal also refers matters to the Alternative Dispute Resolution Branch of the Department of Justice and Attorney-General (the ADR Branch). A number of significant disputes have already been resolved with the assistance of their highly skilled mediators.

What are the Tribunal's current mediation projects?

The Tribunal has instigated or is participating in 3 projects regarding mediation:

• Ongoing development of ADR Branch Mediators

The Tribunal has been encouraged by the successful involvement of mediators engaged by the ADR Branch. Members of the Tribunal are involved in ongoing training and development of mediators engaged by the Branch to undertake mediations for the Tribunal.

• Training Indigenous Mediators

In conjunction with the ADR Branch, the Tribunal will train a pool of regionally based indigenous mediators to be available for Tribunal mediations.

• Evaluation of mediation in the Tribunal

The Tribunal is implementing an evaluation project:

• To obtain an independent assessment of mediations in the LRT that addresses the topics outlined above. That assessment should contain recommendations for any changes to or refinements of the Tribunal's approach to mediation.

• To implement a system to capture relevant data for the evaluation and which will be suitable for ongoing monitoring by the LRT post evaluation.

• To publish the results of the evaluation in an appropriate forum, to encourage public discussion of the use of mediation in this jurisdiction.

Specific inquiries about mediation may be made to the Registrar or Senior Case Manager of the Tribunal on (07) 3406 7777 or Freecall 1800 300 014.

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