Principal Solicitor Michael Pagsanjan is now on the Federal Court list of Native Title Mediators.
Mediations of native title claims are often conducted by Federal Court Registrars. However, there can be a need to refer mediations to external practitioners. Michael’s inclusion on the list allows the Federal Court to engage Michael as an external mediator, where appropriate and subject to conflicts of interest.
Native title mediation is unique for several reasons:
- First, the law is extremely complex. For example, in Wilson v Anderson (2002) 213 CLR 401 at 453 , Kirby J correctly observed in relation to the validation regime, “[The Native Title Act is an] impenetrable jungle … overgrown by even denser foliage.”
- Second, native title mediation is often conducted where there are significant cultural concerns which must be managed, and also where there may be underlying social issues, including intramural politics, that substantially influence Indigenous parties outside of the formal mediation process.
- Third, native title matters are often resource and time poor. For example, Native Title Representative Bodies and Service Providers face funding challenges. Equally, native title matters are notoriously and unnecessarily long, and this creates significant uncertainty for respondent parties.
- Fourth, native title matters are not as simple as a once-off commercial transaction between two parties. Rather, native title is sui generis, and accordingly requires consideration and understanding of things beyond that required in other mediations. Any dispute resolution process in native title must therefore look to the longer-term relationships of the parties.
Mediation can be particularly helpful in native title claims by ensuring that the parties have full control of any agreed outcomes, in a culturally safe environment while taking into account commercial realities.
Mediators must be neutral and should have necessary qualifications and experience. The list of appropriately qualified native title mediators was reviewed and updated by the Federal Court in May 2017.
Michael is one of two South Australians included on the current list.