Part 5: National Native Title Tribunal Report
Federal Court of Australia Annual Report 2013-2014
OVERVIEW OF THE TRIBUNAL
The Native Title Act 1993 (Cth) (the Act) establishes the National Native Title Tribunal (Tribunal) as an independent body with a wide range of functions. The Preamble to the Act describes it as a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders (Indigenous Australians). The Act is also intended to advance the process of reconciliation among all Australians.
The Act creates an Australia-wide native title scheme, the objectives of which include:
(a) to provide for the recognition and protection of native title
(b) to establish a mechanism for determining claims to native title
(c) to establish ways in which future dealings affecting native title (future acts) may proceed.
The Act provides that the Tribunal must carry out its functions in a fair, just, economical, informal and prompt way. In carrying out those functions, the Tribunal may take account of the cultural and customary concerns of Indigenous Australians.
FUNCTIONS AND POWERS
Under the Act the Tribunal, comprising the President and Members, has specific functions in relation to:
- upon referral by the Federal Court of Australia (Federal Court), mediating in native title proceedings
- arbitrating objections to the expedited procedure in the future act scheme
- mediating in relation to certain proposed future acts on areas where native title exists or might exist
- where parties cannot agree, arbitrating applications for a determination of whether a future act can be undertaken and, if so, whether any conditions will apply
- assisting people to negotiate Indigenous Land Use Agreements (ILUAs), and helping to resolve any objections to registration of area or alternative procedure ILUAs
- assisting with negotiations to settle applications that relate to native title, and with statutory access agreement negotiations
- providing assistance under s 203BK of the Act to representative bodies in performing their dispute resolution functions
- reconsidering decisions of the Native Title Registrar (Registrar), or of the Registrar’s delegate, not to accept a native title determination application (claimant application) for registration
- upon referral by the Federal Court, conducting reviews on whether there are native title rights and interests
- conducting native title application inquiries as directed by the Federal Court
- conducting special inquiries under Ministerial direction.
The President may delegate to a Member or Members all or any of the President’s powers
under the Act, and may arrange through the Registrar of the Federal Court (Federal Court Registrar) for the engagement of consultants in relation to any assistance, mediation or review
that the Tribunal provides.
The President is responsible for managing the administrative affairs of the Tribunal with the assistance of the Federal Court Registrar, who is empowered by the Act to delegate his responsibilities under laws including the Act, the Public Service Act 1999 and the Financial Management and Accountability Act 1997 to the Registrar, Deputy Registrars and staff assisting the Tribunal. The President may direct the Federal Court Registrar regarding the exercise of his power to assist the President in managing the administrative affairs of the Tribunal.
The Act gives the Registrar specific responsibilities, including:
- assisting people to prepare applications and to help them, at any stage of a proceeding, in matters relating to the proceeding
- help other people, at any stage of a proceeding, in matters relating to the proceeding
- considering claimant applications for the purposes of registering those applications which meet prescribed statutory conditions on the Register of Native Title Claims
- giving notice of applications to individuals, organisations, governments and the public in accordance with the Act
- registering ILUAs that meet the registration requirements of the Act
- maintaining the Register of Native Title Claims, the National Native Title Register (the register of determinations of native title) and the Register of Indigenous Land Use Agreements.
The Registrar may delegate to the Deputy Registrars, or to the members of the staff assisting the Tribunal, all or any of the Registrar’s powers. The President may direct the Registrar regarding the exercise of the Registrar’s powers to conduct certain searches and to keep and make available public records and information.
THE PRESIDENT, MEMBERS AND THE NATIVE TITLE REGISTRAR
Members of the Tribunal are appointed by the Governor-General for specific terms of not longer than five years. The Act sets out the qualifications for membership and defines members’ responsibilities. The Act also prescribes the conditions of appointment and the responsibilities of the Registrar.
Mr James McNamara was appointed a full-time member of the Tribunal for a five-year term on 31 March 2014; Registrar Stephanie Fryer-Smith was reappointed for one year and her renewed term ends on 19 October 2014. The position of Native Title Registrar was advertised nationally at the end of June 2014.
The table below outlines the terms of the Tribunal’s current statutory office-holders.
|Raelene Webb QC||President||1 April 2013||Five years||Perth|
|Helen Shurven||Member||Reappointed |
29 November 2012
|Dr Valerie Cooms||Member||4 February 2013||Five Years||Brisbane|
|James McNamara||Member||31 March 2014||Five years||Brisbane|
|Registrar||Reappointed from |
20 October 2013 to
19 October 2014
The members and staff of the Tribunal were deeply saddened by the untimely passing of Member Daniel O’Dea on 27 August 2013.
The Tribunal provides services and native title assistance in all Australian States and Territories from offices in Perth, Sydney, Melbourne, Brisbane and Cairns.
The offices of the President and the Registrar are currently located in Perth.
THE YEAR IN REVIEW
20-YEAR ANNIVERSARY, 1 JANUARY 2014
The Tribunal commenced operations in Sydney on 1 January 1994, but subsequently its Principal Registry was established in Perth. The date 1 January 2014 marked 20 years of operation for the Tribunal and a number of events around the country were held to mark this milestone.
The Chief Justice of the High Court of Australia, the Hon Robert French AC addressed all members and staff in a national videoconference held on 18 December 2013. His Honour, who was the President of the Tribunal for five years during the period 1994 to 1999, noted the changing role of the Tribunal within the native title system during its history to date.
The early years saw the Tribunal manage substantial parts of the native title process, and in the first five years of its operation the Tribunal had control over native title proceedings until such time as the Tribunal sought consent orders or, where agreement could not be reached, a determination from the Federal Court. Significant events within this period included the first mainland consent determination relating to the claim of the Dunghutti People in New South Wales, and the landmark consent determination at Hopevale, North Queensland.
Following a decision of the Full Court of the Federal Court in Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 which held that aspects of the original scheme of the Act were invalid, the Native Title Amendment Act 1998 shifted the responsibility for making determinations of native title and compensation to the Federal Court, while the Tribunal had power to make determinations about whether certain future acts could be done and whether certain agreements concerning native title were covered by the Act as well as undertaking mediation in native title matters. The 1998 amendments also introduced the registration test for claimant applications, the application of which resulted in
a reduction in the amount of overlapping claims, and the combination, removal or dismissal of many claims.
The effect of those amendments and subsequent judicial decisions established a strict legal framework in which native title was to be determined. In this environment, agreement making has often been the preferred way to resolve native title issues. Through mediation, the Tribunal has assisted parties to build relationships, develop a wider understanding of and respect for different people’s links to land and resolve issues.
Recent years have seen the increasing use of Indigenous Land Use Agreements (ILUAs). The Tribunal’s assistance to parties negotiating ILUAs has brought about enduring agreements, with many ILUAs linked to determinations that native title exists, while others have been made and are made before native title has been proved to exist.
In 2007 and again in 2009 further, far-reaching amendments were made to the Act. Key changes in the amending legislation, in both cases, related to the discharge of the claimant application mediation function.
On 1 July 2012, the Federal Court assumed responsibility for the corporate administration of the Tribunal, with funding for the Tribunal now contained within a dedicated sub-programme of the Federal Court. The Tribunal and the Federal Court entered into a Memorandum of Understanding which preserves the operational independence of the Tribunal.
Amendments to the Act which came into effect in March 2013 gave legislative effect to the Machinery of Government changes which had occurred administratively in the Tribunal and Federal Court the previous year.
Vision: shared country, shared future
In September 2013 the President articulated a new Vision for the Tribunal, Shared country, shared future. This Vision encompasses the President’s vision of an organisation which:
- solves problems, working towards a Shared country, shared future for all Australians – an organisation which looks for ways to do and to achieve things
- is outward looking and expansive in its thinking
- focuses on developing its staff and members, creating succession plans and career pathways
- motivates individuals and teams to strive for innovative and ground-breaking solutions that enhance the way we do things and create opportunities for growth
- is collegiate, and in which genuine respect for others – internally and externally – is always shown.
The President’s vision is for a Tribunal of excellence, with three broad dimensions:
- predictable, just decisions
- delivery of a fair and efficient dispute resolution service.
The President’s vision is also one where professionalism is evident in all of the Tribunal’s work – where all members and staff are, and are seen to be:
- have integrity
- showing respect for others
In April 2014 the President announced that she would lead a steering committee to undertake an organisational review, which is intended to revitalise and re-energise the Tribunal; to have skilled people performing at the best of their ability; and to build the reputation of the Tribunal. Consultants Growth Partners International were retained and consulted widely with staff and external stakeholders. The review continued during the reporting period with recommendations expected to be presented early in July 2014.
Client and stakeholder engagement
A key strategic priority during the reporting period was to engage as fully as possible with clients and stakeholders in order to provide maximum support and assistance to participants in the native title system.
The President delivered a number of conference papers and participated in other presentations including:
- Indigenous Sea Rights – the Grotius Heritage, The Annual Richard Cooper Memorial Lecture
- Agreement making in Indigenous contexts, World Indigenous Legal Conference
- Mining, native title and the impacts on Indigenous Australians: when the mining stops, Environmental Law conference.
A full list of those papers and presentations is annexed to this report.
During the reporting period Member Helen Shurven gave a number of presentations, including Future Act Determinations, Consent Determinations, and Mediation to the North Queensland Land Council. Member Dr Valerie Cooms co-presented in the Partnerships for Managing Country: ILUAs session at the annual Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) native title conference. Among a number of other external engagements, Member James McNamara addressed an Indigenous community meeting in Western Australia on the Native Title Legal Framework.
An important aspect of the Tribunal’s client engagement has been to build the capacity of clients to be effective participants in native title processes. During the reporting period Tribunal capacity-building took a variety of forms including:
- the establishment by Geospatial Services of its own data download page, and increasing the availability of geospatial data through Open Geospatial Consortium, the release of a new Determined Outcomes dataset and by implementing an ‘open data’ policy
- the conduct by the Perth and Brisbane Offices of Future Act Workshops for clients, supported by law firm King & Wood Mallesons
- the development by Geospatial Services in conjunction with the Sydney Office, the Federal Court, the State of New South Wales and the representative body, of a new mapping product. This product has been designed for one particular native title claimant application with a view to it being utilised for all matters in New South Wales which, it is anticipated, will progress to consent determination.
- an ILUA Resources Project, the aim of which was to produce plain English fact sheets in relation to ILUAs, with a particular focus on agreement making, the authorisation process making an application for registration, objections and registration. These fact sheets are available to the public through the website http://www.nntt.gov.au/News-and-Publications/Pages/Forms-and-Publications.
In September 2013 a redevelopment of the Tribunal’s website commenced, with a launch of the new website scheduled for July 2014. The principal aims of the website redevelopment were to upgrade the Tribunal’s website to the Sharepoint 2010 operating system, to improve website navigation and content and to commence the development of a range of online services.
The upgrade to the Sharepoint 2010 system will ensure the future compatibility of the Tribunal’s website with the Federal Court’s IT operating system, as well as provide a suitable platform for the delivery of online services. As part of the redevelopment, a new design for the website was created, and the structure of the website revised to improve navigation and to place greater focus on the work and functions of the Tribunal and Registrar. The process included revision of the content of all web pages and publications to ensure they contain up to date information relevant to key clients and stakeholders. A number of significant new information products were developed as part of the revision of content, such as the production of the twelve new ILUA fact sheets noted above.
The website redevelopment project represents the first phase in the Tribunal’s development of online services. New features that have been developed include online access to the National Native Title Register and the Register of Native Title Claims (the Register of Indigenous Land Use Agreements was already accessible online), improved search pages for native title applications and future act applications, and up to date statistics on native title applications and processes. The development of additional online services will occur through a separate phase of the website project to be commenced in the 2014–15 financial year.
The Operations Section conducted an audit to streamline the Tribunal’s Policies and Procedures Library (an electronic library of documents). All documents were reviewed, revised and consolidated where appropriate and in some instances removed and archived. The audit resulted in the reduction of more than 600 documents to approximately 300. This project remains on foot, with a view to further reducing the number of documents in the Policies and Procedures Library.
An audit and cataloguing of 279 research reports was also undertaken during the reporting period. Those reports had been produced by Tribunal research officers during the first sixteen years of the Tribunal’s operation.
The Tribunal continues to deliver a range of diversity initiatives. In the reporting period these included:
- The Indigenous Advisory Group: The Tribunal’s Indigenous Advisory Group (IAG) is convened by the Registrar and comprises Aboriginal and Torres Strait Islander staff of the Tribunal and of the Federal Court. Member Dr Valerie Cooms also participates in IAG meetings. During 2013–14 the IAG met quarterly via teleconference. Members also met in Brisbane for a two-day workshop in June 2014. The IAG provides advice to the Tribunal’s Executive on policy issues as they relate to Indigenous staff members and is an important reference point for a broad range of matters within the Tribunal.
- The Reconciliation Action Plan 2013–15: During the reporting period the Tribunal reviewed its Reconciliation Action Plan 2013–15 (RAP) as part of the activities which had been undertaken at the IAG Workshop in March 2013. The RAP, which was approved by Reconciliation Australia on 8 July 2013, establishes a range of actions supported by measurable targets to enhance relationships and cultural understanding and to foster respect for Aboriginal and Torres Strait Islander peoples. Another key focus of the RAP is to provide development and professional opportunities for Indigenous staff members. An annual review of the RAP benchmarks the Tribunal’s achievements towards its specific objectives as well as the broader goal of reconciliation. In the annual review process IAG members identify opportunities and risks as well as achievements, and these will inform a review of the RAP in 2015.
- Staff in each Tribunal office engaged in specially-tailored, cross-cultural ‘immersion’ experiences, each of which was conducted by Indigenous Australians and sought to impart knowledge and enhance cross-cultural understanding and competence.
THE WORK OF THE TRIBUNAL IN 2013–14
Note: the information below provides a general outline of the work of the various offices and sections during the reporting period. Detailed information about statutory functions and trends, together with quantitative data for deliverables achieved by the Tribunal and the Registrar respectively, is set out on pages 66–71.
Perth Office: the management of future act work across the country was consolidated in the Perth Office during the reporting period, with a view to increasing national consistency in approach. Claims and ILUA Unit staff processed new and amended native title determination applications, ILUAs, provided extensive assistance and conducted several capacity-building initiatives. Support was provided to the President in respect of Court-ordered mediation involving fifteen applications (claimant and compensation).
Sydney Office: staff in the Sydney Office deliver services to clients in New South Wales and South Australia. In respect of New South Wales, the Sydney Office received claimant, amended application and non-claimant applications, and future act determination applications during the reporting period. In respect of South Australia, the Sydney Office received claimant applications and one non-claimant application as well as ILUA applications. Assistance requests from both jurisdictions were received and actioned.
Melbourne Office: staff in the Melbourne Office provide services to clients in Victoria and in the Northern Territory (and in Tasmania if required). During the reporting period ILUAs (both area agreements and body corporate agreements) were lodged in Victoria. In respect of the Northern Territory, claimant applications and a non-claimant application were filed. A variety of assistance requests were also received and actioned.
Cairns Office: staff in the Cairns Office provide services in northern Queensland, Cape York, Gulf of Carpentaria and Torres Strait regions. The Cairns Office received new claimant and non-claimant applications and dealt with a range of assistance requests during the reporting period, including for dispute resolution under s 203BK of the Act. ILUA-related activity remained very high in the northern Queensland region, as it has in previous years, with more than half the total number of applications received by the Tribunal to register ILUAs during the reporting period originating from this region.
National Registration Section: under delegations made by the Registrar, the National Registration Section considers claims made in claimant applications, for registration. Staff in the Registration Section are also responsible for decisions as to whether ILUAs must be notified and registered on the Register of Indigenous Land Use Agreements. Staff also provide assistance by way of preliminary comments upon native title applications and ILUAs for the purposes of registration on the Register of Native Title Claims or the Register of Indigenous Land Use Agreements respectively.
Geospatial Services: during the reporting period the demand for the Tribunal’s geospatial products and services steadily increased. The number of external users registering for access to the Tribunal’s online mapping and visualisation tool, Native Title Vision (NTV) increased by more than a third. Geospatial Services continued to develop and improve NTV to facilitate more efficient case management. The geospatial production teams dealt with a significant increase in workload during the reporting period.
Operations: the Operations Section consolidated the future act policies and procedures through the development of a concise and informative set of six Future Act Handbooks. Operations continued to refine the Tribunal’s key business system, the Integrated Case and Future Act Management System (ICaFAMs). The Section has also delivered specialised training on the ICaFAMs, the new
Future Act Handbooks and the changes to the Policy and Procedure Library, while also being extensively involved in the redevelopment of the Tribunal’s website.
FUNCTIONS OF THE TRIBUNAL
A key function of the Tribunal, under Subdivision P of the Act, is the resolution by mediation or arbitration of issues involving certain proposed future acts (primarily, in practice, the grant of exploration and mining tenements) on land where native title has been determined to exist or where native title might exist.
As with previous years, most future act activity occurred in Western Australia, and almost all of the remaining future act activity occurred in Queensland.
A future act which is governed by Subdivision P can only be done if the relevant government complies with the notification requirements set out in s 29(2) of the Act (a ‘section 29’ notice).
Expedited procedure objection applications and inquiries
A government party might assert, pursuant to s 29 (7) of the Act, that the proposed future act is an act which attracts the expedited procedure i.e. that it is an act which will have minimal impact on native title and, as such, does not give rise to the procedural right for native title party/parties to negotiate.
If a native title party considers that the expedited procedure does not apply to the proposed future act, it may lodge an expedited procedure objection application (objection application) with the Tribunal.
A total of 1395 objection applications were lodged during the reporting period, approximately ninety per cent of which were lodged in Western Australia. This number, which was approximately nine per cent lower than in the previous year, is consistent with a reduction in the number of notices given during the reporting period asserting that the expedited procedure applied.
Although fewer objection applications were lodged than in the previous reporting period, a higher number were finalised (a total of 1544) than had been finalised in the previous year (a total of 1407). This outcome represents the clearing by the Tribunal of a backlog of objection applications.
The number of objection applications proceeding to inquiry and determination before a Tribunal member increased significantly during the reporting period. A total of ninety-nine determinations in respect of objection applications were made during the reporting period, twice the number of the previous year. This trend reflects the adoption of more rigorous processes within the Tribunal for the management and progressing of objection applications.
During the reporting period almost 500 tenement applications, in respect of which objection applications had been made, were withdrawn by the proponent. This is a much higher number than in previous years, and apparently reflects global market conditions for Australian mineral resources.
Future act determination applications, negotiation and good faith requirements and inquiries
If a proposed future act does not attract the expedited procedure, the parties proceed to negotiate the doing of that future act, either without conditions or subject to conditions. During the reporting period seventy new requests for the Tribunal mediation assistance in negotiating future acts were made, which number was similar to the previous reporting period. Approximately one third of mediations resulted in agreements being made.
The Act prescribes a six months negotiation period, at the expiry of which, absent agreement having been reached, any party to the negotiation may lodge a future act determination application. During the reporting period, forty future act applications, counted by tenement, were lodged. This was twice the number of applications which had been lodged in the previous year.
The Act requires that negotiations about a proposed future act must occur in good faith. If there has been a failure to negotiate in good faith by a party, other than a native title party, the Tribunal has no power to make a determination on the application. If any party asserts that negotiations in good faith have not occurred, the Tribunal will hold a preliminary inquiry to establish whether or not that is the case. During the reporting period the Tribunal made four ‘good faith’ determinations. In three cases, the Tribunal determined that the parties had negotiated in good faith; in the fourth, the Tribunal found that good faith negotiations had not occurred. The parties to that matter were directed to negotiate further, prior to the matter being substantively dealt with by the Tribunal upon a further future act determination application.
Twenty-three future act determination applications were finalised during the reporting period. Ten of those twenty-three were finalised by determination, and eight of those ten were finalised by consent determination. Those outcomes are consistent with the Tribunal’s emphasis on facilitating outcomes through agreements. The remaining thirteen future act determination applications were withdrawn or dismissed.
Consistent with the trend from previous years, ninety per cent of future act determination applications finalised in the reporting period were finalised within six months of lodgement.
In September 2013 the Hon Justice John Dowsett of the Federal Court directed the Tribunal to hold a native title application inquiry pursuant to Subdivision AA of Division 5, Part 6 of the Act. This is the first time that an order has been made for the Tribunal to hold such an inquiry.
The President is conducting the inquiry, which, at the end of the reporting period, was still on foot.
As at the end of the reporting period, a total of fifteen applications filed pursuant to s 61 of the Act were in mediation with the Tribunal. This total included four matters that were referred for mediation during the reporting period. The fifteen matters involve land and waters located in the south-west of Western Australia, which area is subject to the South-West Settlement Negotiations, and include three compensation applications. The President is the mediator of the fifteen matters.
ASSISTANCE IN NEGOTIATING INDIGENOUS LAND USE AGREEMENTS
During the reporting period the President and Member James McNamara provided assistance in negotiating two ILUAs in far north Queensland, pursuant to s 24BF (body corporate agreements) and s 24CF (area agreements) respectively of the Act.
The President also held preliminary discussions concerning assistance with a possible ILUA process for fisheries reforms in the Torres Strait and for a proposed ILUA template for Land Tenure reforms in Queensland.
Assistance to representative bodies in dispute resolution
During the reporting period Member Valerie Cooms provided dispute resolution assistance to a native title representative body in the Cairns region pursuant to s 203BK of the Act.
FUNCTIONS OF THE NATIVE TITLE REGISTRAR
CLAIMANT AND AMENDED APPLICATIONS: ASSISTANCE AND REGISTRATION
Sections 190A – 190C of the Act confer upon the Registrar the responsibility of considering claims made in claimant applications, and claims made in amended applications, for registration on the Register of Native Title Claims. To that end, the Federal Court Registrar provides the Registrar with a copy of such applications and accompanying documents, which have been filed in the Federal Court.
Officers in the Registration Section, under delegations made by the Registrar, consider the relevant claims in the applications. Those delegates also undertake preliminary assessments of such applications, and on draft applications, by way of assistance provided pursuant to s 78(1)(a) of the Act.
During the reporting period the Registrar received thirty-four claimant applications, eight fewer than in the previous reporting period, and twenty-eight amended applications, which was the same number as the year before. The majority of those applications had been filed in the Northern Territory, Queensland and Western Australia.
The Registrar’s delegates considered sixty-seven applications during the reporting period. Thirty applications were accepted for registration and twenty applications were not accepted for registration following consideration of the claim in the application pursuant to s 190A of the Act. Seventeen amended applications were considered and accepted for registration pursuant to the more limited test prescribed by s 190A(6A) of the Act.
Excluding decisions made under s 190A(6A), ninety-four per cent of the applications were considered for registration within six months of receipt. The average time taken to test an application was less than three months.
The delegates also provided preliminary assessments of sixteen applications during the reporting period.
INDIGENOUS LAND USE AGREEMENTS: ASSISTANCE AND REGISTRATION
Under the Act, parties to an ILUA (whether a body corporate agreement, area agreement or an alternative procedure agreement) must apply to the Registrar in order to have the ILUA registered on the Register of Indigenous Land Use Agreements. Each registered ILUA, in addition to taking effect as a contract among the parties to the ILUA, binds all persons who hold native title in relation to any of the land or waters in the area covered by the ILUA.
A majority of ILUAs currently on the Register of Indigenous Land Use Agreements were made in Queensland. In the past three years there has been an increase in the lodgment of ILUAs that provide for the exercise of native title rights and interests over pastoral leases, which stem from the Queensland Pastoral ILUA negotiations facilitated by the Tribunal during the 2011–12 reporting period.
Other registered ILUAs deal with native title related matters in connection with local government matters, mining, State-protected areas and community infrastructure such as social housing.
Under ss 24BG(3), 23CG(4) and 24DH(3) of the Act, the Registrar can provide assistance in the preparation of applications to register ILUAs. Often, this assistance takes the form of pre-lodgement comments upon the draft ILUA and the application for registration.
During the reporting period a total of 135 ILUAs (sixty-seven body corporate agreements and sixty-eight area agreements) were lodged with the Tribunal for registration. In the case of area agreements, this was eighteen less than in the previous reporting period; in the case of body corporate agreements, this was sixteen more than in the previous reporting period. The latter reflects the steadily increasing number of determinations of native title which are being made (body corporate agreements can only be made where there is registered native title body corporate in relation to all of the agreement area).
During the reporting period seventy-three of the 135 applications to register ILUAs covered land and waters in northern Queensland and accordingly were received in and managed by staff in the Cairns Office.
Sixty-five body corporate ILUAs and fifty-four area agreement ILUAs were accepted for registration and entered upon the Register of Indigenous Land Use Agreements during the reporting period. One ILUA was not accepted for registration. The number of ILUA registration decisions is similar to that of the previous reporting period.
The average time taken to register an area agreement was less than five months; the average time taken to register a body corporate agreement was less than three months.
On fifty-one occasions during the reporting period the Registrar’s delegates provided assistance in the form of comments on draft ILUAs.
During the reporting period a total of thirty-six native title determination applications were notified, which compares with thirty-three in the previous reporting period. Twenty-seven claimant applications were notified, compared with twenty-six in the previous year. Six non-claimant applications were notified, the same number as in the previous reporting period. Three compensation applications were notified during the reporting period, compared to one in the previous reporting period.
In addition the Registrar gave notice in respect of three amended applications in Queensland.
OTHER FORMS OF ASSISTANCE
Assistance in relation to applications and proceedings
Section 78(1) of the Act provides for the Registrar to give such assistance as the Registrar thinks reasonable to help people prepare applications and to help them at any stage of the proceeding; it also provides that the Registrar may help other people in relation to a proceeding. During the reporting period staff of the Tribunal provided assistance pursuant to s 78 of the Act on 299 occasions. Consistent with previous years most requests were for the provision of geospatial products.
Assistance in relation to ILUA applications
During the reporting period the Tribunal provided mapping assistance and related information pursuant to s 24BG(3) and s 24CG(4) respectively of the Act, in order to assist parties to prepare applications to register ILUAs, on ten occasions.
Searches of registers
Pursuant to s 78(2) of the Act, Tribunal staff members conducted 1495 searches of registers and other records to assist applicants and respondents during the reporting period.
THE REGISTER OF NATIVE TITLE CLAIMS
Section 185(2) of the Act vests responsibility in the Registrar for establishing and keeping a Register of Native Title Claims. This register records the details of claimant applications that have met the statutory conditions for registration prescribed by s 190A – 190C of the Act.
As at 30 June 2014 there was a total of 288 claimant applications on the Register of Native Title Claims. This number, which represents a decrease of thirty-eight applications from the previous reporting period, is to be understood in the context of the increase in the number of native title determinations which were made in 2013–14: see below.
THE NATIONAL NATIVE TITLE REGISTER
Under s 192(2) of the Act, the Registrar must establish and keep a National Native Title Register, on which register approved determinations of native title made by the Federal Court in particular matters are registered. During the reporting period a total of sixty-four determinations of native title were registered on the National Native Title Register, a significant increase from the previous reporting period. As at 30 June 2014 a total of 291 determinations were registered on this register: 232 determinations that native title exists, and fifty-nine determinations that native title does not exist.
A map of registered native title determinations as at 30 June 2014 is set out on page 72.
THE REGISTER OF INDIGENOUS LAND USE AGREEMENTS
Under s 199A(2) of the Act, the Registrar must establish and keep a National Native Title Register, on which area agreement, body corporate and alternative procedure ILUAs are registered. During the reporting period 118 new ILUAs were registered, and two were removed from the Register of Indigenous Land Use Agreements.
At 30 June 2014, there was a total of 884 ILUAs registered on the Register of Indigenous Land Use Agreements. A map of registered ILUAs as at 30 June 2014 is set out on page 73.
The 291 registered determinations as at 30 June 2014 covered a total area of about 1,955,956 sq km or 25.4 per cent of the land mass of Australia. Five conditional consent determinations (two in Queensland and three in Western Australia) were still awaiting registration at 30 June 2014. Upon registration, these applications will increase the area to about 2,044,938 sq km or 26.6 per cent of the land area: see Map 1.
Registered ILUAs covered about 1,948,854 sq km or 25.3 per cent of the land mass of Australia and approximately 6,067 sq km of sea (below the high water mark): see Map 2.
Queensland and three in Western Australia) were still awaiting registration at 30 June 2014. Upon registration, these applications will increase the area to about 2,044,938 sq km or 26.6 per cent
of the land area: see Map 1.
Registered ILUAs covered about 1,948,854 sq km or 25.3 per cent of the land mass of Australia and approximately 6,067 sq km of sea (below the high water mark): see Map 2.
Map 1: Map of registered native title determinations as at 30 June 2014
Map 2: Map of ILUAs as per the Register of Indigenous Land Use Agreements at 30 June 2014
MANAGEMENT OF THE TRIBUNAL
The Tribunal retained the same governance structure in 2013–14 as it had in the previous reporting period.
The President and Members met regularly in Members’ Meetings.
The Executive (comprising the Registrar and the Deputy Registrars) met regularly, usually each fortnight, with the Federal Court’s Senior Accountant, Human Resources Manager and other managers in attendance as required. The Executive deals with the Tribunal’s operational, budgetary and corporate matters.
Once each month the Registrar met with the Deputy Registrars and the managers of each office and section, in the Offices and Sections Group meetings.
The Tribunal is sub-programme 1.1.2 of the Federal Court’s Portfolio Budget Statement.
$11.149 million was allocated for the Tribunal’s operations in 2013–14. The Tribunal managed its financial resources carefully throughout the reporting period and at 30 June 2014 recorded a substantial surplus, most of which related to savings in staff salaries.
During the reporting period there were no judicial decisions, decisions of administrative tribunals, or decisions by the Australian Information Commissioner, that have had, or may have, a significant impact on the operation of the Registrar’s responsibilities or on the Tribunal
during the reporting period.
FREEDOM OF INFORMATION
During the reporting period, five formal requests were made under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to documents, of which three requests were withdrawn. The Tribunal complies with FOI Act requirements regarding publishing a disclosure log on its website. The disclosure log lists the information which has been released in response to FOI access requests.
ACCOUNTABILITY TO CLIENTS
The Tribunal maintains a Client Service Charter to ensure that service standards meet client needs. No complaints that required action under the Charter were received during the reporting period.
MEMBERS’ CODE OF CONDUCT
Members of the Tribunal are subject to various statutory provisions relating to behaviour and capacity. Tribunal Members are not subject to the APS Code of Conduct, except where they may be, directly or indirectly, involved in the supervision of staff.
Tribunal members have voluntarily adopted a code of conduct, procedures for dealing with alleged breaches of the members’ voluntary code of conduct and an expanded conflict of interest policy. During the reporting period, there were no complaints under either document.
The Tribunal maintains a website at www.nntt.gov.au
AUSTRALIAN HUMAN RIGHTS COMMISSION
Under s 209 of the Act, the Aboriginal and Torres Strait Islander Social Justice Commissioner must report annually on the operation of the Act and its effect on the exercise and enjoyment of human rights by Aboriginal peoples and Torres Strait Islanders. The Commissioner has invited the Tribunal to comment upon matters relating to native title determinations made during the reporting period; however, the Tribunal has referred the Commissioner to the Federal Court in this respect. The Commissioner has also invited the Tribunal
to put forward any other information, or comment on trends.
PRESIDENT’S PRESENTATIONS 1 JULY 2013 TO 30 JUNE 2014
|18 July 2013||Assisting Indigenous people in native title cases to include an update on native title law||Indigenous Justice Conference: Current issues in delivering Indigenous justice – challenges for the courts||AIJA|
|2 August 2013||Perspective on native title tenure process||Native title User Group Meeting||FCA|
|17 Sept 2013||Native title disputes? – Hold the line please||’kon gres 2013||LEADR|
|24 Sept 2013||Indigenous Sea Rights – the Grotius Heritage||Annual Richard Cooper Memorial Lecture (2013)||TC Beirne School of Law, University of Queensland|
|24 Jan 2014||Indigenous Sea Rights – Compromise to Maximise||Indigenous Sea forum||Torres Strait Regional Board (TSRB)|
|4 March 2014||What can anthropological research bring to the future act process?||YMAC Heritage workshop||Yamatji Marlpa Aboriginal Corporation (YMAC)|
|20 March 2014||To explore options for NNTT assistance to the Court in the resolution of native title claims||Judicial Education Sessions||Meeting of the Native Title Practice Committee, FCA|
|8 April 2014||Indigenous Land Use Agreements||Twilight Seminar||Herbert Smith Freehills|
|15 April 2014||Convene/chair a session on The Merits of Decisions by the Disability Insurance Agency||Conference||Australian Institute of Judicial Administration (AIJA)|
|14 May 2014||Shared country, shared future: Native title and the role of the National Native Title Tribunal (NNTT)||CPD Seminar||Queensland Bar Association|
|15 May 2014||Law and Indigenous peoples: Indigenous sea rights||Law Lecture||TC Beirne School of Law, University of Queensland|
|28 May 2014||Geospatial Services and Mapping – Interactive discussions||Internal Planning Day||Federal Court of Australia (FCA) NT|
|30 May 2014||Mining, native title and the impacts ion Indigenous Australians: when the mining stops||Environmental Law conference||Environmental Defenders Office, NT (EDONT)|
|27 June 2014||Agreement making in Indigenous contexts||World Indigenous Legal Conference||Queensland Law Society|