Part 5: Report of the National Native Title Tribunal
Federal Court of Australia Annual Report 2014-2015
Overview of the Tribunal
Establishment
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 further 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:
- mediating in native title proceedings, upon referral by the Federal Court of Australia (Federal Court)
- 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
- 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 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 the Act to the Native Title Registrar, Deputy Registrar 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 Native Title 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
- helping other people, at any stage of a proceeding, in matters relating to the proceeding
- considering claimant applications for the purposes of registering on the Register of Native Title Claims those applications which meet prescribed statutory conditions
- 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 Native Title Registrar may delegate to the Deputy Registrar, or to members of the staff assisting the Tribunal, all or any of the Native Title Registrar's powers. The President may direct the Native Title Registrar regarding the exercise of the Native Title Registrar's powers under Part 5 of the Act, including to conduct certain searches and to keep and make available public records and information.
The President, Members and the Native Title Registar
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 Native Title Registrar.
The table below outlines the terms of the Tribunal's current statutory office-holders.
| Name | Title | Appointed | Term | Location |
|---|---|---|---|---|
| Raelene Webb QC | President | 1 April 2013 | Five years | Perth |
| Helen Shurven | Member | Reappointed 29 November 2012 | Five years | Perth |
| Dr Valerie Cooms | Member | 4 February 2013 | Five Years | Brisbane |
| James McNamara | Member | 31 March 2014 | Five years | Brisbane |
Stephanie Fryer-Smith's appointment as Native Title Registrar concluded on 19 October 2014 and Andrew Luttrell was appointed for five years commencing on 3 November 2014. John Mathieson, Deputy Registrar, Federal Court was acting Native Title Registrar in the interim period.
Office locations
The Tribunal provides services and native title assistance in all Australian States and Territories from offices in Perth, Sydney, Melbourne, Brisbane and Cairns.
The office of the President is located in Perth, and since November 2014 the Native Title Registrar has been located in Brisbane.
Strategic vision
Vision: shared country, shared future
The vision for the Tribunal is 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 year in review
During the year under review, the key priority for the President was to adjust the focus of the Tribunal on achieving the organisation's strategic vision. This was achieved through internal innovation and change; participation in reforms to the native title system; ensuring the organisation is externally focused; and assisting clients meet the needs of the contemporary native title environment.
These are discussed separately below.
Significant developments
President's review
The foundation stone to delivering internal innovation and change was the President's Review (Review). Growth Partners International were commissioned to undertake an organisational review of the Tribunal, with the objective 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 among clients.
The Review was not undertaken as a cost-cutting exercise, rather, was intended to provide an opportunity for staff to contribute and solidify their place in a much improved, more highly regarded version of the Tribunal.
- The Review was a means of:
- reinforcing and strengthening the relationship the Tribunal has with the Federal Court
- contributing to an overall more streamlined approach to the native title system – for internal and external clients
- giving proper meaning and effect to the Tribunal's new vision 'Shared country, shared future'
- acting as a catalyst to re-engage and motivate the staff of the Tribunal
- creating urgency, mobilising and energising new ideas about how we can be more effective in the native title space.
The Review was completed in the previous reporting period, with recommendations presented to staff in January 2015 when consultation commenced.
The second half of the reporting period was occupied with:
- the establishment of the Tribunal Board of Management
- creating a change team to work with the Board of Management to effect organisational change
- the development of a new organisational structure
- recruitment to key senior positions
- delivering an introductory training program for staff.
At the end of the reporting period, the first phase of the President's Review had been implemented. This included:
- the appointment of a single Deputy Registrar, assuming the responsibility for Corporate Services and the general administration of the Tribunal. The Deputy Registrar, based in Perth, reports directly to the President and Federal Court Registrar on administrative matters
- the appointment of two Practice Directors to manage the practice teams and allocation of workflow. One Practice Director is based in Perth and the other in Sydney/Canberra.
Phase two of the Review, finalising the structure and further consultation with staff was scheduled to commence in July 2015, with planned completion October 2015.
Participation in reforms to the native title system
Members of the Tribunal were actively involved in a number of native title forums during the reporting period including:
1. President Webb and Member Cooms were among advisers to the Australian Law Reform Commission review and attended several meetings during the course of the year (August and February) as well as attending the launch of the Australian Law Reform Commission's 126th report Connection to Country: Review of the Native Title Act 1993 (Cth) in June 2015
2. President Webb and Member Cooms were also participants in the Australian Human Rights Commission Indigenous Leaders Roundtable on Property Rights held in Broome in May 2015
3. during the reporting period, Member Cooms was invited by the Hon Minister Scullion to be a member of the Expert Indigenous Working Group. Minister Scullion, who is leading a Council of Australian Governments (COAG) investigation into Indigenous land administration and use, invited the Group to guide the work of the investigation. More information is available at: http://www.dpmc.gov.au/indigenous-affairs/about/jobs-land-and-economy-programme/coag-land-investigation.
Recognition
President's Medal Award Winner 2014
Each year the Law Council of Australia presents the President's Medal – a prestigious award recognising an individual for their outstanding contribution to the legal profession nationally. The President, Raelene Webb QC, was a co-winner of the 2014 award, presented in late November 2014.
Member Cooms was appointed as an Adjunct Professor to Griffith University and the University of the Sunshine Coast in early 2015.
Client and stakeholder engagement
Building on the work of the previous year, 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.
As part of the Tribunal's commitment to developing and maintaining close engagement with clients and stakeholders, the President and the Native Title Registrar undertook a series of meetings around the country following Mr Luttrell's appointment.
There was increased demand for the President, Raelene Webb QC, to speak and present at conferences and seminars. In an exciting first for the Tribunal, the President was invited to speak at the World Bank Land and Poverty conference in Washington DC in March 2015. The conference is an annual global event run by The World Bank Development Economic Research Group, and the theme for 2015 was 'Linking Land Tenure and Use for Shared Prosperity'.
The President's paper, Historic Tenure Certainty Project: A tool for sharing the knowledge, sharing the future, was delivered during the session 'Strengthening indigenous rights'. The paper was about a collaborative project that the Tribunal is developing with the South Australian Government and South Australia Native Title Services. This project was an expansion of a fledging concept to develop tenure portals, a tool to help people benefit from shared knowledge.
This paper reflects the dominant theme of many of the President's papers and presentations, namely to find innovative ways to share information, work towards a shared future with benefits for all, and respond positively to challenges as they arise.
Following the presentation in Washington DC, the President was invited to present public lectures at three Canadian universities: Thomson Rivers University, Kamloops BC, University of North British Columbia, Prince George BC and University of Saskatchewan in Saskatoon.
In addition, the President delivered keynote addresses at this year's NSW Minerals Council annual forum 'NSW Mining – Beyond the Rocks – Compliance, Community, Environment', in Sydney and the AMEC annual convention in Perth – Exploring the future of mining.
A full list of the President's papers and presentations is annexed to this report.
During the reporting period, Member Helen Shurven gave a number of presentations, including at several LEADR conferences. Member Shurven also published several papers on mediation.
Among a number of other external engagements, Member Dr Valerie Cooms attended the Torres Strait Sea Forum Summit in Cairns to present a session on addressing disadvantage through Prescribed Body Corporates (PBCs) and Tribunal assistance to PBCs. In attendance were the Chairs of all the PBCs in the Torres Strait.
Member James McNamara delivered and participated in a number of workshops as well as delivering information and training presentations to Indigenous, sectoral and academic audiences. Copies of papers and presentations are available at www.nntt.gov.au/News-and-Publications/Pages/ Forms-and-Publications.aspx.
Assisting clients meet the needs of the contemporary native title environment
An important aspect of the Tribunal's client engagement has been to assist clients meet the needs of the contemporary native title processes. This took the form of a number of initiatives during the reporting period.
Tenure portals
The mapping product prototype developed in the previous year was used as the basis for further tenure portals in the reporting period. A key feature to the development of the tenure portals is the collaborative approach to capturing, sharing and analysing spatial information.
A number of collaborative efforts were entered into during the reporting period with State governments and Native Title Representative Bodies, responsive to clients' needs.
The tenure portals were the subject of several papers and presentations delivered during the reporting period, see Annexure at page 74.
National Future Act workshops
- Brisbane: On 16 September 2014, a workshop convened with King & Wood Mallesons, Gilkerson Legal and supported by the Queensland Government was delivered to clients entitled Exploration: Native Title and Aboriginal Cultural Heritage.
- Sydney: On 27 and 28 October 2014, in conjunction with King & Wood Mallesons, a two-day Future Act Workshop was held. The two-day workshop provided delegates with an understanding of how future act processes operate in New South Wales. The program provided an overview of the grant of coal and mineral titles in New South Wales, the relationship between native title future act processes and Aboriginal cultural heritage, the obligations of parties in the future act process and what Negotiation in Good Faith means. The program also explored Tribunal Arbitration, Tribunal Mediation, future act agreement making and the progress of registration of Indigenous Land Use Agreements.
- Perth: On 27 February 2015, in conjunction with Allens, two half-day workshops were delivered. The practical workshops focused on the operation of two key statutory provisions relevant to future act determinations under the Act.
- Sydney: On 15 April 2015, in conjunction with Allens, two half-day workshops were delivered. These focused upon providing native title and grantee parties with an understanding of preparing evidence for arbitral hearings conducted by the Tribunal.
Prescribed Bodies Corporate
Responding to an increase in requests, the Tribunal delivered training on native title issues and governance to a number of Prescribed Bodies Corporate.
In addition, a range of information and award sessions were delivered to state government departments in Western Australia and Queensland within the reporting period.
New Tribunal website
In July 2014, the Tribunal launched its new website, with a fresh design and structure to improve navigation and to place greater focus on the work and functions of the Tribunal and Native Title Registrar.
The updated website was also designed to ensure the future compatibility of the Tribunal's website with the Federal Court's IT operating system and to provide a suitable platform for the delivery of more diverse online services.
New features of the website 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.
During the course of the reporting period, a number of upgrades were made to the Tribunal's website to make further details about native title applications available through online searches. A new public notices search page was also released.
The Work of the Tribunal in 2014–15
General overview
Services and native title assistance are delivered to all Australian States and Territories from offices in Perth, Sydney, Melbourne, Brisbane and Cairns. In the sections below, detailed information about statutory functions and trends, together with quantitative data for deliverables achieved by the Tribunal and the Native Title Registrar respectively, is set out on pages 65 – 69.
Functions of the Tribunal
Future Acts
Overview
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.
| FUTURE ACT | NSW | NT | QLD | SA | VIC | WA | TOTAL |
|---|---|---|---|---|---|---|---|
| Objections to expedited procedure | 0 | 0 | 95 | 0 | 0 | 971 | 1066 |
| Future act determination applications | 1 | 0 | 6 | 0 | 1 | 16 | 24 |
| Total | 1 | 0 | 101 | 0 | 1 | 987 | 1090 |
As in previous years, most future act activity occurred in Western Australia, with almost all of the remaining future act activity occurring 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 1066 objection applications were lodged during the reporting period, approximately 91 per cent of which were lodged in Western Australia. This number is consistent with a reduction in the number of notices given during the reporting period asserting that the expedited procedure applied. Despite this downward trend, the ratio of objections lodged to notices has remained relatively consistent, with approximately 32 per cent of notices attracting an objection compared to 34 per cent in the 2013–14 period.
Similar to the last reporting period, although fewer objection applications were lodged, a higher number were finalised (a total of 1322). This outcome represents a continued decrease in the number of active applications at the end of a reporting period (551 2014–15: 815 2013–14). Of these almost 400 objection applications were finalised during the reporting period due to the withdrawal of the tenement applications by the proponent.
The number of objection applications proceeding to inquiry and determination before a Tribunal member decreased during the reporting period. A total of 68 determinations in respect of objection applications were made during the reporting period, a third less than the number of the previous year. This trend reflects closer management of the objection process by members, including the increase in the use of s 150 conferences to facilitate a timely outcome.
During the reporting period, the Tribunal referred a question of law to the Federal Court under s 145 of the Native Title Act in relation to an expedited procedure objection application. The outcome is detailed at External Scrutiny on page 73.
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 to gain the agreement of each native title party to the doing of that future act, either without conditions or subject to conditions. Any party may request Tribunal assistance in mediating amongst parties to obtain agreement. During the reporting period, 149 new requests for Tribunal mediation assistance in negotiating future acts were made; almost double that of the previous reporting period.
A contributing factor to the increase in work was as a result of the State of Queensland requesting the Tribunal to provide assistance in relation to approximately 60 small mining claims which were previously covered by an ILUA which expired in 2013.
Despite the increase in mediation assistance requests, a similar number of mediations to the past year were concluded in the reporting period, with a larger than usual volume continuing in the next period. Changes in the economic environment of the resources sector impacted some companies involved in mediations which had a flow-on effect to the resolution of mediations as companies re- evaluated their projects.
The Act prescribes a minimum six months negotiation period to obtain the agreement of native title parties. After this period, any party to the negotiation may lodge a future act determination application. During the reporting period, twenty-four applications were lodged. This was a decrease in the number of applications which had been lodged in the previous year and reflects the challenges faced by the resources sector during the reporting period.
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 'good faith' determinations in respect of eight proposed future acts. In two cases, the Tribunal determined that the parties had negotiated in good faith; in the other six the Tribunal found that good faith negotiations had not occurred. The parties to those matters were then required to negotiate further before the matter could be brought back to the Tribunal for arbitration.
Thirty-six future act determination applications were finalised during the reporting period, sixteen of those by determination. The remaining twenty future act determination applications were withdrawn or dismissed. Nine were withdrawn due to agreement being reached.
During the reporting period, some determinations were unavoidably delayed in their resolution. Lodged late in the 2013–14 reporting period, seven matters were on hand and allocated to Member Dan O'Dea when his untimely passing occurred. These matters went on to be resolved within the 2014–15 reporting period once a new member had been appointed.
In the reporting period, two proceedings arising from a Tribunal decision have been filed with the court in relation to the matter of Adrian Burragubba v James R McNamara & Ors: QUD343/2015 (notice of appeal from determination of the Tribunal) and QUD344/2015 (application for judicial review). These were ongoing at the end of the reporting period.
Other inquiries
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 was the first time that an order has been made for the Tribunal to hold such an inquiry.
The President completed the inquiry in the reporting period and provided her report to the Court.
Mediation
Mediation activity took place during the reporting period, with the President convening a number of mediation meetings in relation to a South Australian native title claim.
As at the end of the reporting period, fifteen applications filed pursuant to s 61 of the Act remain subject to mediation orders with the Tribunal. The fifteen matters involve land and waters located in the south-west of Western Australia, which area constitutes the South-West Settlement Area, including three compensation applications. The President is the appointed mediator.
Assistance in negotiating Indigenous Land Use Agreements
During the reporting period the President and Member James McNamara provided assistance in negotiating four ILUAs in far north Queensland, pursuant to s 24BF (body corporate agreements) and s 24 CF (area agreements) respectively of the Act.
Reconsideration of registration test
Three requests to reconsider a registration test decision were received and actioned in the reporting period. These requests related to applications filed in Western Australia, Queensland and New South Wales. Three decisions were made; two were that the Native Title Registrar should not accept an application for registration, and one decision that the Native Title Registrar should accept the application for registration.
Functions of the Native Title Registrar
| NATIVE TITLE DETERMINATION APPLICATIONS | NSW | NT | QLD | SA | VIC | WA | TOTAL |
|---|---|---|---|---|---|---|---|
| Claimant (new) | 2 | 10 | 12 | 1 | 1 | 3 | 29 |
| Claimant (amended) | 2 | 1 | 8 | 2 | 0 | 12 | 25 |
| Non-Claimant | 3 | 1 | 17 | 0 | 0 | 0 | 21 |
| Compensation (new) | 0 | 0 | 0 | 1 | 0 | 0 | 1 |
| Compensation (amended) | 0 | 0 | 0 | 0 | 0 | 1 | 1 |
| Revised Native Title Determination | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| Total | 7 | 12 | 37 | 4 | 1 | 16 | 77 |
Claimant and amended applications: assistance and registration
Sections 190A – 190C of the Act confer upon the Native Title Registrar the responsibility of considering claimant applications and applications for certain amendments to a claimant application, for acceptance for registration on the Register of Native Title Claims. To that end, the Federal Court Registrar provides the Native Title Registrar with a copy of claimant applications and accompanying documents which have been filed in the Federal Court.
The Native Title Registrar considers the relevant applications against the requirements of the Act. The Native Title Registrar may also undertake preliminary assessments of such applications, and draft applications, by way of assistance provided pursuant to s 78(1)(a) of the Act.
During the reporting period, the Native Title Registrar received twenty-nine claimant applications, five fewer than in the previous reporting period, and twenty-five amended applications, which was eleven less than the year before. The majority of new applications were filed in the Northern Territory and Queensland; the majority of amended applications were filed in Western Australia and Queensland.
Sixty-six applications were considered for registration during the reporting period; thirty-two were accepted, and seventeen 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 test prescribed by s 190A(6A) of the Act.
Excluding decisions made under s 190A(6A), 90 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.
Preliminary assessments of eighteen applications were also provided during the reporting period.
Indigenous Land Use Agreements: Assitance and Registration
Under the Act, parties to an ILUA (whether a body corporate agreement, area agreement or an lternative procedure agreement) must apply to the Native Title Registrar in order for it to be registered on the Register of Indigenous Land Use Agreements. Each registered ILUA, in addition to taking effect as a contract among the parties, binds all persons who hold native title in relation to any of the land or waters in the area covered by the ILUA.
The majority of ILUAs currently on the Register of Indigenous Land Use Agreements were made in Queensland. This trend continued in the reporting period as 72 per cent of all agreements registered were made in Queensland and, consistent with previous years, many provided for the exercise of native title rights and interests over pastoral leases.
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 Native Title Registrar can provide assistance in the preparation of applications to register ILUAs. Often, this assistance takes the form of pre-lodgment comments upon the draft ILUA and the application for registration.
During the reporting period a total of 100 ILUAs (fifty-one body corporate agreements and forty- nine area agreements) were lodged with the Native Title Registrar for registration. In the case of area agreements, this was nineteen less than in the previous reporting period; in the case of body corporate agreements, this was sixteen less than in the previous reporting period.
Sixty-five of the 100 applications to register ILUAs covered land and waters in Queensland.
Forty-seven body corporate and seventy area agreement ILUAs were accepted for registration and entered upon the Register of Indigenous Land Use Agreements during the reporting period. There were no decisions to not accept an ILUA for registration. The number of registration decisions is similar to that of the previous reporting period, although there were fewer decisions in relation to body corporate agreements and more decisions in relation to area agreements in contrast to the previous year.
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.
During the reporting period, assistance in the form of comments on draft ILUAs was provided on fifty- three occasions.
Notification
During the reporting period a total of fifty-one native title determination applications were notified, compared with thirty-six in the previous reporting period. Thirty-two claimant applications were notified, compared with twenty-seven in the previous year. Eighteen non-claimant applications were notified; three times the number of the previous reporting period. This follows the increased activity for the filing of non-claimant applications in Queensland. One compensation application was notified during the reporting period.
In addition, the Native Title Registrar gave notice in respect of thirteen amended applications.
Other forms of assistance
Assistance in relation to applications and proceedings
Section 78(1) of the Act provides for the Native Title Registrar to give such assistance as s/he thinks reasonable to help people prepare applications and to help them at any stage of the proceeding; it also provides that the Native Title Registrar may help other people in relation to a proceeding. During the reporting period assistance was provided pursuant to s 78 of the Act on 278 occasions. Consistent with previous years, a significant number of the requests were for the provision of geospatial products.
Assistance in relation to ILUA applications
During the reporting period 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, was provided on 178 occasions.
Searches of registers
Pursuant to s 78(2) of the Act, 1446 searches of registers and other records were conducted to assist applicants and respondents during the reporting period. This activity was similar to the previous reporting period.
The register of native title claims
Under s 185(2) of the Act the Native Title Registrar has responsibility 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 2015 there were a total of 270 claimant applications on the Register of Native Title Claims. This number represents a decrease of 18 applications from the previous reporting period.
The National Native Title Register
Under s 192(2) of the Act, the Native Title Registrar must establish and keep a National Native Title Register, which records approved determinations of native title. During the reporting period, a total of 24 determinations of native title were registered on the National Native Title Register, a significant decrease from the 64 registered in the previous reporting period.
As at 30 June 2015, a total of 315 determinations of native title have been registered: 254 determinations that native title exists, and 61 determinations that native title does not exist.
A map of registered native title determinations as at 30 June 2015 is set out in Map 1.
The Register of Indigenous Land Use Agreements
Under s 199A(2) of the Act, the Native Title Registrar must establish and keep a Register of Indigenous Land Use Agreements, on which area agreement, body corporate and alternative procedure ILUAs are registered. During the reporting period, 117 new ILUAs were registered, and three were removed from the Register. At 30 June 2015, there was a total of 998 ILUAs registered on the Register of Indigenous Land Use Agreements.
Maps
The 315 registered determinations as at 30 June 2015 covered a total area of about 2,240,304 sq km or 29.1 per cent of the land mass of Australia and approximately 99,114 sq km of sea (below the high water mark). Five conditional consent determinations (four in Queensland and one in Western Australia) were still awaiting registration, and one determination in Queensland was in the process of being registered at 30 June 2015. Upon registration, these applications will increase the area to about 2,301,516 sq km or 29.9 per cent of the land mass of Australia and approximately 99,497 sq km of sea: see Map 1.
Registered ILUAs covered about 2,118,482 sq km or 27.5 per cent of the land mass of Australia and approximately 12,301 sq km of sea: see Map 2.
Map 1: Map of registered native title determinations as at 30 June 2015
Map 2: Map of Indigenous Land use Agreements as per the Register of Indigenous Land Use Agreements at 30 June 2015
[Note in map: Spatial data sourced from and used with permission of:Landgate (WA), Dept of Natural Resources & Mines (Qld), © The State of Queensland, Land & Property Management Authority (NSW), Dept of Lands, Planning & the Environment (NT), Dept for Planning, Transport & Infrastructure (SA), Dept of Environment and Primary Industries (Vic) and Geoscience Australia, Australian Government, © Commonwealth of Australia. Geotrack Number: GT2015/1322]
Management of the Tribunal
Tribunal governance
The Tribunal commenced the implementation of a new governance structure to align and give effect to key recommendations from the President's Review.
The key governance group, the Tribunal Board of Management, was established in November 2014. The Board is accountable for setting the strategic direction of the Tribunal and ensuring effective and efficient service delivery to clients.
The Board is chaired by the President and includes the Native Title Registrar, Member McNamara and Deputy Registrar, Dr Debbie Fletcher. The Board met regularly during the reporting period.
The President and Members also met in Members' Meetings.
As stated previously, phase one of the President's Review has been completed and phase two was in progress at the end of the reporting period. This includes the identification of any other governance groups necessary to support and deliver the Board's directives to achieve the Tribunal's strategic direction.
Financial review
The Federal Court's appropriation includes funding for the operations of the Tribunal. This funding is set out as sub-program 1.1.2 in the Court's Portfolio Budget Statements. $11,089 million was allocated for the Tribunal's operations in 2014–15.
The financial figures at Appendix 1 are the consolidated results for both the Court and the Tribunal.
A summary of the Tribunal's income and expenditure for 2014–15 is set out in the following Operating Statement.
| Operating statement for year ending 30 June 2015 | ||||
|---|---|---|---|---|
| Program 1.1.2 National Native Title Tribunal | Amended Budget Actual $'000 | Actual $'000 | Variation $'000 | |
Revenue | Revenue from Government | 10,890 | 10,890 | 0 |
Service receipts | 0 | 5 | 5 | |
Total revenue | 10,890 | 10,895 | 5 | |
Expenses | Tribunal staff and office holders | 9,768 | 9,183 | 585 |
Supplies and services | 1,122 | 1,295 | -173 | |
Total Expenses | 10,890 | 10,478 | 412 | |
Operating Result | 0 | 412 | 412 | |
The Tribunal managed its financial resources carefully throughout the reporting period and at 30 June 2015 recorded a surplus of $.412 million most of which related to savings in staff salaries.
External scrutiny
Judicial decisions
During the reporting period, the Tribunal referred a question of law to the Federal Court under s 145 of the Native Title Act 1993 in relation to an expedited procedure objection application. This special case was only the second referral made under s 145 in the history of the Tribunal, with the first made by Member O'Dea in September 2009.
The Federal Court delivered judgment in the matter on 5 June 2015. The case concerned circumstances where a State government had advised the Tribunal that they proposed to excise an area of land from the area to be granted in relation to a s 29 notice the subject of a right to negotiate application before the Tribunal. The Court clarified that such advice is merely an indication of a course of action proposed to be adopted, and the Tribunal must place appropriate weight on the assertion of such intention as is required in the circumstances.
It is also clear from the decision that the Tribunal is not limited in its inquiry to an area of a proposed grant in relation to which an objector has registered or determined native title rights and interests, but rather must consider the s 237 criteria as against the entire tenement area, having regard to all the evidence put before it.
For more information please read the full judgment: Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560.
There were no other 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 Native Title Registrar's responsibilities or on the Tribunal during the reporting period.
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.
Online services
The Tribunal maintains a website at www.nntt. gov.au. During the reporting period, further online functionality of Tribunal services was expanded in relation to statistical and geospatial information.
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 Tribunal continues to assist the Commissioner as requested in this exercise.
In memoriam
The members and staff of the Tribunal were deeply saddened by the untimely passing of Senior In-House Counsel, Lisa Wright, an employee since 1998 who passed away in December 2014.
Annexure
| DATE | TITLE | EVENT | ORGANISERS |
|---|---|---|---|
14 October 2014 | Chair seminar, Native Title | The Native Title Act: An Introduction to Future Act Procedures | Law Society of WA |
27 October 2014 | Panel Discussion Member | Aurora Native Title Law | Aurora |
13 February 2015 | The interaction of the Native Title Act 1993 (Cth) and the Aboriginal Land Rights Act 1983 (NSW) - issues for the resolution of native title determination applications | NSW Native Title User Group Meeting, Sydney | Federal Court of Australia |
27 February 2015 | Evidence & Future Act Inquiries | Evidence Workshop, Perth | Allens/National Native Title Tribunal |
25 March 2015 | Linking Land Tenure & Use for Shared Prosperity | World Bank Land & Poverty Conference Washington DC | World Bank, Washington DC |
31 March 2015 | National Native Title Tribunal of Australia – Sharing the Knowledge, Sharing the Future | Public Lecture, Thomson Rivers University | University of Thomson Rivers, Kamloops, Canada |
1 April 2015 | Participant, Comparative & Indigenous rights
| Thomson Rivers University, International Law Course (by video to Oklahoma, Saskatoon, & Waikato (NZ)) | University of Thomson Rivers, Kamloops, Canada |
2 April 2015 | National Native Title Tribunal of Australia - Sharing the Knowledge, Sharing the Future | Speaker at Global Fridays series, UNBC | University of North British Columbia, Prince George, Canada |
| 10 April 2015 | National Native Title Tribunal of Australia – Sharing the Knowledge, Sharing the Future | Faculty/Graduate Student seminar, University of Saskatchewan | University of Saskatchewan, Saskatoon, Canada |
| 16 April 2015 | Evidence & Future Act Inquiries | Evidence Workshop, Sydney | Allens/National Native Title Tribunal |
| 18 May 2015 | Future Acts, Native Title Claims/PBC's | Presentation & Workshop | Kimberley Land Council and KRED Enterprises, Broome |
| 2 June 2015 | Women & The Bar – be passionate & hold your nerve | Seminar, Women at the Bar – be passionate & hold your nerve, Hobart | Tasmania Bar Association in conjunction with Tasmanian Women Lawyers |
| 12 June 2015 | Legalwise 5th Annual Native Title Conference | Historic Tenure Capture – Obstacle or Opportunity, Perth | Legalwise Seminars |
| 17 June 2015 | Working with native title in New South Wales | NSW Mining – Beyond the Rocks – Compliance, Community, Environment, Sydney | NSW Minerals Council |
| 18 June 2015 | Historic Tenure and Native Title – Sharing the Knowledge, Sharing the Future | National Native Title Conference 2015, Port Douglas Qld | AIATSIS |
| 23 June 2015 | Challenges in the Native Title System | AMEC Convention 2015, Perth | Association of Mining & Exploration Companies Inc |
