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Thursday, 4 December 2003
Page: 23869


Mr SECKER (4:37 PM) —On behalf of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, I present the committee's report entitled The effectiveness of the National Native Title Tribunal, together with evidence received by the committee.

Ordered that the report be printed.


Mr SECKER —by leave—The report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund is the culmination of the committee's inquiry into the effectiveness of the National Native Title Tribunal and its success in discharging its statutory obligations as set out in the Native Title Act 1993. The committee prepared the report pursuant to subparagraph 206(d)(i) of the act. The committee is required by the act to inquire into and, upon the completion of such inquiry, report to both houses, inter alia, upon the effectiveness of the NNTT.

It is now more than 10 years since the tribunal commenced its work and almost five years since major amendments were made to the act. Those amendments were in part occasioned by the decisions of the High Court of Australia in Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 and the Wik Peoples v. the State of Queensland and Others (1996) 187 CLR 1. Over this period there has been significant change to the functions of the tribunal. The committee has maintained scrutiny of the work of the tribunal in its annual examinations of the tribunal's annual reports.

The committee's predecessor issued two interim reports on other aspects of its terms of reference under paragraph 206(d). As I have indicated, this inquiry has exclusively focused on the effectiveness of the NNTT. The inquiry commenced in the previous parliament and was recommenced with the appointment of the committee in February 2002. Initially a mid-October 2002 deadline for submissions was set. However, when a number of organisations, including the tribunal itself, asked for extensions, the committee agreed to extend the deadline. The tribunal provided final comments and responses to the evidence given to the committee in August this year.

We received views from many people and organisations who have experience of the tribunal and its work. These included Indigenous people; native title representative bodies; state, territory and local governments; lawyers; mining companies; and, as mentioned, the tribunal itself. The committee received 39 submissions to this inquiry. In addition, public hearings were held in Cairns, Brisbane, Byron Bay, Perth, Darwin, Broome and Canberra.

I would like to outline briefly some of the issues which arose in the course of the committee's inquiry. The list is not exhaustive, and I encourage senators and members to read the report. The 15th report, tabled by the predecessor of this committee, noted the difficulties involved in assessing the NNTT's effectiveness. Although the tribunal's functions and methods of operation are determined by the act, the tribunal's core function is the provision of mediation services to claimants and respondents. It is difficult to assess the effectiveness of mediation in circumstances where the tribunal does not make determinations.

The committee adopted the objectives of the tribunal as set out in section 109 of the Native Title Act 1993 as the criteria of its assessment of effectiveness. Based on its findings, the committee made a number of recommendations. The committee also made a number of suggestions as to how the tribunal should approach its functions.

One of the flagships of the NNTT has been the work it does to further the understanding of those involved in the native title process so that both claimants and respondents may make informed choices. Suggestions that the tribunal operated in a manner that was perceived as biased towards one group over another were indicative to the committee that these programs still have a considerable distance to travel.

Further, the committee became concerned about the level of understanding and informed consent in relation to agreement making. A concern that Indigenous land use agreements and other agreements may establish a pathway of costly litigation prompted the committee to ask that the NNTT stipulate and make it clear to the parties that any such agreement is enforceable, workable and user friendly.

In relation to the work of the tribunal, there were views offered that the tribunal represented a duplication of functions that were more efficiently performed by others in the process and that the tribunal was overfunded. The committee examined these concerns and concluded that the underspend evident in the tribunal's financial statements over the previous years is exactly that. The tribunal did not deliver the anticipated or expected outcomes.

The committee's examination of the evidence indicates that the dichotomy of roles between the registrar and the tribunal is not well understood and nor are the decision-making processes of the two. Added to this, the development of case law means that the work of the registrar, in particular, is evolving and is also often not understood. The committee therefore recommended that the registrar provide a brief plain English explanation as to the decision-making process.

The work of the registrar on notification was considered by the committee. It considers that a wide-reaching notification program is critical to a fair and just outcome, as it ensures that all parties who may have an interest have the opportunity to participate in the process and encourages the range of notification strategies to be pursued. Further, it recommends that the registrar, in consultation with the native title representative bodies, give consideration to providing parties with formal notification of tribunal decisions.

The committee also identified the need for a more inclusive approach to priority setting as well as the effective use of resources. Establishing priorities should include consultation with tribunal stakeholders at all levels and both claimant and respondent groups. The committee has recommended that within the next 12 months, on both a national and state-territory basis, the NNTT should develop a broad framework for setting priorities that includes consultation with each set of stakeholders.

Two other recommendations concern the tribunal processes and guidelines. The tribunal has some flexibility in the way it delivers its services, and these may be developed in line with emerging requirements. For this reason the committee has recommended that the time taken to register Indigenous land use agreements be reduced and the guidelines on acceptance of expedited procedure objection applications be reviewed to allow some consultation with the appropriate tribunal member about compliance issues. The committee has also recommended that consideration be given to increasing the number of appropriately qualified Indigenous members of the tribunal, as this would significantly enhance the work of the tribunal.

During the inquiry the committee became aware that the NNTT has been involved to an extent in supporting capacity building within Indigenous organisations. It believes that such programs can contribute to the efficiency of the tribunal through providing education and information to the organisations involved in the native title process. Accordingly, the committee has recommended that the NNTT continue to explore partnerships to develop capacity-building programs.

Finally, one further issue which arose in the course of the inquiry was the adequacy or otherwise of funding for the representative bodies. The committee makes no comment about this specific issue at this stage, as it is not central to the issue of the effectiveness of the tribunal. However, there is an opportunity for ATSIS to provide the representative bodies with accountability mechanisms to provide an accurate assessment of the funding those bodies receive. With this in mind, the committee has recommended that ATSIS develop templates for the performance based assessment scheme to assist native title representative bodies to implement the scheme. Further, it recommends that an inquiry be conducted into the work demands and funding needs of native title representative bodies.

During the inquiry, the committee heard evidence that suggested that there continues to be a sense of frustration about the native title process generally. The picture of the National Native Title Tribunal that emerged is one which acknowledges that it has some strengths and some areas in which the effectiveness of the tribunal can be improved. The committee's report focused on contributing to the work of the tribunal by making recommendations which will address some of the areas identified by the committee as requiring improvement. I also commend the secretariat staff, in particular Maureen Weeks, for their hard work, and Senator Johnston, the committee chair, for his patience and resolve to ensure a timely tabling of this report. I seek leave to move a motion in relation to the report.

Leave granted.


Mr SECKER —I move:

That the House take note of the report.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.