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Legal and Constitutional Affairs Legislation Committee
National Native Title Tribunal

National Native Title Tribunal


CHAIR: Good afternoon and welcome to our budget estimates consideration. Do you have an opening statement?

Ms Fryer-Smith : No, thank you.

CHAIR: So, Senator Smith, welcome aboard: I think this is the first time we have had you at our legal and con committee and estimates hearings.

Senator SMITH: It is, thanks very much, Chair. My questions are specifically related to the Native Title Respondent Funding Scheme. I am keen to understand that the plan to consolidate the existing 26 statutory and non-statutory financial assistance schemes, including the Native Title Respondent Funding Scheme is still the plan.

Ms Fryer-Smith : I think that might best be a question directed towards to the department, because it deals with respondent funding issues.

Mr Duggan : Yes, Senator, that is still the plan.

Senator SMITH: And 1 July 2012 is still the deadline?

Mr Duggan : In relation to the other schemes. In relation to the scheme that you have referred to, there will be a transition period to 1 January 2013.

Senator SMITH: Thank you. Secondly, I am keen to understand what progress has been made in the development of a revised exceptional circumstances criteria. Can you provide me with an update on that particular issue?

Mr Duggan : We had been consulting. Those submissions have now been received and we are considering them. No final brief has gone to the Attorney. We are considering that matter at the moment; we have consulted widely with relevant stakeholders, and there have been significant submissions given by people who would have been recipients of the Native Title Respondent Funding scheme, for example.

Senator SMITH: So the comment was that you have consulted widely?

Mr Duggan : We have consulted widely, yes.

Senator SMITH: It is that consultation point that I am leading to. I am keen to understand: has the Western Australia Pastoralists and Graziers Association been part of that consultation process?

Mr Duggan : That is certainly my understanding. We have certainly consulted with the NFF. My understanding is that we would have consulted with the Western Australian as well. I can confirm for you, by taking on notice, exactly when that would have occurred, but we have basically sent a discussion paper very widely to all stakeholders—and, as you appreciate, that federation is a considerable stakeholder in this field.

Senator SMITH: Exactly. I would be interested in understanding what has been the extent of consultation with the Pastoral and Graziers Association, specifically in Western Australia. I am keen to also understand what remedies might be available to someone, or a group, who are unsuccessful in securing the exceptional circumstances opportunity? What consideration is being given to any sort of appeal or remedy mechanism?

Mr Duggan : There is currently a review mechanism within the current schemes, which will continue. That was basically an internal review mechanism, so there would be a review by a more senior officer of a decision taken by someone in that regard.

Senator SMITH: And it is expected that that will continue?

Mr Duggan : That is right.

Senator SMITH: Great, okay. Was any cost-benefit analysis undertaken by yours or other agencies to look at the benefits of group representation versus individual representation on native title matters?

Mr Duggan : In relation to the native title funding scheme in particular, there was a review done by Mr Tony Neal SC in relation to that. His report was published on 19 April and is on our website. Effectively, we have adopted his recommendations in that regard. However, I can indicate to you that there have been a number of indications made by a range of bodies in relation to the native title officers you refer to, and that will be the subject of briefing to the Attorney when we get to that point. There have been a number of representations made to us about the value of those offices. So we are aware of that point, and it was made most recently in the Native Title Consultative Forum that we held just last week. That issue was raised again.

Senator SMITH: Great. Could you just, by way of background, share with me what has initiated the government's change of policy on removing the funding for native title respondents?

Mr Duggan : To a large extent the amount of that funding has been going down for some time. The government was concerned that there needed to be a review about the efficiency and effectiveness of the funding that we were putting into the scheme. The government was also keen to try and broaden the sorts of things that we could fund out of a limited bucket of money, for example looking at the possibility of funding disbursements only, to encourage more pro bono work—and that is where the government came from. So those are the sorts of considerations that the government undertook. And, as I said, there was a significant review of the Native Title Respondent Funding Scheme by Mr Neal, and his recommendations were adopted.

Senator SMITH: Excellent. So, just to summarise then, consultation has been taking place. There is an understanding that the Western Australian Pastoralists and Graziers Association would have been part of that?

Mr Duggan : That is right, but I will confirm that for you.

Senator SMITH: Thank you. And that the implementation date has shifted to January 2013.

Mr Duggan : That is right.

Senator SMITH: Thank you very much; that is all I have.

CHAIR: Senator Brandis, you have questions for the Native Title Tribunal?

Senator BRANDIS: I don't mind if Senator Furner goes first, so I can have a little rest!

Senator FURNER: Thank you. I understand there has been a particular milestone reached in the number of registered ILUAs lately. Can you identify those numbers state-by-state, please?

Ms Fryer-Smith : Yes, I can. It was a significant milestone: 628 Indigenous Land Use Agreements, or ILUAs, were registered just last week. Of those, nine were registered in New South Wales; 99 in the Northern Territory; 355 in Queensland; 72 in South Australia; 40 in Victoria; and 53 in WA, which makes the grand total of 628.

Senator FURNER: What is the reason behind the high number in Queensland—355 seems highly disproportionate to the rest of the states and territories?

Ms Fryer-Smith : The rate at which Indigenous Land Use Agreements have been taken up does vary very much from jurisdiction to jurisdiction—and they are, as you have observed, particularly numerous or popular in Queensland. Frequently, they are tied to consent determinations of native title. Sometimes they are conditional upon a determination of native title, or sometimes there is a determination of native title followed by the negotiation and entry into Indigenous Land Use Agreements. Sometimes they are stand-alone project ILUAs, which is also very much the case in Queensland.

Senator FURNER: Could you give me a basic example of some of the types of ILUAs in regard to pastoral or other forms of registered agreements?

Ms Fryer-Smith : When you say 'example' do you mean a particular example?

Senator FURNER: Yes.

Ms Fryer-Smith : If you could just bear with me. Senator, I cannot put my finger on a particular example just at the moment, but in Queensland there are pastoral Indigenous Land Use Agreements—they are very frequently used. Similarly, ones relating to mining and any sorts of development—pipelines, infrastructure to do with industry generally. The subject matter of an ILUA can be quite minor in commercial terms, but they can also be very commercially significant. And, as indicated, they are critically important, often when they are tied to the determination of a native title application.

Senator FURNER: Resulting from those ILUAs being reached, are there any identifiable flow-on effects to the communities?

Ms Fryer-Smith : Invariably, I would suggest, there will be benefits to the local communities in respect of the entry into an Indigenous land use agreement, whether those are commercial benefits or sometimes could be in relation to particular rights being exercised over a national park, land management in various forms. The subject matter is as extensive as matters can be lawfully agreed upon. There can be community development, education scholarships, business opportunities, traineeships—things of that nature—but, again, these are all negotiated on a case-by-case basis.

Senator FURNER: I understand that a recent decision in Queensland from the Mamu people and Ergon Energy has resulted in some flow-on effects to the local community.

Ms Fryer-Smith : Yes, absolutely.

Senator FURNER: Can you expand on what those effects and benefits to the community are?

Ms Fryer-Smith : Yes. Can I just pass to my colleague Mr Frank Russo?

Senator FURNER: Yes, of course.

Mr Russo : That particular agreement related to a determination of native title as well. It was aligned to a consent determination. There was also a particular agreement there which related to mining. Many of those agreements include things such as jobs. It may include royalties. I do not have the specifics of that particular agreement, but there are a number of that kind. We could provide further information through a question on notice.

Senator FURNER: Okay then. Lastly, what land mass and also sea mass is covered by ILUAs throughout the continent?

Ms Fryer-Smith : Registered Indigenous land use agreements—and of course they have to be registered in order to be an Indigenous land use agreement—cover some 1.329 million square kilometres of land, or 17.3 per cent of the total land mass of Australia.

Senator BRANDIS: Am I right in saying that the number of members of the National Native Title Tribunal was 12 at the time of the election of the Labor government in 2007 and is now six?

Ms Fryer-Smith : Certainly the current number is six.

Senator BRANDIS: It was 12 in 2007, wasn't it?

Ms Fryer-Smith : I am almost certain that it was, but if I can check that—

Senator BRANDIS: It is also the case, isn't it, that as at 1 July it will be reduced further to four?

Ms Fryer-Smith : Yes, that is so.

Senator BRANDIS: Deputy President Sumner and Deputy President Sosso are both leaving the tribunal; is that right?

Ms Fryer-Smith : In fact, Deputy President Sumner has already retired from the tribunal.

Senator BRANDIS: So he has not been replaced?

Ms Fryer-Smith : No, he has not.

Senator BRANDIS: And Mr Deputy President Sosso has been told by the government that he will not be reappointed?

Ms Fryer-Smith : I understand that he is leaving the tribunal on 30 June.

Senator BRANDIS: And they are not going to be replaced; the court's establishment will be at four?

Ms Fryer-Smith : I cannot comment on that; that is a matter for the government.

Senator BRANDIS: Have you had any indication from the government that they will be replaced?

Ms Fryer-Smith : Not to date, no.

Senator BRANDIS: Would you like to see them replaced? Is that the wish of the tribunal?

Ms Fryer-Smith : The appointment of members is of course a matter for the government.

Senator BRANDIS: But the size of the appropriate staffing of the tribunal is a matter for the tribunal to have a view on. What is your view on the minimum number of members that the tribunal requires to do its work properly?

Ms Fryer-Smith : I cannot express a personal view on that matter.

Senator BRANDIS: No, I am not asking for a personal view; I am asking for your professional judgment as the CEO about a personnel and manpower issue.

Ms Fryer-Smith : The government—as you know, Senator Brandis—recently announced some institutional changes. Accordingly, the tribunal is itself at the moment in a phase of transition. We are transiting—

Senator BRANDIS: It seems to be a phase of transition to something not very much, if I may say so.

Ms Fryer-Smith : That is certainly a view that you might express, Senator Brandis. I think it is important to know, though, that notwithstanding the transfer to the Federal Court of mediation resources, which is effective from 1 July, the tribunal will in fact retain a significant number of its existing powers and functions. As of 1 July, obviously without the mediation function members will be involved in future act related work. We have retained our critically important functions in relation to the negotiation of project or stand-alone ILUAs. We also retain the function of registering native title claims and ILUAs and notifying both claims and ILUAs. We maintain a number of statutory registers. We provide statutory assistance of various forms. We have the power to conduct reviews and we retain our inquiry function. As I said, we are in a transitional phase. It is very hard to estimate particular member workload. As we see the mediation workload shift to the court, perhaps over time—

Senator BRANDIS: But the mediation function is one of the core functions of the National Native Title Tribunal, isn't it?

Ms Fryer-Smith : It has certainly been a core function of the tribunal, yes.

Senator BRANDIS: In fact, I would venture to suggest to you that it is the heart of the tribunal's work.

Ms Fryer-Smith : You might describe it in those terms, Senator. Certainly it has been a central plank of our work and one in which we have certainly devoted a lot of care and attention in developing our practice.

Senator BRANDIS: Would you consider that the tribunal after all these years has developed a specialist expertise in the mediation of native title disputes?

Ms Fryer-Smith : Others might describe it in those terms. As I said, we have devoted considerable care and time and resources to developing a particular approach to mediation, a multidisciplinary approach to our mediation function, and that is one which of course we have valued.

Senator BRANDIS: That reflects, if you like, an intellectual capital which the tribunal has that has been developed through practice and experience over nearly 20 years now.

Ms Fryer-Smith : Yes, that is so.

Senator BRANDIS: Do you think that intellectual capital is easily transmissible?

Ms Fryer-Smith : Your guess is as good as mine.

Senator BRANDIS: I suspect your guess is better than mine, but it would not, coming from you, be a guess. What will happen? Will all this specialist expertise now be lost?

Ms Fryer-Smith : As you have noted, Deputy President Sumner has left, Deputy President Sosso is shortly to leave, and another member will also leave on 30 June. I cannot say—

Senator BRANDIS: Who is the other one—or has that not been announced?

Ms Fryer-Smith : That is member Graham Fletcher.

Senator BRANDIS: Mr Fletcher. So will it be down to three members then?

Ms Fryer-Smith : No, four.

Senator BRANDIS: I see.

Ms Fryer-Smith : But, in terms of the loss of the particular expertise, obviously I cannot speak for any of those members or what they will be doing in their post-tribunal life. So, on whether the expertise is lost or not, I really cannot comment.

Senator BRANDIS: Well, I doubt they are about to be appointed Federal Court judges. This is, according to the government, being done—and I am quoting from Budget Paper No. 2 here—to 'achieve savings of $19 million over four years through efficiencies in the operation of the native title system'. I suppose you cannot put a dollar value on the intellectual capital that will be lost by this relatively small saving?

Ms Fryer-Smith : No, I could not.

Senator BRANDIS: Was this sought by the tribunal—this transfer of its functions away from it to the Federal Court?

Ms Fryer-Smith : No, it was not.

Senator BRANDIS: When were you first told of it?

Ms Fryer-Smith : We were informed of the institutional changes on 27 March this year—of the pending or proposed changes.

Senator BRANDIS: This was a budget announcement. This was the first you had heard of it?

Ms Fryer-Smith : In terms of it being a proposal in firm terms, yes, but during the period of the Skehill review last year, which has already been adverted to, we were aware that institutional changes for all small and medium agencies might be proposed and implemented.

Senator BRANDIS: If you were told of this on 27 March and it was being announced in the budget on 8 May, this was a fait accompli, wasn't it? You were not being asked whether you thought it would be a good idea; you were being in effect told that this was what was going to be happening.

Ms Fryer-Smith : We were told it was a proposal that government was considering and, subsequent to receiving that information, we did have a series of meetings with the department.

Senator BRANDIS: Did you express a view in opposition to that proposal that had been put to you on 27 March?

Ms Fryer-Smith : Any submissions or proposals which we might have put to the government at any time in relation to this were part of a confidential process, and I really have no comment on that.

Senator BRANDIS: Okay, let me approach it differently. Did the tribunal have a view about the proposal?

Ms Fryer-Smith : I suppose different views were expressed within the tribunal, but there was no tribunal view as such.

Senator BRANDIS: If you had meetings with the government and put a position to them that you are not prepared to reveal to the committee, the view that was put to government must have been a view advanced on behalf of the tribunal, surely?

Ms Fryer-Smith : Various discussions that were held certainly would have represented some in the tribunal.

Senator BRANDIS: I happen to know, Ms Fryer-Smith, that in fact the proposal was deeply resented by the tribunal. I know you cannot confirm that, but do you dispute it?

Ms Fryer-Smith : I cannot comment on that at all.

Senator BRANDIS: All right then. Can you tell us please about the level of the consultation by Mr Skehill?

Ms Fryer-Smith : During the process of the review?

Senator BRANDIS: Yes, this top-secret review.

Ms Fryer-Smith : The Skehill review commenced formally in August, and from August through till December we participated in the review in a number of ways.

Senator BRANDIS: You mentioned that the idea of absorbing some of the functions of the tribunal into the Federal Court had been raised during the course of the Skehill review. Do you understand the decision that the government ultimately made in relation to absorbing the mediation function into the Federal Court to have been a decision giving effect to recommendations of the Skehill review?

Ms Fryer-Smith : Senator, I really cannot comment on that.

Senator BRANDIS: Why not?

Ms Fryer-Smith : The contents of—

Senator BRANDIS: I am not asking you to produce the contents of this top-secret review; I am just wondering whether—you having yourself, under no urging of mine, identified the Skehill process as the point at which this idea germinated—it is your understanding that this was giving effect to a Skehill recommendation.

Ms Fryer-Smith : What I said before in relation to our understanding of the process that was followed by the Skehill review was that we understood that institutional changes might be proposed in relation to a number of agencies, including our own, but—

Senator BRANDIS: 'Institutional change' is a very anodyne phrase, but the particular sort of institutional change being spoken of here was to effectively gut your tribunal of one of its central functions, namely the mediation function, wasn't it?

Ms Fryer-Smith : We really are not able to comment on the report, of course, at all, but, in relation to that part of the report which we have seen, some of the recommendations which we saw do appear to be broadly consistent with the institutional changes.

Senator BRANDIS: Yes. I am not allowed to give you the Skehill report because, if I do, Senator Crossin will jump on me—metaphorically speaking, of course. Ms Fryer-Smith, were you invited to make a submission to Mr Skehill's review?

Ms Fryer-Smith : Yes. The consultation process was quite an extensive one and an open one. We made written submissions and oral submissions, attended meetings and attended workshops.

Senator BRANDIS: Thank goodness there were workshops! What position did you take when Mr Skehill came calling?

Ms Fryer-Smith : Mr Skehill asked a range of questions about a range of matters relevant to the terms of reference. The submissions that we made were made as part of the confidential process of the review.

Senator BRANDIS: I think I am entitled to ask what the position of your agency was at a given point in time. Whether it was part of what you said to Mr Skehill or whether it was part of what you said to the government after 27 March this year, regardless of whether it formed part of a conversation, I am entitled to know what the position of your agency was. Was it the position of your agency at the time of the Skehill review that you did not consider that the mediation functions should be taken away from you?

Ms Fryer-Smith : The tribunal greatly valued its mediation role for the reasons that I have already outlined. That is probably as much as I need to say.

Senator BRANDIS: Yes, I think that is as much as you need to say. I think you were in the hearing room when I was talking to Mr Soden and he acknowledged that the mediation model developed and practised by your tribunal and the more familiar litigation model that the Federal Court observes are somewhat different.

Ms Fryer-Smith : Yes.

Senator BRANDIS: Do you agree with that?

Ms Fryer-Smith : From my observations, yes, I think the models are somewhat different.

Senator BRANDIS: Let me invite you to expand on that in your own words. How do you see them as being different, please?

Ms Fryer-Smith : Obviously my observation of the Federal Court's mediation practice is very much an external one. It is well known that the court has its own priority list of matters—that is, native title cases which are seen as being well within a point of being determined—and the tribunal has quite a number of those matters currently in mediation with it. Many of the cases on the priority list are, I understand, mediated by a deputy district-registrar. Sometimes I understand the court uses external consultants. The court also engages in case management of cases in a way that would certainly not be the same as the tribunals.

As I mentioned before, the tribunal has adopted a multi-disciplinary approach to dealing with native title mediations. We have a number of Indigenous employees who are involved in the mediation process. There is a high degree of awareness of the complexity of native title claims and proceedings. There are often very many parties. Their interests and priorities are not necessarily aligned. Over the years we think that the practice we have developed is one that is well suited to determining native title proceedings in a way in which typically there will be Indigenous land use agreements forming part of a packaged settlement of a particular determination. So, in a sense, all the parties' interests can be satisfied in the one outcome. So, it would appear that they are different styles.

The tribunal has taken its mediation role very seriously. Just yesterday, for example, there was a lot of publicity surrounding the Arabana determination in Northern South Australia—the Lake Eyre district. We were pleased to see that one finalised yesterday.

Senator BRANDIS: To your knowledge has there been demand from stakeholders, whether it be Indigenous interests, or land owners or other interests routinely represented before the tribunal, like, for example, mining companies, for the tribunal to be shorn of its mediation function?

Ms Fryer-Smith : I am not aware of any such request.

Senator BRANDIS: In some other countries with Indigenous populations—Canada, I am thinking of in particular—there are somewhat similar bodies to yours, aren't there?

Ms Fryer-Smith : I am not an expert on the Canadian system. I thought it was a common law system.

Senator BRANDIS: I understand that. Sorry—

Ms Fryer-Smith : As opposed to a statutory framework?

Senator BRANDIS: Yes, exactly. There are bodies that are not the same but somewhat similar in other countries that deal with the rights of Indigenous peoples in relation to land use and management, aren't there?

Ms Fryer-Smith : I would need to take that on notice.

Senator BRANDIS: All right. If you are not familiar with it I will not take it any further.

Ms Fryer-Smith : I understand that we have one of the most sophisticated statutory frameworks for not only the determination of native title claims but the management of future interests in land, as well.

Senator BRANDIS: Would you describe what you do as being world's best practice.

Ms Fryer-Smith : I would be far too modest to say that.

Senator BRANDIS: But you are happy to tell us that you think it is a very sophisticated way of dealing with the matter.

Ms Fryer-Smith : What I meant to say was that the statutory framework for dealing with native title matters in Australia is, I think, very sophisticated.

Senator BRANDIS: Do you think that overall—and I am inviting you to make a generalisation—that the tribunal has performed its mediation function successfully?

Ms Fryer-Smith : The tribunal has been satisfied with its mediation performance. I think the tribunal, like all parties and participants in the native title system, recognises the difficulties associated with quickly disposing of native title matters. That has been well recognised and indeed I think the complexity of it is in fact reflected in the complex statutory framework established in 1993—

Senator BRANDIS: But there are multi-layered complexities here, aren't there; there is not merely a complex statutory framework giving rise to legal complexities. But there are cultural complexities and there are what we might even call emotional complexities.

Ms Fryer-Smith : Yes of course; particularly intra-Indigenous issues.

Senator BRANDIS: Indeed. So to approach this from a black-letter lawyer's perspective would not adequately deal important dimensions to these multi-layered complexities?

Ms Fryer-Smith : That is an implied comment on the court's mediation practice. I really cannot comment.

Mr Wilkins : You asked about stakeholders' views. There have been representations to the government from people involved in pastoral and mining practice and Indigenous people saying that it is all taking too long and does not move quickly enough—you would probably be unsurprised to hear that—and some degree of satisfaction about what the Federal Court has actually achieved in the last three or four years. There has been that element, which I think is important to consider in terms of outcomes and results.

Senator BRANDIS: I think you are being Mandy Rice-Davies now, Mr Wilkins! I will leave it at that.

CHAIR: Thank you for your evidence. We are now moving to the Office of the Australian Information Commissioner.