Chapter 2 Schedule 1—National Native Title Tribunal
History and context
A submission from the Registrar and Chief Executive Officer of the
Federal Court of Australia (the Federal Court Registrar) outlined the historical
context of the Federal Court of Australia’s (the Federal Court) increased
responsibilities for native title cases as follows:
- In 2009 to address
concerns around slow case processing, amendments were made to the Native Title
Act that gave the Federal Court ‘a new and overriding responsibility for
managing native title cases’.
- Amendments made in
2009 to the Federal Court of Australia Act 1976, confirmed ‘that the
Court has both responsibility and authority to actively manage cases’.
- Reforms announced as
part of the 2012‑13 Budget by the Hon Nicola Roxon MP, the then Attorney-General,
included the transfer from the Tribunal to the Federal Court of the mediation
function and associated resources, along with the Tribunals corporate functions
In giving evidence, representatives of the National Native Title
Tribunal (NNTT), Federal Court and the Attorney-General’s Department agreed
that essentially this Bill allows the finalisation of what has been an ongoing
process of administrative reform.
The President of the NNTT confirmed that as of 1 July 2012: the tribunal
no longer had a direct appropriation, with funding to support the performance
of the functions of the NNTT having been transferred to the Federal Court; and
‘a number of staff’ had transferred from the tribunal to the Federal Court.
The Federal Court Registrar’s submission identified the decisions and
administrative actions taken since the 2012-13 Budget announcement, most notably:
administrative agreements to ensure the smooth interim operation and transfer
of resources from the NNTT to the Federal Court; the transfer of native title
claim mediation to the Federal Court; the removal of NNTT’s FMA Act status;
accommodation changes; and a permanent MOU between the NNTT and the Federal
Court agreed pending the passage of the Bill.
The Federal Court Registrar’s submission described the Bill as an
opportunity to remove the legal risk associated with the current transitional
arrangements that results in ‘having a single FMA Act Chief Executive, but two
Public Service Act agency heads, with potentially conflicting legal
responsibilities and powers, including in relation to staff’.
Both in his submission and at the hearing, the Federal Court Registrar
expressed concern that if the Bill, as it relates to the Native Title Act, did
not proceed in its current form, the planned reforms would not be able to be
progressed. Further, he suggested this would lead to legal and administrative
At the hearing, the Federal Court Registrar clarified the risks as those
of the organisation rather than the jurisdiction of native title. Specifically,
he identified risks associated with uncertainty for staff, and challenges
associated with managing staff working ‘under terms and conditions of
employment in a hiatus’.
While noting the Federal Court Registrar’s concerns about extended
uncertainty if the Bill did not progress, the Native Title Registrar advised
that the tribunal, court and department have all been working closely over
several months in the lead-up to the transition to the new administrative
arrangements from 1 July 2012.
… there has been a steering group comprising representatives
of the Attorney-General's Department, the Federal Court and the tribunal, which
has been managing the change of process very closely. Indeed, we have
established some very clear boundaries and arrangements that make sure the
impact on the tribunal's business is not significant. It has actually been an
almost seamless process in so far as going into this interim period of post FMA
Act changes. The arrangements are working well and I think staff are feeling
quite secure and comfortable with the arrangements, so there has not been too
However, in a submission to the Senate Standing Committee on Legal and
Constitutional Affairs inquiry into this Bill, NTSCORP expressed the view that
‘Native Title Representative Bodies should have been afforded an opportunity to
comment on the institutional changes before they were announced and
The Explanatory Memorandum for the Bill states that it ‘amends the
Native Title Act to continue to improve the operation of the native title system
by enabling the NNTT and the Federal Court to work together in a more
coordinated and efficient manner and to achieve better outcomes’. One of the
key efficiency measures identified in the 2012-13 Budget was to transfer the
claims mediation functions from the NNTT to the Federal Court.
In giving evidence, the Attorney-General’s Department reinforced the
Government’s concern regarding the length of time taken for a number of
Indigenous people in the native title system to ‘get recognition of their
actual rights and interests’. The department noted that these delays did not
accord with the objectives of the legislation, and that in the worst case
scenarios people passed away while waiting for the opportunity to have their
Native title claims
It has now been over 20 years since the Mabo decision. Expanding on this
at the hearing, the President of the NNTT provided a brief history of native
title claims over the years, noting that as at 26 November 2012,
there were 211 determinations of native title on the National Native Title Register,
with 166 determinations that native title did exist.
The number of claims in the system peaked around 1998 and,
over a period, was trending downwards. But in more recent years a lot of new
claims have come into the system. For example, in the previous financial
year—2011-12—63 new claims were lodged and 65 claims were disposed of … In the
previous year, I think, there was a net increase of 13, because 60-odd came in
and 47 went out, … The fact is: new claims are still being made. We are not
dealing with a fixed total which diminishes over time.
A point of concern raised by the President was the length of time that
the some claims have been in the system:
… about half of the claims in the system have been there for
10 years or more, and some of the claims that have been resolved recently,
including the Wik claim, the final element of which was determined recently,
were lodged back in 1994. So, whilst as an arithmetic average it can be said
that it takes somewhere between six and seven years to resolve a claim, some
are resolved within a year or so and some go 10, 12, 13 or 14 years.
The Attorney-General’s Department contended—concurring with the
submission from the Federal Court Registrar— that the reforms
progressed by the Government from 2009, which saw the Federal Court play a
greater role in relation to the determination of claims, brought about an
increase in determinations.
However, as pointed out by the President, it is difficult to determine
exact causality with both the tribunal and court playing a role in what is
often a process running over many years.
Similarly, NTSCORP, in its submission to the Senate Legal and
Constitutional Affairs Committee inquiry into this Bill, suggested that:
… the outcomes achieved by the
[Federal Court] in the last 12 months have been the culmination of many
years of focussed assistance by the NNTT and in many cases, as a result of the
stage of the matters.
NTSCORP’s submission also raised concerns regarding the Federal Court’s
expertise and resources, and particularly understanding of cultural
NTSCORP is concerned that the [Federal Court] is focused on
resolving native title determination applications as quickly as possible without
due regard for the way in which Traditional Owners negotiate settlements with
respondent parties, particularly the State government … [Indigenous Land Use
Agreement] negotiations in NSW must be conducted in a culturally sensitive
manner that allows Traditional Owners time to properly consider and negotiate a
comprehensive settlement package.
Reflecting on her former years with the NNTT, but speaking in her
current capacity as an anthropologist, Dr Edmunds also cautioned against
focusing on a ‘speedy resolution’ at the expense of developing the important
relationships with stakeholders and producing thorough and peer‑reviewed
connection reports. Dr Edmunds explained both the relationships and the reports
need to be strong enough to ‘survive a determination of native title’.
The Federal Court Registrar refuted any implication that the court
approaches cases with ‘time is of the essence’ as the main criterion. Instead
he suggested that:
The power that the court has to make orders for things to be
done and the overarching view of the judge about what ought to be done in the
case is not paramount … But there are areas that we think we can successfully
push and have successfully pushed and have asked some hard questions: 'Why is
it taking so long?' and 'Have you thought about this alternative?’
In relation to the mediation function, the Federal Court Registrar
suggested that the ‘special difference’ between the NNTT and the Federal Court
is, in the case of the latter, the opportunity to for people to work closely
with the judge:
… it is a combination of a case management process, direction
by the judges and a focusing of the issues where appropriate. One of our people
can mediate particular issues or mediate in the broader sense under the
umbrella of the judge managing the case. 
Access to courts
An area of concern raised by a number of parties was access for
individuals to courts and tribunals, and whether more could be done in this
area. The Attorney-General’s
Department advised that in regard to the current reforms it had not received
feedback indicating ‘any particularly significant negative impact to users of
the NNTT or the Federal Court services’.
However, after examining the Bill, the Parliamentary Joint Committee of
Human Rights requested that the Attorney-General provide further information as
to whether the Bill could potentially impede access to justice.
Likewise, in a submission to the Senate Legal and Constitutional Affairs
Committee, the Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS) queried the proposed amendments to section 203BK of the Bill
requiring payment by native title representative bodies for assistance by the
court or tribunal with performing dispute resolution services. AIATSIS was
concerned that these ‘already underfunded bodies’ may be further limited in
their capacity to fulfil their statutory functions.
Dr Edmunds raised similar concerns at the hearing, noting that in the
past while payment may have been prescribed, in practice charges were not
applied to requests for assistance with mediation.
In response to suggestions that section 203BK required clarification,
the Attorney-General’s Department advised that there is currently a steering
committee comprised of members of the court, tribunal and department reviewing
a range of additional services and functions that the NNTT has undertaken. The
group is expected to report to Government, providing suggested priorities and
options for maximising resources and services within the constrained fiscal
Transition of expertise
With the mediation-related responsibilities having been transferred to
the Federal Court, the Committee wanted to confirm that the court had the resources
for case management, research and support to expedite claims, along with the
ability to carry out on-the-ground mediation in remote communities.
Responding, the Federal Court Registrar proposed that the changes taking
place align with the Skehill Review’s stated position that resources should be
consolidated in the place that has the responsibility.
In reflecting on his many years with the NNTT, the President expressed
hope that these new arrangements would build on the lessons learned, guidance
developed and experience of the tribunal.
In support of the President’s comments, the Federal Court Registrar
explained that in addition to a number of tribunal staff having moved to the
court, remaining tribunal members are regularly used ‘to do mediations for the
court’, and noted that the court has itself done on‑country mediations.
The Committee was pleased to hear that a close working relationship has
been developed and sustained by the department, court and tribunal. It appears
that planning and implementation are well-underway in terms of facilitating the
transfer of the NNTT’s appropriations, staff and some of its administrative functions
to the Federal Court.
However, more may need to be done to reassure all stakeholders that the
Federal Court has the skills and capacity to ensure work in relation to native
title gets the priority it deserves. While making no judgement on the actual
capability of the Federal Court, the Committee suggests more may need to be
done to communicate with all stakeholders to ensure continued confidence in the
native title system.