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Chapter 1 - Introduction
Terms of reference
1.1
On 15
September 2003, the Committee adopted the following terms of
reference:
That, pursuant to
paragraph 206(b) of the Native Title Act
1993, the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund inquire into and report on the capacity of
Native Title Representative Bodies to discharge their responsibilities under
the Act with particular reference to:
- the structure and role of the Native Title
Representative Bodies;
- resources available to Native Title
Representative Bodies, including funding and staffing; and
- the inter-relationships with other
organisations, including the strategic planning and setting priorities,
claimant applications pursued outside the Native Title Representative Body
structure and non-claimant applications.
1.2
The Committee was re-appointed in November 2004, and
re-adopted the above terms of reference.
Conduct of the inquiry
1.3
The Committee advertised the inquiry on the Internet as
well as writing to a number of interested organisations and individuals.
1.4
Public hearings were held in Canberra
on 12 May 2004, Alice
Springs on 19 July
2004, Broome on 21 July
2004, Perth on 19 July 2005, Brisbane
on 21 November 2005
and Canberra on 29 November 2005. The Committee received
forty-two submissions to the inquiry.
1.5
The Committee wishes to record its appreciation to all
those who took the time to prepare submissions and appear before the Committee.
The Committee wishes to particularly thank officers of the Office of Indigenous
Policy Coordination and the Attorney-General's Department for their
responsiveness in providing additional information to assist the inquiry.
Reviews of representative bodies
1.6
Representative bodies have been subject to a number of
reviews concerning their efficiency and effectiveness. A brief summary of the
main reviews is discussed below.
Parker report
1.7
In November 1994, ATSIC commissioned Guy Parker to
chair a review committee to examine the effectiveness of representative bodies
addressing staffing issues, measures which maximise appropriate native title
services to Indigenous people, and the appropriateness of financial and
administrative arrangements then in place for NTRBs.
1.8
The review noted that representative bodies had become
'the workhorses of the native title regime' and recommended, inter alia, that representative bodies
should be the first point of contact for all Indigenous people seeking to have
their native title recognised, that explicit mandatory functions should be
established, and that representative bodies should be adequately resourced.[1]
Love-Rashid report
1.9
In 1998, a report was commissioned by ATSIC to review
the relationship between funding levels and functions of representative bodies
and to assess their future funding and resource requirements in the light of
the Native Title Amendment Act 1998.
The review concluded that:
-
the workloads of representative bodies were
significantly higher than allowed for by the level of funding provided;
-
many representative bodies were unable to fulfil
their core functions and also provide professional management and
administrative systems;
-
corporate governance within representative
bodies was generally deficient; and
-
the shortcomings of the representative bodies
imposed considerable costs on the wider community.[2]
Miller report
1.10
In July 2002, ATSIC commissioned Bill Miller to conduct
a review of the representative body system at the request of the Minister in
order to satisfy the Minister that he was meeting his obligations under the Native
Title Act (NTA) with respect to representative bodies and in particular, to
investigate the quality of their strategic plans and the system for
distributing funds to representative bodies. The report concluded that:
-
all the Minister's responsibilities under the
NTA had been met, with the exception of the requirement to table annual reports
of representative bodies in both Houses of Parliament;
-
the strategic plans of each NTRB met the
requirements of the NTA but varied in quality, particularly in relation to
information provided on objectives, strategies, performance and financial
plans;
-
the strategic plans of NTRBs were predominantly
general in nature and in the main did not contain output and outcome targets
that enabled strategic workload planning;
-
neither the strategic plans, funding
applications nor annual reports of NTRBs contained sufficient information to
enable ATSIC to base its funding allocations on quantifiable outputs/outcomes;
and
-
ATSIC funding to NTRBs addressed known native
title funding needs but it raised concerns that such funding was not fairly
distributed among NTRBs on the basis of relative need.
1.11
The Miller report also made a number of
recommendations to improve the funding process for representative bodies. The
recommendations contained a requirement for
operational plans to be included in annual funding applications both to
give effect to strategic plans and to provide much needed performance
information.[3]
Other reviews
1.12
A number of other reports have addressed aspects of the
operation of NTRBs.
PJC report on ILUAs
1.13
The PJC on Native Title published its report on
Indigenous Land Use Agreements (ILUAs) in September 2001. The Committee found
that NTRBs play a critical role in the negotiation of ILUAs, but that they are
hampered by significant shortages of funds. As a result, they have been forced
to rely on funding assistance from proponents as well as state and local
governments. Accordingly, the Committee recommended an increase in funding to
NTRBs. The Committee also noted difficulties that NTRBs have in securing
qualified and experience staff to manage the processes for which the bodies are
responsible.[4]
Prosser report
1.14
In August 2003, the House of Representatives Standing
Committee on Industry and Resources tabled its report on resource exploration
in Australia.
The main findings of the report with respect to NTRBs were that current native
title processes are leading to considerable delays, expense and uncertainty in
determining mining applications; and a significant cause of these problems is
competing and overlapping native title claims. Accordingly, the report
recommended that NTRBs be provided with additional funding, and that it be
targeted and limited to support activities that facilitate negotiation
processes.[5]
PJC report on the effectiveness of
the NNTT
1.15
The PJC on Native Title published its report on the
effectiveness of the National Native Title Tribunal in December 2003. The
Committee noted that NTRBs have central responsibility for the resolution of
overlapping claims and intra-Indigenous disputes. In this context the Committee
explored the issues of duplication in the roles of the NNTT and representative
bodies, particularly in relation to the registration of claims and mediation.
In relation to resourcing, the Committee recommended that a further inquiry be
conducted into the work demands and funding of NTRBs.[6]
ATSI Social Justice Commissioner reports
1.16
Since 1994, the Aboriginal and Torres Strait Islander
(ATSI) Social Justice Commissioner has published an annual report into the
functioning of the native title system. The 2001 report examined the role and
functioning of NTRBs in some detail, highlighting funding shortfalls in
particular. In the 2003 Native Title Report, the Commissioner briefly examined
the operation of NTRBs and identified under-funding as undermining the
agreement-making process. In the 2004 Native Title Report, the Commissioner
examined how native title can be utilised to improve the economic and social
conditions of Indigenous people.
Reforms to native title
1.17
In September 2005, the Attorney General announced a
package of proposed reforms to the native title system, the aim being to
improve the performance of the native title system. The reforms focus on
measures that encourage the resolution of native title issues through agreement
making in preference to litigation.
1.18
The reform proposals include:
-
measures to improve the effectiveness of NTRBs;
-
amendments to the guidelines of the native title
respondents' financial assistance program;
-
an examination of the current structures and processes of
Prescribed Bodies Corporate;
-
a review of the claims resolution processes to
consider how the NNTT and the Federal court can work more effectively in
managing and resolving native title claims;
-
technical amendments to the Native Title Act to
improve existing processes for native title litigation and negotiation; and
-
increased consultation with state and territory
governments to encourage more transparent practices in the resolution of native
title issues.[7]
The above measures as they relate to representative bodies
are discussed in the report.
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