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The Tribunal's year in review

It is said that, ‘The past is a foreign country; they do things differently there’1.That proposition currently describes the Tribunal’s view of our operations in the first half of the reporting period from our current position at the end of the second half of that period. The COVID-19 pandemic has been the impetus for substantial changes in our operations. We are hopeful that such changes, brought about by necessity, may prove to be of long term value. If so, 2019–20, seen in retrospect, may be noted for its achievements rather than its difficulties.

The first part of the reporting period replicated the external operating environment of the previous year: pending legislative changes to the Native Title Act, and the expectation of shifts in the volume of native title determination applications, notably an increase in compensation applications. Internally, our performance was strong, particularly in the areas of service improvement, strategic corporate plan initiatives, and planning for the foreseeable changes arising from the anticipated legislative amendments.

The outbreak of COVID-19 and consequent declaration of a pandemic behoved the Tribunal to do everything it could to protect the safety and wellbeing of staff, stakeholders and the community at large, while performing its functions, necessitating the identification and adoption of new ways of working. The Tribunal responded to this imperative by working with the other jurisdictions comprising the broader Federal Court entity and Heads of Jurisdiction.

The Tribunal continued to operate, with most staff members working from the relative safety of their own homes. This arrangement was made possible by the recent reorganisation. The simpler and more efficient team structures, together with direct reporting lines between staff, managers, the Registrar and ultimately, the President and Members, facilitated our doing so. The ability to work remotely was facilitated by the Herculean efforts of the IT section in providing secure online access to Tribunal systems and platforms. All changes to the Tribunal’s way of operating were communicated directly to the impacted stakeholders and/or by regular updates to the Native Title Tribunal’s website at http://www.nntt.gov.au/Pages/Coronovirus-(COVID-19)-outbreak.aspx.

Implications for our work

Pragmatic decisions had to be made quickly. In the future acts context, the Tribunal responded to the COVID-19 measures by issuing a direction, allowing parties affected by those measures to provide a statement to that effect, which statement operated to suspend programming orders. In June 2020, the Tribunal began to relist such matters, where appropriate. As a result, there may be overall delays in the resolution of some matters. The extent of this delay will become evident in the next reporting period. It is also likely that the flow of work will be, for some time, uneven.

In Western Australia, the Tribunal initiated a series of ‘online’ roundtable meetings of key stakeholders, including representative bodies, peak industry groups and representatives of the State, to discuss the effect of the preventative measures on future act negotiations and matters before the Tribunal. The roundtable meetings, held in response to COVID-19, have reinforced our commitment to work with key stakeholders to respond to their needs, and those of the native title system more broadly. It is anticipated that these meetings will continue into the next reporting period as a platform for ongoing stakeholder engagement.

The Tribunal has utilised communication technologies, such as teleconferencing and video conferencing platforms, to ensure continuity of our mediation and dispute resolution services. The increased utilisation of video conferencing solutions is likely to yield ongoing improvements in the Tribunal’s operations.

The difficulties created by COVID-19 caused the delay of the Tribunal’s consultation with stakeholders concerning the new process for the management of objection applications in Western Australia. The process, introduced in May 2019, is designed to realign the Tribunal’s administrative processes with the intent of the Act, with the aim of expediting the resolution of such objections. An internal review of the new procedures was undertaken in December 2019. A stakeholders’ forum was due to be held in Perth in March 2020, but was postponed. The Tribunal now intends to hold the forum in late 2020.

The Tribunal’s educational activities have been significantly limited as a result of COVID-19, largely because of travel restrictions. The Registrar’s function has also been made more difficult. The Registrar has a statutory obligation to advertise notifications in newspapers and other publications, circulating in relevant areas. As a result of the emergency, the publication of some regional newspapers has been suspended. It has therefore been necessary to use alternative local newspapers or, where none is available, the more expensive state-based newspapers.

Staff capacity

The social distancing and travel restrictions imposed by COVID-19 led the Tribunal to reconsider how relevant staff members could undertake planned mediation accreditation training. This training followed on from Indigenous dispute resolution and conflict management training delivered in the previous year. The aim was to enable staff to meet the demands arising from the anticipated new dispute resolution function for the Tribunal. In the event, the staff participated in online training, delivered over three days. This was a successful exercise, with all staff completing the training and being accredited as mediators. Other online training, and attendance at online seminars was encouraged. The Tribunal also held a series of internal workshops, designed to build staff capacity and reinforce existing skills in the areas of research and case management.

Cultural acknowledgement

The Tribunal has continued to foster understanding of, and respect for Indigenous culture. At the end of the reporting period, a new Reconciliation Action Plan for the Federal Court of Australia entity was close to completion. The Reflect Reconciliation Action Plan 2020–21 was developed by the Court with support from the Tribunal.

Tribunal staff hosted, or participated in a variety of events for NAIDOC Week 2019, both externally and internally. At first it seemed that in 2020, we would be unable to participate in any events, or that participation levels would be low. However, embracing the theme for Reconciliation Week ‘In this together’, we collaborated with the other components of the Federal Court entity, using an online channel to acknowledge and share information about Reconciliation Week.

External factors

The Government’s intention to legislate reforms to the Native Title Act has been a feature of the previous and current reporting periods. The exposure draft of the Native Title Legislation Amendment Bill 2018 canvassed a new dispute resolution function for the Tribunal. A new Bill was introduced into Parliament on 21 February 2019. It progressed as far as the second reading in the House of Representatives, before Parliament was prorogued for the general election. The Bill lapsed, but was subsequently re-introduced into Parliament on 17 October 2019. Strong support remains for the proposed reforms. The Bill was referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 28 February 2020. On 4 December 2019, the Senate granted an extension of time for reporting until 16 April 2020. On 26 March 2020, the Senate granted a further extension until 19 August 2020.