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The Tribunal's work in 2019-20

General Overview

Information about statutory functions, trends and quantitative data relating to services provided by the Tribunal and the Registrar is detailed below.

Functions of the Tribunal

Future acts

A primary function of the Tribunal is the resolution, by mediation or arbitration, of issues involving proposed future acts (generally, in practice, the grant of exploration and mining tenements) on land where native title has been determined to exist, or where native title might exist.

Expedited procedure objection applications and inquiries

Future act determination applications, negotiation, good faith requirements and inquiries

Expedited procedure objection applications and inquiries

Under s 29(7) of the Act, the Commonwealth government or a state or territory government may assert that the proposed future act is an act that attracts the expedited procedure (i.e. that it is an act which will have minimal impact on native title) and, as such, does not give rise to procedural rights to negotiate which would otherwise vest in native title parties. If a native title party considers that the expedited procedure should not apply to the proposed future act, it may lodge an expedited procedure objection application (objection application) with the Tribunal.

A total of 1270 objection applications were lodged during the reporting period, 39 more than in the previous year. The number of active applications, at the end of the reporting period, was 534. This was 28 per cent less than in the previous year, a real reduction in the number of active matters, particularly as the volume of lodged objections was slightly above that of 2018–19. The reduction is attributable in part to the Tribunal’s new procedures for the management of objection applications in Western Australia. More than 500 objections were withdrawn after agreement was reached between the native title party and the relevant proponent. A further 345 objection applications were finalised by withdrawal of the tenement applications by the proponent.

There were 127 objection applications determined during the reporting period, over twice the number in the previous year. The expedited procedure was determined to apply on 57 occasions, and on 70 occasions, the expedited procedure was determined not to apply. The increase in determinations is also attributable to the new procedures for managing objection applications in Western Australia.

An application to the Federal Court, seeking judicial review of a Tribunal decision concerning an objection application, was made during the reporting period. The decision of the Full Federal Court in Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 clarified the Tribunal’s responsibilities regarding the acceptance of future act applications.

As demonstrated in Table 5.2, Western Australia produces many more objection applications than does Queensland. This is due in part to policies adopted by the relevant state departments concerning the use of the expedited procedure.

Table 5.2: Number of applications lodged with the Tribunal in 2019–20

Future Act

NSW

NT

QLD

WA

Total

Objections to expedited procedure

0

3

87

1,168

1,270

Future act determination applications

1

0

2

11

14

Total

1

3

89

1,179

1,284

Future act determination applications, negotiation, good faith requirements and inquiries

If the expedited procedure does not apply, the parties must negotiate in good faith about the proposed future act. Any party may request Tribunal assistance in mediating among the parties in order to reach agreement. There were 39 requests made in the reporting period, a number in line with that for the previous reporting period.

The Act prescribes a minimum six-month negotiation period. After that time, any party to the negotiation may lodge a future act determination application. During the reporting period, 14 applications were lodged, in line with the number in the previous reporting period.

The Act requires that the parties negotiate in good faith concerning the proposed future act. If there has been a failure to negotiate in good faith by a party, other than a native title party, the Tribunal has no power to determine the application. If any party asserts that negotiations in good faith have not occurred, the Tribunal will hold an inquiry to establish whether or not that is the case, before determining the application.

During the reporting period, there were two ‘good faith’ determinations. In both of these matters, the Tribunal was not satisfied that the relevant parties did not negotiate in good faith and proceeded to determine the application. Thirteen future act determination applications were finalised during the reporting period. In six cases, the Tribunal determined that the future act may be done. In three of those cases, the application was not contested by the other parties. In five cases, the Tribunal determined that the act may be done, subject to conditions. The remaining future act determination applications were either withdrawn or dismissed, following agreement between the parties.

Assistance in negotiating an Indigenous Land Use Agreement

During the reporting period, the Tribunal received one assistance request pursuant to s 24CF, concerning a proposed area agreement in Queensland. This assistance is ongoing.

Other inquiries

In April 2019, Justice Robertson of the Federal Court made orders directing an inquiry pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and Subdivision AA of Division 5, Part 6 of the Act. The inquiry concerned five separate native title determination applications, covering an area extending from Port Douglas to Cairns and environs, and south to the Russell River in North Queensland. The President and Dr Paul Burke, a consulting anthropologist, were appointed as referees.

This inquiry was the first its kind conducted by the Tribunal. It proved to be an intensive exercise, requiring consideration of extensive anthropological reports, historical materials and expert evidence relating to occupation of the claimed areas by the pre-sovereignty society. The inquiry provided its final report in March 2020.

Functions of the Native Title Registrar

The Registers

The Registrar maintains three registers as follows:

The Register of Native Title Claims

Under s 185(2) of the Act, the Registrar has responsibility for establishing and keeping a Register of Native Title Claims. This register records the details of claimant applications that have met the statutory conditions for registration prescribed by ss 190A–190C of the Act. As at 30 June 2020, there were 138 claimant applications on this register.

The National Native Title Register

Under s 192(2) of the Act, the Registrar must establish and keep a National Native Title Register, recording approved determinations of native title.

As at 30 June 2020, a total of 484 determinations had been registered, including 84 determinations that native title does not exist.

Map 1 Determinations Map shows native title determinations as at 30 June 2020, including those registered and those not yet in effect.

Map 1: Determinations Map Map of Australia showing native title determination locations.

The Register of Indigenous Land Use Agreements

Under s 199A(2) of the Act, the Registrar must establish and keep a Register of Indigenous Land Use Agreements, in which area agreement, body corporate and alternative procedure ILUAs are registered. At 30 June 2020, there were 1336 ILUAs registered on the Register of Indigenous Land Use Agreements.

Map 2 Indigenous Land Use Agreement Map shows registered Indigenous Land Use Agreements as at 30 June 2020.

Map 2: Indigenous Land Use Agreement Map Map of Australia showing the location of Indigenous Land Use Agreements.

Claimant and amended applications: assistance and registration

Sections 190A–190C of the Act require the Registrar to decide whether native title determination applications (claimant applications) and applications for certain amendments to claimant applications, should be accepted for registration on the Register of Native Title Claims. To that end, the CEO and Principal Registrar provides the Registrar with a copy of each new or amended claimant application and accompanying documents filed in the Federal Court.

The Registrar considers each application against the relevant requirements of the Act. The Registrar may also undertake preliminary assessments of such applications, and draft applications, by way of assistance provided pursuant to s 78(1)(a) of the Act.

During the reporting period, the Registrar received 26 new claimant applications, eight fewer than the previous reporting year. In addition to new claims, the Registrar received 29 amended claimant applications. For the first time, the majority of new applications were filed in the Northern Territory. Over two-thirds of amended applications were filed in Queensland.

Although there was a reduction in the number of new claims received by the Registrar, the increase in amended applications saw a high volume of registration testing in the reporting period. There were 59 applications considered for registration, three fewer than the previous year. The number of decisions included the two requests for a Tribunal to reconsider a registration decision. Of the 59 decisions, 41 were accepted for registration and 18 were not accepted.

During the reporting period, 11 applications were subjected to preliminary assessment before filing with the Federal Court.

One application seeking judicial review of a decision not to accept an application for registration was filed with the Federal Court in the previous year, with the Court making orders in relation to that registration decision during this reporting period.

Table 5.3: Number of applications referred to or lodged with the Native Title Registrar in 2019–20

Native title determination applications

NSW

NT

QLD

SA

VIC

WA

Total

Claimant (new)

0

11

4

3

1

7

26

Non-claimant

5

0

2

0

0

0

7

Compensation

0

1

2

0

0

3

6

Revised native title determination

0

1

0

0

0

2

3

Total

5

13

8

3

1

12

42

Indigenous land use agreements

NSW

NT

QLD

SA

VIC

WA

Total

Area Agreements

2

3

11

2

0

2

20

Body Corporate Agreements

2

0

15

0

1

11

29

Total

4

3

26

2

1

13

49

Non-claimant, compensation and revised determination applications

The volume of non-claimant applications remained low, with five New South Wales applications and two Queensland applications.

Three revised determination applications were referred to the Registrar in the reporting period. Two applications were made in Western Australia and one in the Northern Territory.

The Registrar received six compensation applications during the reporting period, the largest number in a single year since 1999–2000. Three compensation applications were made in Western Australia, two in Queensland and one in the Northern Territory.

Indigenous land use agreements: assistance and registration

Under ss 24BG(3), 24CG(4) and 24DH(3) of the Act, the Registrar may provide assistance in the preparation of ILUA registration applications. Often, this assistance takes the form of pre-lodgment comments upon the draft ILUA and the application for registration. During the reporting period, assistance was provided on 81 occasions, generally in the form of mapping assistance, pre-lodgment comments and the provision of related information.

Under the Act, parties to an ILUA (whether a body corporate agreement, area agreement or alternative procedure agreement) may apply to the Registrar for inclusion on the Register of ILUAs. Each registered ILUA, in addition to taking effect as a contract among the parties, binds all persons who hold, or may hold, native title in relation to any of the land or waters in the area covered by the ILUA.

A total of 1366 ILUAs are currently on the Register of ILUAs, the majority of which are in Queensland. Broadly, the ILUAs deal with a wide range of matters including the exercise of native title rights and interests over pastoral leases, local government activity, mining, state-protected areas and community infrastructure such as social housing.

There was a decrease in the volume of decision making in the reporting year, with a total of 48 ILUAs considered for registration, 21 fewer than the previous year. Thirty body corporate and 18 area agreement ILUAs were accepted for registration and entered in the Register. These include the Taungurung Settlement ILUA, which is the subject of an application to extend time in which to seek judicial review of the decision.

Seven further matters were the subject of High Court appeals, which will be heard in the next reporting period.

Notification

During the reporting period, 47 native title determination applications were notified, compared with 62 in the previous reporting period. Of the 47, 30 were claimant applications, including the Millewa-Mallee Native Title Claim in Victoria. To assist the local community better to understand what native title means to them, the Native Title Registrar held an information session in Irymple for all those persons who had received a notice advising of the claim. This was the first time in many years that the Registrar has delivered a session in Victoria, reflecting the need to be attuned to the differing needs for native title education and/or information. The session was attended by the Victorian Government Solicitors Office, Department of Environment, Land, Water and Planning, and the CEO of the First Nations Legal and Research Services and Mildura Rural City Council, amongst others.

The remainder of the notifications were 10 non-claimant applications, four revised determination applications and three compensation applications.

A total of 48 ILUAs were notified during the reporting period.

Other forms of assistance

Assistance in relation to applications and proceedings

Section 78(1) of the Act authorises the Registrar to give such assistance as he or she thinks reasonable to people preparing applications and at any stage in subsequent proceedings. That section also provides that the Registrar may help other people in relation to those proceedings. During the reporting period, such assistance was provided on 211 occasions. As in previous years, many of the requests were for the provision of geospatial products and review of draft native title determination applications.

Searches of registers

Pursuant to s 78(2) of the Act, 1324 searches of registers and other records were conducted during the reporting period.

Geospatial Services

The 484 registered determinations as at 30 June 2020 covered a total area of approximately 3,130,051 square kilometres or 40.7 per cent of the land mass of Australia and approximately 137,254 square kilometres of sea (below the high water mark).

There were 11 conditional consent determinations; 10 in Western Australia and one in New South Wales that were still awaiting registration as at 30 June 2020. Upon registration, these applications will increase the area to about 3,316,012 sq km or 43.1 per cent of the land mass of Australia and approximately 142,046 sq km of sea (see Map 1: Determinations Map).

Registered ILUAs cover about 2,595,093 square kilometres or 33.8 per cent of the land mass of Australia and approximately 40,531 square kilometres of sea (see Map 2: Indigenous Land Use Agreement Map).