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Annual Report 2007-08 Output 1.6

Legal services and policy advice on native title

Summary

The Territories and Native Title Division is responsible for Output 1.6. By providing legal and policy advice to the Attorney-General and the Australian Government, the Native Title Unit contributed to ensuring an equitable and accessible system of federal civil justice. We are also responsible for assisting the Attorney-General to administer those parts of the Native Title Act 1993 (NTA) that are not administered by the Minister for FaHCSIA. The Native Title Unit continued its role in managing the Commonwealth’s participation in native title matters, in educating other Government departments and agencies to assist with their compliance with the Native Title Act, and in effectively managing stakeholder consultation. We have also been involved in a number of whole-of-government initiatives to increase economic opportunities for Indigenous Australians.

Major achievements

Resolution of native title

Policy direction

On 29 February 2008, the Attorney-General called for all parties, including the Commonwealth, to take a new approach to native title and committed to achieving real outcomes from the native title process. We have worked to implement this new policy direction and encourage native title parties to embrace the possibilities the native title system can offer by adjusting attitudes and developing more flexible and broader outcomes.

To assist in the resolution of native title claims, the current Government modified Australian Government policy regarding recognition of native title rights in the sea. That policy had restricted recognition generally to within three nautical miles seaward of the low water mark. Where supported by evidence, the Government will now recognise native title to the outer limits of the modern territorial sea (generally 12 nautical miles).

Flexible approach to resolving claims

As part of pursuing resolution of claims through agreement rather than litigation, the Commonwealth made an open offer to settle the Torres Strait Regional Sea Claim, one of the most significant claims in which it is involved.

The Commonwealth is also actively working towards resolution of a number of claims, including Balangarra, Dambimangari, Kuuku Ya’u, Nyangumarta, Thalanyji and Uunguu.

The Commonwealth has also participated in pre-claim communication between experts in the Kokatha overlap area.

Court decisions

The Commonwealth participated in a relatively small number of court hearings and decisions during 2007–08.

In the Full Federal Court the Commonwealth unsuccessfully appealed the decision in Kokatha (Clifton). The Full Federal Court held that an Indigenous respondent to a native title claim can not obtain recognition of any native title rights they may have in a claim area. Rather, the Court’s jurisdiction is limited to determining whether native title exists over a given area to those persons or groups who formally bring a claim under the NTA.

The Full Federal Court delivered decisions in matters taking in Broome (Rubibi) and metropolitan Perth (Single Noongar), which had been heard in the previous financial year. While the Rubibi claimants were ultimately successful, the Full Court overturned the original decision in Single Noongar and found that the claimants had not established native title in the claim area.

The Attorney-General intervened in High Court proceedings that considered the Northern Territory Government’s ability to compulsorily acquire and extinguish native title (Griffiths v Minister for Land, Planning and Environment). The acquisition was intended to facilitate the grant of a lease to a private entity for commercial purposes and native title rights were the only rights acquired. Consistent with the Attorney-General’s submissions, the High Court held that the acquisition extinguished native title.

At the request of the Registrar of the National Native Title Tribunal, the Attorney-General intervened in two registration test decision appeals: Fesl and Gudjala #2. In Fesl, Justice Spender found that the Registrar had exercised his powers correctly in removing a claim over the Glass House Mountains from the Register of Native Title Claims. Judgment in Gudjala #2 is reserved.

Native title reforms

The Department is working to progress the policy direction announced by the Attorney-General on 29 February 2008. The Native Title Unit is also continuing to develop subordinate legislation to give effect to previous native title reforms.

Native title system coordination and consultation

Stakeholder consultation

The Native Title Unit continued to liaise regularly and strengthen relationships with native title system stakeholders to obtain their input into the delivery of efficient and effective native title justice.

The Unit chairs and provides secretariat support for the Native Title Consultative Forum, which meets three times a year and comprises representatives of several Australian Government agencies, State, Territory and local Governments, the Federal Court, the National Native Title Tribunal, native title representative bodies, the Human Rights and Equal Opportunity Commission (HREOC) and pastoralist, mining, fishing and petroleum industries.

We attended numerous meetings to increase stakeholder dialogue. These included Prescribed Bodies Corporate meetings with the Australian Institute of Aboriginal and Torres Strait Islander Studies and other stakeholders, the National Native Title Tribunal/Federal Court user group meetings, the Queensland Native Title Committee liaison meeting, the HREOC Social Justice Commission, and the Attorney-General’s NGO Forum on Domestic Human Rights.

Economic development

The Native Title Unit actively engaged in policy development initiatives to enable Indigenous people to leverage economic development opportunities from their native title rights and interests. Those initiatives included:

  • participating in a cross-portfolio steering committee developing an Indigenous economic development strategy to implement the Government’s Closing the Gap agenda
  • engaging with a Senior Executive Service task force, in particular with the Economic Participation and Welfare Reform subgroup, contributing to the COAG Working Group on Indigenous Reform
  • supporting the participation of the Secretary in the Secretaries’ Group on Indigenous Affairs with respect to native title issues, and
  • participating in an interdepartmental committee on the Home Ownership on Indigenous Land program.
2008 Review of native title system funding

The Native Title Unit chairs and provides secretariat support for the Native Title Coordination Committee (NTCC) which has reviewed native title system funding. The NTCC comprises representatives from this Department, the National Native Title Tribunal, the Federal Court and FaHCSIA. The NTCC identified system-wide issues and their funding implications, and developed recommendations which will be put to Government in preparation for the 2009–10 Budget.

Future acts

Future acts are Government acts such as the granting or renewal of leases or licences that impact on native title. They can be validly done only if processes in the Native Title Act are followed.

The Native Title Unit provided policy advice to the Attorney-General on future act implications for newly emerging industries. We also worked with departments and agencies to promote their observance of future act processes, and to ensure that their activities do not unnecessarily impact on native title rights and that native title agreements deliver sustainable economic development opportunities for native title parties.

The Unit provided advice on the legal and policy implications of specific projects including the acquisition of land for the proposed Australian Square Kilometre Array Pathfinder Telescope, the conservation of lands through the National Reserve System Program, the development of a tsunami early warning system, and a range of land-use proposals by the Department of Defence.

We advised on the implications of legislative initiatives such as the Northern Territory National Emergency Response Bill 2007. We contributed to State legislative and policy initiatives associated with the development of future acts to promote the coherence of the native title system.

The Native Title Unit conducted introductory native title seminars for Australian Government departmental officers.

Outlook

The Attorney-General will participate in the Native Title Ministers’ Meeting in July 2008, which has the theme Making native title work better. This meeting will give all Governments the opportunity to discuss the challenges and opportunities arising from the native title system and will provide a framework for action. We have prepared a comprehensive discussion paper for the meeting to engage with the States and Territories over the Australian Government’s new approach to native title.

The Native Title Unit will continue to promote and encourage all parties in the native title system to take a more flexible and practical approach to resolving native title issues.

We will also continue to assess and adjust our behaviour in native title matters, ensuring that the Australian Government takes a new approach in the claims to which it is a party and seek flexible and productive outcomes in accordance with Government policy. We will seek to ensure that negotiations achieve practical and sustainable benefits for Indigenous people.

The Unit will finalise the reform package with the development of the required subordinate legislation.

We will progress funding bids and new policy proposals for the native title system arising from the Government’s decisions on the recommendations of the 2008 review of the funding and operation of the system.

The Unit will engage in the development and negotiations of Commonwealth–State financial assistance agreements to assist the more efficient resolution of native title.

We will continue to monitor the native title system, provide advice and assist other government agencies with their obligations under the Native Title Act, develop policy on native title and economic development opportunities for Indigenous people, and maintain and build on stakeholder relationships.

Performance indicators
Quantitative and qualitative

Output 1.6

Legal services and policy advice on native title

Activity

Performance indicator

Result

Policy advice provided to ministers Quantity   2006–07 2007–08
Submissions to ministers 212 289
Cabinet submissions 0 0
Ministerial correspondence* 212 207
Responses to questions on notice 0 0
Briefs 53 185
Speeches 1 1
Quality Advice to ministers provided within agreed timeframes Achieved
Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied
Advice provided to other agencies Quantity   2006–07 2007–08
Items of legal/policy/operational advice** 479 228
A high volume of advice was provided to other agencies, in written and oral form, including through participation in interdepartmental committees.
Quality Advice provided within agreed timelines Achieved

One stakeholder commented that legal and policy advices from the Native Title Unit were ‘timely and of an acceptable nature’.
Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Stakeholders indicated they were highly satisfied with the level of service provided.
FaHCSIA expressed their appreciation of a ‘close and effective relationship’ with the Native Title Unit.
Providing timely and sound advice and other support to the Attorney-General and the Government on native title issues Quality Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied
Providing legal services for the Attorney-General and the Government in relation to native title negotiations and litigation Quantity   2006–07 2007–08
Number of cases the Commonwealth is involved in 173 160
Indigenous Land use Agreement negotiations the Commonwealth is party to 3 3
Monitor, maintain and enhance the effective operation of the native title system

Managing stakeholder relationships and promoting Government native title policies
Quantity   2006–07 2007–08
Stakeholder relationship activities, including meetings and training sessions 39 124
The significant increase in stakeholder relationship activities is attributable to numerous factors, including a number of activities to promote the 2007 amendments to the NTA, more frequent meetings of the NTCC associated with the 2008 review of native title system funding, a high number of meetings about managing native title issues on the site for the square kilometre array radio telescope in Western Australia, and a general increase in workload for the Unit.

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

† Briefs include papers on current issues, possible parliamentary questions (new and updated) and meeting briefs.

‡ The number of briefs reported is the total number for the Territories and Native Title Division, covering outputs 1.6 and 3.1.

** The number of advices provided by output have been derived from the Department’s annual workload survey and represent a snapshot obtained by aggregating data from four separate one-week periods—two from parliamentary sitting periods and two from non-sitting periods.

Performance information for Output 1.6—administered items

Administered item

Performance indicator

Result

Financial assistance to States and Territories under Part 9 of the Native Title Act 1993 Quality Funds provided in accordance with the Native Title Act and any relevant agreement or arrangement Not applicable
No funds sought or provided.
Budget price: nil Actual price: nil
Payments for compensation under Part 2 of the Native Title Act 1993 Quality Funds provided in accordance with legislation and any relevant agreement or arrangement Not applicable
No funds sought or provided.
Budget price: nil Actual price: nil