Output group 2 — Agreement-making

Output 2.1—Indigenous land use agreements

Description

This output category covers finalised ILUA negotiations and milestone agreements leading to the final agreement, where the Tribunal provided negotiation assistance.

ILUAs are agreements reached between people who hold, or claim to hold, native title in an area and people who have, or wish to gain, an interest in that area. There are three types of ILUAs: area agreements, body corporate agreements and alternative procedure agreements.

The ILUA scheme facilitates agreement-making by allowing a flexible and broad scope for negotiations about native title and related issues, including future acts. ILUAs are often negotiated to resolve issues during the mediation of native title determination applications.

People who wish to make an ILUA may ask the Tribunal for assistance in facilitating the agreement-making.

Performance

The performance indicators for ILUAs are:

Performance at a glance

Measure Estimate Result
Quantity 67 185
Quality Clients' perception of the agreement-making process
that their expectations were met 		See Table 5
Average price per unit 2.1(a) 2.1(b) 2.1(c) $51,135 (combined) $51, 135
$17,045
$7,673
Total price for output $3, 427,000 $2,592,000

* Note: Clients' perception of quality was measured for a number of criteria. As durability is assessed over time, durability measures are not available for this output as all of the agreements were completed during this financial year.

Comment on performance

Table 4 Quantity of ILUAs achieved by state or territory

Type of agreement ACT NSW NT QLD SA TAS VIC WA Total
2.1a Fully concluded ILUA and use and access agreement negotiations 0 1 0 16 0 0 1 1 19
2.1b Milestone agreements in ILUA negotiation outside NTDAs** 0 0 0 6 31 0 0 0 37
2.1c Milestone agreements in ILUA negotiation with NTDAs 0 1 2 30 90 0 1 5 129
Total 0 2 2 52 121 0 2 6 185

**native title determination applications

Table 4 shows a continuing trend during the reporting period for more ILUA negotiations generated from native title determination applications than ‘stand-alone' ILUAs. A number of reasons explain the Tribunal's diminishing role in providing negotiation assistance for stand-alone ILUAs. For example:

Table 5 Clients' perception of the quality of the agreement-making process as indicated by their satisfaction

Criteria Measure Satisfaction rate
Process Satisfaction with the Tribunal mediator's conduct and their experience of the process and its fairness 77%
Efficiency Cost and time effective, value from the outcome 77%
Empowerment Education of parties about the processes, and problem solving, and if the agreement-making process equips them to deal with disputes in the future 94%
Effectiveness Extent to which a settled outcome will be achieved 94%
Durability Extent to which the outcome endures over time N/A
Relationship Extent to which the negotiation process increases understanding and improves the relationship between the parties 97%

In all cases the majority of people surveyed found the Tribunal had met or exceeded their expectations for each criterion, apart from the durability of the outcome, which was not measured. For more information, see Accountability to clients.

2.1a Fully concluded ILUA negotiations

During the reporting period the Tribunal concluded negotiations for 19 ILUAs. This apparent increase over last year's performance (6) is a direct result of the introduction of the Tribunal's new output structure which came into effect in this reporting period. This output category includes concluded negotiations of stand-alone ILUAs as well as ILUAs generated from native title determination applications, which were previously included under the category ‘claimant, non-claimant and compensation agreements'.

Eighteen of the 19 concluded ILUA negotiations flow from agreement negotiations generated from native title determinations, with nine having a direct relationship to one of four consent determinations mediated by the Tribunal.

The stand-alone ILUA negotiation was for the development of a sea sponge farm within 21 small sea areas around the Palm Islands, 56km north-west of Townsville in Queensland (see the case study below).

Coolgaree Bay Sponge Farm ILUA— CASE STUDY

On 22 December 2006, the Tribunal registered the Coolgaree Bay Sponge Farm agreement on the Register of Indigenous Land Use Agreements. Reached at Palm Island in north Queensland between the Manbarra people and the project's proponents Coolgaree CDEP, the ILUA was facilitated by Tribunal member Graham Fletcher. It paves the way for potential jobs and economic returns for the Palm Island community. The Manbarra people agreed to the development of the sponge farm within 21 small sea areas around the Palm Islands, 56km north-west of Townsville. The agreement area also includes some land on Palm Island itself. With business advice from the State Development and Innovation Centre at Townsville, the project is based on research undertaken by the Australian Institute of Marine Science into sea sponges and aquaculture farming technology. If the sponge farm goes ahead, it will be the first in the world to be owned and managed by Indigenous people. It is expected to produce 500,000 sponges each year. The sponges are to be used in the cosmetic or ‘bath' sponge markets. The agreement also ensures that the sponge farm will respect the cultural heritage values of the traditional owners.

Pic caption: Among those celebrating the signing of the Palm Island sea sponge ILUA on 26 July 2005 were (from left): Walter Palm Island, Tribunal case manager Louise Casson, Annie Palm Island, Allan Palm Islan, and Tribunal member Graham Fletcher.

2.1b Milestone agreements in ILUA negotiations outside the mediation of native title determination applications

The milestone agreements achieved, under this limb of the output, reflect activity in Queensland and South Australia only. The larger proportion was in South Australia and reflects pastoral and fishing negotiations.

2.1c Milestone agreements in ILUA negotiations inside the mediation of native title determination applications

There was broad activity in the delivery of this output throughout the Tribunal's registries, with high areas of activity in Queensland and South Australia. In Queensland this is a reflection of the relationship between ILUAs and consent determinations of native title. In South Australia, the increased activity reflects the outcomes from two ongoing strategies:

Output 2.2—Native title agreements and related agreements

Description

This output category includes a range of agreements related to native title applications (claimant, non-claimant, compensation and revised applications) for which the Tribunal has provided mediation assistance to the parties.

These may be agreements to full consent determinations that provide for the recognition of native title or for alternative resolutions of claimant applications, as well as other agreements that fully resolve native title determination applications.

They also comprise agreements between parties that set the groundwork for more substantive outcomes in the future and may lead to the resolution of native title determination applications. These may be agreements on issues, process or frameworks.

This output category also includes agreements for compensation for the loss or impairment of native title and agreements that allow for, and regulate access by, native title holders to certain areas of land.

Performance

The performance indicators for native title agreements and related agreements are:

Performance at a glance

Measure Estimate Result
Quantity 274 421
Quality*   See Table 7
Average price per unit 2.2 a 2.2b 2.2c $ 51, 135 (combined) $51,135
$34,090
$9,703
Total price for the output $13,504,000 $8,750,000

*Note: Clients' perception of quality was measured for a number of criteria. As durability is assessed over time, durability measures are not available for this output as all of the agreements were completed during this financial year.

Comment on performance

Table 6 Number of agreements by state or territory

Type of agreement ACT NSW NT QLD SA TAS VIC WA Total
2.2a Agreements that fully resolve native title determination applications 0 1 0 2 0 0 3 3 9
2.2b Agreements on issues, leading towards the resolution of native title determination applications 0 3 19 106 16 0 7 25 176
2.2c Process/framework agreements 0 5 11 100 43 0 6 71 236
Total 0 9 30 208 59 0 16 99 421

Table 7: Clients' perception of the quality of the agreement-making process as indicated by their satisfaction

Criteria Measure Satisfaction rate
Process Satisfaction with mediator's conduct and their experience of the process and its fairness 100%
Efficiency Cost and time effective, value from the outcome 80%
Empowerment Education of parties about the processes, and problem solving, and equips them to deal with disputes in the future 81%
Effectiveness Extent to which a settled outcome will be achieved 94%
Durability Extent to which the outcome endures over time N/A
Relationship Extent to which the mediation process increases understanding and improves the relationship between the parties 91%

In all cases the majority of people surveyed found the Tribunal had met or exceeded their expectations for each criterion, apart from the durability of the outcome, which was not measured. For more information, see Accountability to clients.

In the reporting period, there were fewer consent determinations than estimated but the strong agreement-making environment is evident in the number of agreements achieved that deal with issues, or which set out process or frameworks for mediation.

2.2a Consent determination and any other agreement which fully resolves the native title determination application

The forecast figure (21) was not achieved in this financial year as agreement-making activities took longer than planned.

However, while the output figure may be lower than forecast, a significant first was achieved in Victoria, with the Wimmera determinations of native title. The resolution of the three Wimmera applications also included the negotiation of an ILUA with the Victorian and Australian Governments. This approach shows an increasing reliance upon the combination of determination and ILUA to resolve an application.

2.2b Agreements on issues, leading towards the resolution of native title determination applications

Consistent with previous reporting periods, the Tribunal has been involved in a wide range of agreement-making, where the parties have reached agreement on a diverse range of issues. The high number achieved, particularly in Queensland, is an indicator that several applications are close to resolution through consent determinations.

In Western Australia, the Tribunal played a key role in the North West Goldfields Land Summit in October 2005. The three-day event was the culmination of many months of work by the Goldfields Land and Sea Council and the Tribunal. It led to claimants reaching agreements to resolve 29 overlaps.

2.2c Process/framework agreements

Nationally there was a high number of process/framework agreements over issues encountered during the course of negotiations. These agreements were achieved either through agreed Tribunal initiatives or in response to Federal Court directions.

The following are examples of Tribunal initiatives:

Output 2.3—Future act agreements

Description

This output category includes agreements that allow a future act to proceed where Tribunal members or staff have assisted with mediation, as well as milestones reached during the mediation of a future act application and leading to the final agreement.

The Tribunal only mediates when it is requested to do so by any one of the negotiation parties, or where the President has directed that a conference be held to resolve issues related to an inquiry conducted by the Tribunal.

The two main provisions in the Act under which the Tribunal may provide mediation assistance in future act matters are:

s. 31, which affects parties in cases where the right to negotiate applies; and

s. 150, which allows the parties to request, or the President of the Tribunal to direct, that a conference be conducted to help resolve outstanding issues relevant to future act inquiries already before the Tribunal, i.e. either an expedited procedure application or a future act determination application.

Performance

Performance indicators for future act agreements are:

Performance at a glance

Measure Estimate Result
Quantity 63 144
Quality*   See Table 9
Price per unit 2.3a 2.3b $37,424 (combined) $37,424
$19,062
Total price for the output $2,358,000 $4,269,000

*Note: Clients' perception of quality was measured for a number of criteria. As durability is assessed over time, durability measures are not available for this output as all of the agreements were completed during this financial year.

Comment on performance

Table 8 Future act agreements by state or territory

Type of agreement ACT NSW NT QLD SA TAS VIC WA Total
2.3a Agreements that fully resolve future act applications 0 1 4 7 0 0 2 69 83
2.3b Milestones in future act mediations 0 0 12 16 0 0 0 33 61
Total 0 1 16 23 0 0 2 102 144

Table 9 Clients' perception of the quality of the agreement-making process as indicated by their satisfaction

Criteria Measure Satisfaction rate
Process Satisfaction with mediator's conduct and their experience of the process and its fairness 100%
Efficiency Cost and time effective, value from the outcome 71%
Empowerment Education of parties about the processes, and problem solving, and equips them to deal with disputes in the future 92%
Effectiveness Extent to which a settled outcome will be achieved 77%
Durability Extent to which the outcome endures over time N/A
Relationship Extent to which the mediation process increases understanding and improves the relationship between the parties. 94%

For further information about this performance indicator see Accountability to clients.

2.3(a) Agreements that fully resolve future acts

Table 8 shows that the Tribunal's performance has substantially exceeded its estimated performance outputs for this financial year, particularly in Western Australia . This is a reflection of the current agreement-making environment stimulated by the resources boom referred to in the overview of current applications.

This reporting period saw the Regulations to the amended Mining Act 1978 (WA) enacted which led to the Western Australian Government increasing its s. 29 notifications in order to alleviate the backlog of exploration and mining tenement applications. This in turn has resulted in an increase in the use of the Regional Standard Heritage Agreements to resolve issues relating to exploration titles, as well as increased referrals of matters to the Tribunal for mediation assistance.

The number of mining/exploration tenement applications made to the State of Victoria almost doubled those made during the last financial year, leading to a marked increase in the number of tenements granted during this reporting period; however, only two agreements were finalised with the assistance of the Tribunal. Whilst an increasing number of tenement applications were the subject of successful ILUAs, the majority of tenements granted during this reporting period occurred as a result of agreements reached through the right to negotiate process and without the assistance of the Tribunal.

In New South Wales there was a decline in the number of future act applications notified under the right to negotiate provisions during the reporting period (14 compared to 22 last year) with parties leaning more to non-claimant applications to validate future acts under the protection of s. 24FA.

Like Western Australia, Queensland is experiencing a resources boom and notification of future act matters under the right to negotiate provisions increased dramatically during the reporting period, leading to seven agreements being lodged with the Tribunal, a significant increase on the previous year. Parties have recognised that involving the Tribunal early in the negotiation process results in quicker agreements being achieved.

In the Northern Territory there was a significant increase in the advertising of matters under the right to negotiate provisions, although applications for Tribunal assistance have declined. Again, a resources boom has been the driver of this increased activity. Another factor has been an increase in the number of mediation assistance requests in the Central Land Council area. This has led to a number of successful Tribunal mediations, and in particular of four matters culminating in agreements for exploration of uranium during the reporting period. For more information, see the case study below.

In South Australia negotiation of state-wide ILUAs continues to be the major focus of parties. Whilst there has been some right to negotiate activity in response to s.29 notices advertising petroleum-related applications, this has not led to any significant involvement of the Tribunal, as parties work towards developing conjunctive agreement templates rather than using the future act processes of the Tribunal.

Successful mediation under s.150 in the Territory — CASE STUDY

The Tribunal was asked to facilitate a mediation between the Walpiri People, represented by the Central Land Council (CLC), and uranium explorer Energy Metals Ltd in August 2005. The Walpiri People had lodged objections to the Northern Territory Government granting four exploration licences covering land near the Tanami track, between Alice Springs and Halls Creek. They were concerned about risks of contamination to their community and their environment, after a recent local debate about uranium mining and nuclear waste facilities in the area.

The mediation was successful, with the objections withdrawn within four months. Tribunal state manager Tony Shelley said that the fact that all parties understood and agreed to the set processes for the mediations was a key factor in this success. On-country meetings were held at Yuendumu and Tilmouth Well over two days and two nights in October 2005 facilitated by Tribunal member Dan O'Dea. Leading up to the meetings, the Tribunal liaised with the exploration company representatives and the Northern Territory Government Uranium Officer to prepare presentation materials and methods. It also worked closely with the CLC on logistical matters and cultural requirements. As a result, there was a high emphasis on visual images (photographs, maps using satellite imagery and graphs) and oral presentations during the meetings. With the help of interpreters made available by the CLC, experts answered the Walpiri People's questions and concerns.

As people worked together, they developed good working relationships. This enabled them to resolve outstanding issues in the weeks following the on-country meetings and to ultimately reach a comprehensive agreement in December 2005, when the objections were withdrawn.

In summary the mediation worked because there was:

Pic caption: Member Dan O'Dea (background left) and state manager Tony Shelley listen to the Walpiri Elders, with David Young, CLC mining advisor (foreground), at Tilmouth Well Station near Yuendumu, north-west of Alice Springs, 5 October 2005 .

2.3(b) Milestones in future act mediations

The Tribunal exceeded its estimates, specifically in the Northern Territory where the estimated figure was more than doubled.

As mentioned in the overview of active applications, there was a steady increase in mediation requests, which is reflected in the number of milestones recorded during this reporting period.

The increase in referral of matters to the Tribunal for mediation assistance and the parties' desire to reach agreement across a range of issues has been borne out by the number of milestones recorded.