Output group 3 – Decisions

Output 3.1—Registration of native title claimant applications

Description

This output category relates to the decisions made by the Native Title Registrar when considering native title claimant applications for registration on the Register of Native Title Claims.

Indigenous Australians who are seeking a determination that native title exists over a specified area of land or waters make a claimant application to the Federal Court. The Federal Court refers each application to the Native Title Registrar. Under the Act, the Registrar is required to apply the registration test to most claimant applications. The test is comprised of a series of merit and procedural conditions.

If an application satisfies all the registration test conditions, then it must be accepted for registration and placed on the Register of Native Title Claims. Once registered, the applicant (the registered native title claimant) gains certain procedural rights under the Act, such as the right to negotiate about certain future acts.

If the application does not satisfy all of the conditions of the registration test and is not accepted for registration, the applicants can either seek a review of the Registrar 's decision by the Federal Court or change their application to address the conditions it did not meet. Once the application is amended and referred to the Registrar , the registration test is reapplied. Where an application is amended (e.g. to reduce the area covered by it), the registration test is applied to the amended application.

Performance

The performance indicators for registration of native title applications:

Performance at a glance

Measure Estimate Result
Quantity 48 47
Quality 70% of decisions completed within 6 months of receipt of the original or amended application submitted for registration 77% of decisions completed within 6 months of receipt of the original or amended application submitted for registration
Average price per unit $ 51,517 $ 51,915
Total price for output $2,474,000 $2,440,000

Comment on performance

The plateauing of registration test decisions continued into the current reporting period. Table 10, below, shows that the majority of decisions were made in relation to Queensland applications, followed by those in Western Australia. These applications were either newly filed applications or existing applications that had been amended. In the reporting period 12 applications were undergoing the registration test for the second (10) or third (2) time.

Of the 47 decisions made:

Table 10 Number of registration test decisions by state or territory 2005–06

State Accepted Not Accepted Not Accepted – Abbreviated Total
ACT 0 0 1 1
NSW 4 1 0 5
NT 4 1 0 5
QLD 9 7 4 20
SA 1 0 1 2
TAS 0 0 0 0
VIC 0 0 0 0
WA 8 4 2 14
Total 26 13 8 47

Parties may seek a review of the Registrar 's registration test decisions under the Act or under the Administrative Decisions (Judicial Review) Act 1997 (Cwlth) . During the reporting period there was one application seeking review of a registration decision in Wakaman People No 2 v Native Title Registrar and State of Queensland QUD 115/ 2006 which was due to be heard by the Federal Court in the next reporting period.

Timeliness of decisions

The performance measure for this output was revised, as part of the Tribunal output framework, to more accurately reflect the time it can take to make a decision.   The  more accurate timeframe, together with the registration test being applied by a team dedicated to the task (National Registration Delegates), meant the performance target was exceeded (77% ).   Where statutory timeframes required the test to be applied within a shorter timeframe (i.e. in response to a s. 29 or equivalent notice) that shorter timeframe was met.

Output 3.2—Registration of indigenous land use agreements

Description

This output category covers the Native Title Registrar 's decisions whether to register ILUAs on the Register of Indigenous Land Use Agreements.

Parties to ILUAs apply to the Native Title Registrar to register their agreement on the Register of Indigenous Land Use Agreements. Under the Act, each registered ILUA has effect as if it were a contract among the parties (if it does not already have that effect) and binds all persons who hold native title for the area to the terms of the agreement whether or not they are parties to the agreement.

To process an ILUA application the Registrar must:

If requested, the Tribunal can assist the parties to negotiate the withdrawal of an objection to the registration of an area agreement or an alternative procedure agreement. In some circumstances, the Tribunal can inquire into an objection to the registration of an alternative procedure agreement.

Performance

The performance indicators for registration of ILUAs are:

Performance at a glance

Measure Estimate Result
Quantity 66 68
Quality* 90% of decisions completed within six months of receipt of the application submitted for registration, where there is no objection or other bar to registration 94% of decisions completed within six months of receipt of the application submitted for registration, where there is no objection or other bar to registration
Average price per unit $ 44,946 $44,823
Total price for the output $2,967,000 $3,048,000

*Four applications received an objection/bar to registration and were therefore not included in the performance assessment.

Figure 4 Map of indigenous land use agreements at 30 June 2006 [near here]

Comment on performance

Table 11 ILUAs lodged or registered by state and territory 2005-06

  ACT NSW NT QLD SA TAS VIC WA Total
ILUAs lodged 0 1 2 19 4 0 12 4 42
ILUAs registered 0 1 34 19 4 0 8 2 68

The high number of ILUAs registered this year and shown in Figure 5 reflects both the success of agreement-making and the possibilities that can be achieved. The 68 registrations are the highest ever registered in a reporting period, and the significant milestone of 200 registered ILUAs was both reached and passed with 250 ILUAs registered on the Register of Indigenous Land Use Agreements at the end of the reporting period.

One application for review of the Registrar 's decision was made over the Saltwater ILUA in Kemp v Registrar of NNTT NSD 35/2006 but the decision was reserved until the next reporting period.

An overview of the ILUAs registered in this period indicates that:

The balance of registered ILUAs provided for:

Figure 5 Number of ILUA registrations per financial year

Timeliness

The performance measure for this output was revised as part of the Tribunal output framework, to more accurately reflect the timeliness of the decisions made. The increased number was a reflection that this particular performance measure had been consistently exceeded in previous reporting periods. The more accurate timeframe, together with the registration decision being made by a team dedicated to the task (National Registration Delegates), meant the performance target was not only achieved but again exceeded (94%).

Output 3.3—Future act determinations and decisions whether negotiations were undertaken in good faith

Description

This output category includes determinations made by the Tribunal that a future act may or may not be done and, if the future act may be done, whether it is to be done subject to conditions or not. It also includes decisions whether negotiations to reach agreement about future act determination applications have occurred in good faith.

Any party to the future act application may apply to the Tribunal for a determination, provided at least six months have passed since the notification day contained in the s. 29 notice and there have been negotiations in good faith during that period. If a party contests that negotiations in good faith have occurred, then the Tribunal must hold a preliminary inquiry to establish whether the negotiations have happened in good faith, in which case it has jurisdiction to proceed with the substantive inquiry.

Performance

Performance indicators are future act determinations and decisions whether negotiations were undertaken in good faith are:

Performance at a glance

Measure Estimate Result
Quantity 47 80
Quality* 80% of future act determination applications finalised within six months of the application being made 97% of future act determination applications finalised within six months of the application being made
Average price per unit $ 19,723 $19,075
Total price for the output $927,000 $1,526,000

*Six decisions related to whether negotiation in good faith requirements were satisfied and were therefore not included in the quality performance indicator.

Comment on performance

Table 12 Future act determination application outcomes (by tenement) 2005-06

Tenement outcome Queensland South Australia Western Australia Total 2005-06
Application withdrawn* 7 0 66 73
Consent determination—future act can be done 0 0 62 62
Consent determination—future act can be done subject to conditions 2 1 3 6
Determination—future act can be done 1 0 5 6
Dismissed—s. 148(a) no jurisdiction* 0 0 2 2
 Total 10 1 138 149

* Not counted for output reporting purposes.

The strong performance here can be related directly to the productive working relationships being developed and maintained by parties during this reporting period. The majority of future act determinations (covering 68 tenements out of a total of 74) have been by consent. Table 12 shows that applications covering some 66 tenements in Western Australia were withdrawn (note that 65 tenements were covered by one application). All the applications were withdrawn because agreement was reached prior to the Tribunal making its determinations, again emphasising the strong agreement-making environment.

Following the trend nationally, South Australia also recorded a future act consent determination during the reporting period. The parties had reached agreement but due to logistical reasons not all the signatures could be obtained to the deed, hence the application to the Tribunal for assistance.

In Western Australia the increase in lodgement of future act determination applications has been, in part, due to parties utilising Tribunal consent determinations especially where logistical problems prevent agreements being signed-off, or where some named applicants refuse to sign a State Deed. In addition, consent determinations are also seen as a more efficient means of clearing the backlog of exploration and prospecting licences which were referred from the expedited process into the right to negotiate process once agreement had been reached, as compared to signing-off multi-party agreements.

Output 3.4—Finalised objections to the expedited procedure

This output category concerns the processing and finalisation by the Tribunal of these objections.

The expedited procedure is a fast-tracking process for the grant of certain ‘minimal impact' tenements and licences which, under s. 237 of the Act, are considered not likely to:

The expedited procedure is triggered when a government party (in a public notice) asserts that the expedited procedure applies to a tenement application and, therefore, the right to negotiate does not apply. The Act includes a mechanism for registered native title parties to lodge an objection to this assertion.

The expedited procedure is used in Western Australia, the Northern Territory and Queensland. Other states either use their own alternate state provisions to process tenements considered to have minimal interference or impact, or opt not to use the expedited procedure provisions.

Performance

The performance indicators for objections to the expedited procedure are:

Performance at a glance

Measure Estimate Result
Quantity 1,096 1,387
Quality 80% of objections resolved other than by agreement finalised within nine months of the s. 29 closing date 89% of objections resolved other than by agreement finalised within nine months of the s. 29 closing date
  70% of objections resolved by agreement finalised within nine months of acceptance 72% of objections resolved by agreement finalised within nine months of acceptance
Price per unit $ 3,207 $3,187
Total price for the output $3,516,000 $4,420,000

*Sixty-nine objections were resolved by ‘other' processes and were therefore not included in the performance assessment. ‘Other' processes include non-acceptance of the objection application and withdrawal of the objection application prior to acceptance of it by the Tribunal.

Comment on performance

Whilst all states/territories use the right to negotiate provisions under the Commonwealth scheme where appropriate, only Western Australia , Queensland and the Northern Territory use the expedited procedure process. The anticipated reductions in this area in Western Australia again failed to materialise during this reporting period and had a major impact upon the Tribunal's output under this category. For the second year in a row, the recorded outputs considerably exceeded estimates.

Table 13 Objection application outcomes (by tenement) 2005–06

Tenement outcome Northern Territory Queensland Western Australia Total 2005–06
Consent determination— expedited procedure applies 0 0 5 5
Consent determination —expedited procedure does not apply 0 0 10 10
Determination —expedited procedure applies 0 0 10 10
Determination—expedited procedure does not apply 0 0 3 3
Dismissed—s.148(a) no jurisdiction* 0 6 14 20
Dismissed—s.148(a) tenement withdrawn* 0 11 108 119
Dismissed—s.148(b) 0 1 128 129
Expedited procedure statement withdrawn—s.31 agreement lodged 0 49 0 49
Objection not accepted 0 1 1 2
Objection withdrawn— agreement 5 48 931 984
Objection withdrawn—no agreement 0 50 78 128
Objection withdrawn prior to acceptance 0 3 64 67
Tenement withdrawn* 0 11 0 11
Tenement withdrawn prior to acceptance* 0 0 3 3
 Total 5 180 1,355 1,540

* Not counted for output reporting purposes.

Activity in Queensland was slightly lower than in the previous financial year, due mainly to a decrease in the number of advertisements under s.29 by the State Government. It is anticipated that advertisements will increase during the next reporting period.

Due to the recent change in the policy with regard to uranium exploration by the Central Land Council, there was an increase in activity in the Northern Territory during this reporting period. For further information, see the case study.

In Western Australia the expected performance level for this output was significantly exceeded this year. There are three main reasons for this increase:

In addition, the Tribunal moved to conclude the adjournment of objections in the Geraldton and Pilbara regions, which had been in abeyance since mid–2003 whilst awaiting development of the Regional Standard Heritage Agreements.