President’s Overview

The year in review

Introduction

Last year I noted that we have been through, and perhaps are near the end of, a ‘pioneering’ period when the law has been clarified on major native title issues and on numerous technical aspects of the Native Title Act 1993 (Cwlth)(the Act). I also noted the introduction of the Tribunal’s new outcome and output structure against which we are reporting for the first time this year. The new outcome is: ‘the resolution of native title issues over land and waters’.

As in previous years, this report deals with the range of registration, mediation, arbitration, assistance and other statutory functions performed by the Native Title Registrar and members and employees of the National Native Title Tribunal (the Tribunal). But this year we have positioned ourselves for further change. We have a new output structure in place, we have developed a new Strategic Plan, we have implemented communication reform and we have contributed to the Australian Government’s reform agenda for key aspects of the native title system and the institutions that administer that system.

The focus and possible outcomes of the reform agenda are discussed later in this overview.

These reforms aside, the Tribunal faces significant challenges in its operating environment:

These challenges are discussed later in this overview. Effective responses to these challenges require both innovation and leadership, and commitment to achieving results across the native title system. Some of those responses are likely to be found in the reform agenda.

The Tribunal’s Strategic Plan 2006–2008, developed in the reporting period and discussed further in this overview sets out how we will address these challenges and endeavour to influence the current environment in order to improve its efficiency and enhance client services.

As a national body that has been involved in native title matters since 1994, the Tribunal has extensive knowledge and experience of how the native title system works and of the variations in and between states and territories in relation to native title issues. The Tribunal is uniquely placed to participate in and make observations about the native title system from:

This report reflects some of the variations between states and territories in how native title issues are approached and resolved. It illustrates why the Tribunal operates differently in each state and territory, while administering one national Act.

The nature and volume of the work undertaken by the Tribunal vary significantly over time, as well as between individual states and territories. Much of the work is driven by parties who request Tribunal assistance, and by the Federal Court of Australia (the Court) which refers native title applications to the Tribunal for mediation and supervises the mediation processes. These and other factors, including the negotiating stances of parties, make it difficult to predict accurately the number of agreements and when they will be finalised.

I gratefully acknowledge the contribution of each member, the Native Title Registrar and the employees of the Tribunal during the year covered by this report. The work of the Registrar, Chris Doepel, was recognised in the 2006 Australia Day Honours list by the conferral of a Public Service Medal for outstanding public service in the development and implementation of legislation and policy relating to native title.

This overview discusses three broad topics: external factors affecting the Tribunal, trends within the Tribunal, and the context in which native title issues are and will be resolved.

The rest of the report includes not only information about various outputs but also some of the stories about negotiations and outcomes in human terms, giving a broader picture of what native title delivers to particular groups and wider sectors and communities. It provides a picture of how native title rights and interests are being recognised, often by agreement, alongside other rights and interests.

External factors affecting the Tribunal

The ways in which the Tribunal meets its obligations are significantly influenced by numerous factors which the Tribunal does not control, including developments in the law, policies and procedures of governments, procedures and orders of the Court, and the roles and capacity of native title representative bodies. During the reporting period, the Attorney-General announced potentially wide-ranging reforms of key aspects of the native title system which are likely to affect the way in which the Tribunal operates and the results that might be achieved. It is appropriate to note those potential reforms and their possible impact before discussing other external factors.

(a) Reforms of the native title system

Since the current native title system commenced to operate on 1 January 1994 it has been the subject of analysis and criticism. As the law and practice have developed, parties and parliamentarians, commentators and critics have focussed on various aspects of the system. Many reforms have been proposed. Some have been implemented.

The Tribunal has recognised that there are systemic issues that require attention and appropriate action, and that both legislative and procedural reform is required if the native title system generally (and the mediation process in particular) is to achieve the potential it offers.

In a speech delivered on behalf of Attorney-General Ruddock at a native title conference on 26 May 2006, Senator Scullion stated that the native title system ‘is not achieving the outcomes which it should’ and that ‘resolution of native title issues within the current framework is too costly and time-consuming’. In the Rubibi (No 7) judgment delivered in April 2006, Justice Merkel went so far as to describe native title in Australia ‘as being in a state of gridlock’.

Although this report demonstrates that the native title system is not in a state of gridlock, it is clear that some change is desirable.

On 7 September 2005, the Attorney-General had announced a plan for practical reform to improve the performance of the native title system. Although the increasing number of native title determinations and agreements demonstrated that the system was working, the Australian Government was concerned that the current framework was still too costly and too time-consuming.

The announced reforms will be focused largely on measures to promote resolution of native title issues through agreement-making wherever possible, in preference to litigation. The six interconnected aspects to the reforms include:

Each aspect of the proposed reforms is relevant to the Tribunal’s work. During the reporting period, however, the Tribunal’s attention was focused primarily on the review of the claims resolution process which commenced formally with the appointment of two independent consultants, Mr Graham Hiley RFD QC and Dr Ken Levy RFD.

The expressed purpose of the review was to examine the respective roles of the Tribunal and the Court and inquire into and advise the Australian Government on measures for the more efficient management of native title claims within the existing framework of the Act. The review was to consider how native title claims can be ‘most efficiently and effectively resolved’. It would also assess how the Tribunal and the Court ‘can maximise the potential for native title claims to be resolved in a quicker and less resource-intensive manner, primarily through mediation and agreement-making, and where appropriate, with a greater degree of consistency in the manner in which claims are handled’.

The Tribunal participated actively in the review, making submissions and being represented by Member John Sosso on the Steering Committee overseeing the review. The consultants provided their report to the Attorney-General on 31 March 2006.

At the end of the reporting period, neither the consultants’ report nor the detailed government response to it had been made public.

Some likely outcomes of the reform process were outlined in the speech delivered on behalf of the Attorney-General by Senator Scullion on 26 May 2006. Senator Scullion said that one challenge which must be addressed is to reduce the duplication of functions between the Federal Court and the Tribunal. In particular, the simultaneous mediation of a given claim by both institutions must be excluded. Another challenge is to ensure that the Tribunal can mediate more effectively. This will be achieved by conferring additional power upon the Tribunal, including powers to direct parties to participate in mediation and to produce documents.

Senator Scullion also said it is important that there be improved communication and co-ordination between the Court and the Tribunal in relation to individual claims and overall approaches to claims management. The Australian Government will also implement measures to reduce the existing backlog of those claims which have little prospect of success.

Whatever the outcomes of the review, and other changes to the native title system, the Tribunal has argued that any improvement to the processes and practices of the Tribunal and the Court will have a negligible effect on the resolution of native title claims by agreement if the parties to the proceedings are unwilling or unable to participate productively or in a timely manner. Important as the Tribunal and Court are to the operation of the system, it is the parties that determine whether, what and when any outcomes are agreed.

The process by which native title applications are resolved by agreement requires the active and positive involvement of governments. It also requires other respondent parties to have an incentive to consider and, where appropriate, negotiate options for settlement rather than proceed as if native title claims are necessarily headed for trial.

That much seems to be accepted by the Australian Government. The speech delivered in May 2006 stated that ‘changes to the system – and to the behaviour of key stakeholders – are needed’ to ensure that traditional rights are enjoyed by native title holders within their lifetimes.

Although it is possible for governments to adjust the statutory and institutional frameworks, ‘the key to securing efficient and enduring outcomes lies in the behaviour of the parties’. In finalising the package of reforms, the Australian Government will give priority to measures which ‘encourage stakeholders to focus on their direct interests in the outcome and their responsibilities within the system’.

One of the foreshadowed measures to reach that objective is amending the guidelines on the provision of financial assistance to respondents in native title claims to focus the scheme more strongly on agreement-making in preference to litigation. The Australian Government’s view is that third party respondents should only be involved in native title litigation so far as is necessary to protect their specific interests.

The Australian Government will also develop measures to encourage all parties participating in formal mediation to act in good faith. It will make changes directed to ensuring that both the Federal Court and the Tribunal can guide parties more effectively to facilitate agreement-making. Those cases in which agreement cannot be reached may be identified earlier and resolved more expeditiously by the Court.

The foreshadowed reforms should result in practical improvements to the system and, in particular, to more agreements reached in shorter periods and at lower average costs than often has been the experience to date. The implications of these various reforms on the work of the Tribunal will only become apparent once the changes are announced and implemented.

(b) Developments in the law

Developments in native title law occur by way of legislation or from decisions of courts and tribunals. Both took place during the reporting period.

The legislative changes noted below had little impact on the operations of the Tribunal. Most of the judgments dealt primarily with technical aspects of the Act, while some finalised native title claims and gave additional insight into the challenges of native title litigation. Such judgments provide a context in which the Tribunal conducts its mediation practice and inform various decisions made by the Registrar and his delegates.

Legislation

Minor amendments were made to the Act by the Financial Framework Legislation Amendment Act (No 1) 2006 and the Statute Law Revision Act 2005 and through the Statute Law RevisionAct 2006 amendments to the Aboriginal and Torres Strait Islander Commission Amendment Act 2005.

The Native Title (Tribunal) Regulations 1993 were amended in July 2005 to remove the prescribed fees for inspecting the registers kept by the Native Title Registrar and for accessing records or information kept pursuant to s. 98A of the Act.

Amendments were also made to the Native Title (Indigenous Land Use Agreements) Regulations 1999 in March 2006 to prescribe the form for objecting to an alternative procedure agreement and inserting definitions of the different types of indigenous land use agreements (ILUAs) dealt with in those regulations.

The Native Title (National Aboriginal and Torres Strait Islander Land Fund) Repeal Regulations 2005 were registered on 11 July 2005. They repealed the Native Title (National Aboriginal and Torres Strait Islander Land Fund) Regulations which were made redundant following the repeal in 1995 of s. 201 of the Act, which provided for the establishment of the Fund. The reason for repeal of that section was the establishment of the Indigenous Land Corporation.

The Native Title (Representative Bodies – Audit of Financial Statements) Regulations 2005 were registered on 8 December 2005. They prescribe qualifications of auditors of native title representative bodies.

Judgments and litigation

The Court delivered more than 40 written judgments on matters involving native title law during the year. Some of those were at the end of trials and contained determinations that native title does or does not exist. Most judgments, however, involved other technical issues in relation to the interpretation of the Act and aspects of native title practice and procedure.

That volume and range of judgments continued the trend in recent years of the Federal Court delivering scores of written judgments each year on native title matters. Consequently, the legal environment in which some negotiations occur or cases are argued is increasingly certain.

The High Court refused to grant special leave to appeal from judgments of Full Courts of the Federal Court in relation to particular native title claims in South Australia and the Northern Territory. Consequently, those proceedings are finalised and the determinations made by the Full Court in each case stand.

Members of the Tribunal are also involved in the development of the law as they make future act determinations under the Act. None of those determinations were the subject of Federal Court review during the reporting period.

Summaries of the main points of significant judicial decisions and Tribunal determinations are set out in Appendix II.

The potentially most significant outstanding legal issue is the basis on which compensation for native title is to be assessed and the amounts of compensation that will be payable for areas where native title has been extinguished in whole or in part. A test case involving a claim for compensation for land in the Yulara townsite in central Australia was dismissed in May 2006. The Court decided, on the case presented, that the applicants had not shown that native title subsisted over the application area when the compensation acts occurred. Consequently, the compensation application was dismissed without the key legal issues about compensation being resolved. At the end of the reporting period there were 12 current compensation applications; a small proportion of the 604 current native title applications.

Although some litigation is necessary to clarify legal issues or determine apparently intractable disputes, it is worth noting the length, cost and unpredictable outcomes of native title trials as other reasons for encouraging parties to attempt to negotiate outcomes.

During the reporting period, individual judges of the Federal Court delivered written reasons for judgment in relation to four claimant applications that had gone to trial. In each case the hearings extended over a substantial period (from nearly one year to five years) and there were numerous hearing days:

Appeals have been lodged in respect of the judgments in all of those cases.

In his final judgment on the Rubibi litigation to areas in and around Broome, Justice Merkel stated that native title claims ‘are not only complex but impose demands on the parties and the Court that are unprecedented in adversarial litigation’. His Honour explained that, although it is ‘obviously unsatisfactory’ for any litigious dispute to take over ten years to be finally resolved, ‘there are special circumstances attending the resolution of native title disputes that make the delay in achieving resolution understandable, even if not acceptable’.

An indication of the amount of work involved in preparing and presenting cases for trial can be illustrated by examples in two of those matters. In the Yulara compensation claim Justice Sackville noted that one of the expert witnesses had spent almost 500 days working on the case. The expert’s report was 364 pages long with 6,000 pages of appendices but much of it was rejected by the Court in light of objections made under the Evidence Act.

When discussing the evidence in the Larrakia people’s claim to land in and around Darwin, Justice Mansfield noted that both the Northern Territory and Darwin City Council had presented ‘very extensive evidence’ on the issue of extinguishment. The territory’s ‘Tenure Materials’ ultimately comprised 53 lever arch files of documents containing land tenure, mining tenure, petroleum tenure and fisheries tenure documents.

Soon after those two cases had been dismissed, Justice Merkel observed that Indigenous communities should appreciate the risk of failure in a native title claim. Such failure, ‘which recent experience reveals is far from hypothetical, … can have devastating consequences for the claimant community’. He urged parties to native title disputes to ‘increase their endeavours to reach compromises’.

Like other litigation, native title litigation need not be conducted on an ‘all or nothing’ basis, and resolution by agreement can be to the benefit of all the parties. For example, Justice Merkel indicated that the quest of state parties to ensure that Indigenous communities participate in the economic, social and educational benefits available in contemporary Australia can be advanced when a native title claim is resolved or succeeds. If claimant communities and state parties can achieve a mediated outcome, they can ensure that a broad spectrum of mutual benefits can follow the resolution of native title claims. Those benefits can include ILUAs, traineeship programs and various forms of financial and other support for the native title holding body.

In his Honour’s view, ‘if compromises are to be achieved, the cause of reconciliation between Australia’s past and present will be greatly advanced and the economic, social and educational benefits available to all Australians may be better able to be accessed by members of claimant communities’.

(c) Policies and procedures of governments

Role of governments in native title proceedings

It is apparent that most, if not all, parties want agreed outcomes rather than be engaged in native title litigation. Governments play a critical part in achieving those outcomes. The agreement-making processes administered by the Tribunal are more productive where the relevant government provides proposals for native title and other outcomes. Without the support of governments, consent determinations of native title cannot be made and many other options for settlement cannot be employed.

For the first time since the commencement of the Act almost 12 years earlier, federal, state and territory ministers with responsibility for native title met in Canberra on 16 September 2005. The meeting was convened by Attorney-General Ruddock and considered the promotion of effective communication and transparent processes, the role of agreement-making and native title-related outcomes in resolving native title issues, and meeting the future challenges in the system. Discussion between jurisdictions led to, among other things, a commitment to develop complimentary strategies to improve the way native title issues are addressed and resolved by all jurisdictions.

At the Attorney’s invitation, the Federal Court and Tribunal were represented at part of that meeting and Justice French and I addressed the ministers and their advisers.

I urged governments to consider, or continue, as appropriate:

Governments need to be transparent as to:

In the speech delivered on behalf of Attorney-General Ruddock on 26 May 2006, Senator Scullion stated ‘the behaviour of State and Territory governments is critical to the success of any reforms’. Furthermore, if third party respondents should only be involved in native title litigation so far as is necessary to protect their specific interests, the responsibilities of state and territory governments, as primary respondents, will assume greater importance.

In particular, those governments are best placed to assess matters regarding Indigenous peoples’ connection to land and waters in negotiations over native title, and to ensure that the system operates in a fashion which is more transparent to all parties. Senator Scullion said that state and territory governments should be giving priority to expediting assessments of connection. It is unacceptable to the Australian Government that such assessments may take several years to resolve. Once governments have made such assessments, they should be prepared to explain clearly their position to other interested parties.

In that vein, in April 2006, the Government of Western Australia published Preparing Connection Material: A Practical Guide as part of what the Deputy Premier described as its ‘commitment to resolve native title by agreement, wherever possible’. The booklet was compiled as a companion to the Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title, published in October 2004.

(d) Federal Court procedures and orders

The Federal Court has jurisdiction to hear and determine applications filed in the Court that relate to native title. The Court manages those applications on a case-by-case and regional basis, and supervises the mediation of native title determination applications and compensation applications. The case management practices of the Court can influence the practices of the Tribunal and the allocation of its resources.

During the reporting period, as mentioned above, the review into the native title claims processes between the Court and the Tribunal was conducted. The recommendations from the review and associated improvements to communication practice and procedures between the two institutions will be implemented in the next reporting period.

(e) Native title representative bodies

Functions, powers and capacity

Native title representative bodies have important functions and powers under the Act.

For many Indigenous groups, their local representative body is the principal source of advice and representation on native title matters. The representative body may represent people in mediations concerning claimant applications, and may be involved in future act negotiations (e.g. in relation to the grant of mining interests) and the negotiation of ILUAs.

As I have stated in previous annual reports, properly functioning representative bodies are not just important for the people they represent. The Tribunal and parties to native title proceedings or negotiations also benefit from them.

For some years, there have been concerns about the perceived inadequacy of the human and financial resources available to representative bodies to perform their functions.

In March 2006, the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account (the ‘PJC’) reported on the operation of representative bodies (for further information about this report, see External Scrutiny). The PJC made recommendations in relation to such matters as the development of key performance indicators to assess the relative effectiveness of representative bodies in meeting their statutory obligations, processes for the re-recognition of representative bodies once their recognition period has expired, and the funding and staffing of representative bodies including means of improving the recruitment and training of staff.

One of the six interconnected aspects to the Australian Government’s reforms of the native title system is a set of measures to improve the effectiveness of native title representative bodies. The Hon. Mal Brough, Minister for Families, Community Services and Indigenous Affairs, has portfolio responsibility for representative bodies. He has been working on reforms to be included in the overall legislative package to be introduced in Parliament later in 2006.

The three key elements to the legislative reforms are that:

The reforms will also include provision for multi-year funding of representative bodies to assist them in planning resources and make them more competitive in attracting skilled staff.

If those reforms result in outcomes such as more stable staffing of representative bodies and a capacity to plan confidently for longer terms, then the system will operate better because those bodies are better equipped to perform their statutory functions.

Regions where representative bodies operate

At the end of the reporting period there were 21 representative body areas with 14 recognised representative bodies for 15 of those areas.

There continued to be no representative body for southern Queensland, New South Wales or Victoria. Much of the representative body work, however, was undertaken by Queensland South Native Title Services Ltd, New South Wales Native Title Services Ltd and Native Title Services Victoria Ltd respectively.

There are still three areas for which there was no recognised body and no current application for recognition being considered: Australian Capital Territory and Jervis Bay Territory; Tasmania; and External Territories (Heard, McDonald, Cocos (Keeling), Christmas and Norfolk Islands and the Australian Antarctic Territory). The absence of representative bodies in these areas is of little or no practical significance to the Tribunal’s operations.

Trends within the Tribunal

(a) Changes to membership

The term of Professor Douglas Williamson RFD QC as a part-time member of the Tribunal concluded in December 2005. Professor Williamson had served for four consecutive terms over a total of nine years. In that period he conducted claimant mediations and was involved in a range of future act work in Western Australia, Victoria and other parts of Australia. He was present on 13 December 2005 for the determination by consent of the native title claim to land in the Wimmera region of Western Victoria, a matter involving more than 450 persons and organisations and which he had mediated.

Members Dan O’Dea and Ruth Wade were reappointed for terms of two years.

At the end of the reporting period there were 13 members— 10 were full-time and three were part-time. Details of the Tribunal’s membership are found in Tribunal Members.

(b) Shifts in volume of registration, notification and mediation of native title determination applications

The resolution of native title determination applications (or claimant applications) involves the Registrar, employees and members of the Tribunal in three main processes—the registration testing, notification and mediation of each application. Under the new output structure notification is not reported on as an output. Nevertheless, it is an indicator of the number of applications that will be referred to the Tribunal for mediation.

At 30 June 2006, there were 553 claimant applications at some stage between lodgement and resolution. The total was lower than the 584 current claimant applications at 30 June 2005. In the reporting period, 71 claimant applications were discontinued, dismissed, withdrawn, struck-out, combined with other applications or were the subject of approved native title determinations, and 40 new claimant applications were lodged.

In the period covered by this report 47 registration test decisions were made, 7 fewer than the 54 decisions made in the previous year. They included 12 registration tests made on applications for the second, third or fourth time. For further information about the registration testing carried out by the Tribunal see Output 3.1-Registration of native title claimant applications.

The registration test workload in claimant applications has plateaued in recent years. In the future, the level of registration testing will be influenced by, among other things, the number of applications that are amended (for example, as a result of agreements) and to which the registration test has to be applied again. Those factors are likely to be influenced by any amendments to the Act in relation to the circumstances in which the registration test will or will not have to be applied to amended claimant applications.

The level of notifications dropped slightly in 2005–06, with 22 claimant applications being notified, compared with 24 in the previous year. Seventeen non-claimant applications were notified. The level of notification reflects a reduction in the backlog and the decline in the rate of new claimant applications. Approximately 87 per cent of current claimant applications had been notified by 30 June 2006.

As more claimant applications are notified, the Federal Court is referring them to the Tribunal for mediation. At 30 June 2005, 346 current matters were with the Tribunal for mediation. At 30 June 2006, 328 current claimant applications had been referred to the Tribunal for mediation, including 16 matters that were referred to it during the past year.

Although 59 per cent of current applications have been referred to the Tribunal for mediation, many of them are not being substantively mediated. Much work remains to be done in numerous applications (including collating and presenting information about the native title claim groups’ traditional connection to the relevant areas of land or waters, and resolving disputed overlaps between neighbouring groups) before mediation with respondent parties will occur. It is to be hoped that various aspects of the reform of the native title system will lead to more applications being actively mediated.

(c) Forms of assistance offered by the Tribunal

Under the Act the members, Registrar and employees of the Tribunal may provide various forms of assistance to help people on a case-by-case basis to prepare applications or help them at any stage in matters related to a native title proceeding, and help them to negotiate agreements such as ILUAs. The increased emphasis on assistance the Tribunal may give to parties on a case-by-case basis, and to stakeholders on a sectoral basis, is reflected in the new output structure at outputs 1.1 and 1.2 and in the Strategic Plan 2006–2008, explained elsewhere in this report. Of note are two factors: the communication reform and the increasing level of sophistication of information the Tribunal can provide. We are seeing the increased use of geospatial and research assistance in the resolution of overlapping claims and in assistance to non-native title parties. For more information about this type of assistance see the Case Study.

Assistance in negotiation of ILUAs and other agreements

The Act contains a scheme that enables the negotiation of ILUAs that can cover a range of land uses on areas where native title has been determined to exist or where it is claimed to exist. There was a steady increase in the number of ILUAs registered in the reporting period, from 52 during 2004–05, to 68 in 2005-2006, bringing a total of 250 ILUAs on the Register of ILUAs at 30 June 2006. That was the highest number of ILUAs registered in a reporting period to date and reflects the increasing amount of this type of agreement-making.

This report contains information about the level of ILUA activity and other agreements around the country. For further information see Output Group 2.

(d) Increase in the number of determinations of native title

Although no longer counted as an output, in the reporting period the Native Title Registrar registered 21 determinations of native title —13 that native title exists and 8 that native title does not exist in relation to specific areas of land or waters. Details of some determinations are discussed in Appendix II and shown in Figure 3.

These determinations are on the public record held by the Tribunal in the National Native Title Register and available to be viewed through the website at www.nntt.gov.au/registers/Register.html. They set out quite precisely the native title rights and interests that are legally recognised as well as the rights and interests of others in the same areas of land or waters. They identify who the native title holders are. In other words, they provide a clear and comprehensive statement about the key features of native title and other legally recognised rights and interests for each area.

The number of determinations in the reporting period was more than the 16 determinations registered in 2004–05. Most of the determinations that native title exists were made by consent of the parties and in two cases the registration of the determination was conditional on the registration of an ILUA.

(e) Future act work

Another important aspect of the Tribunal’s work is the resolution by mediation or arbitration of issues involving proposed future acts (primarily the grant of exploration and mining tenements) on land where native title exists or may exist. Details of the future act work are set out later in this report.

There have been shifting trends in the future act work undertaken by the Tribunal during the reporting period. Future act consent determinations are becoming an increasingly common means of finalising negotiations: during the reporting period 68 of the 74 future act determinations were made by consent. That was a substantial increase on the numbers in 2004–05.

Fourteen of the 68 ILUAs registered in that period involved exploration or mining.

ILUAs are being used increasingly to grant mining and exploration tenements in Victoria. A set of nine pro forma native title mining agreements (endorsed by the Victorian Government, the Victorian Minerals and Energy Council and Native Title Services Victoria Ltd and launched in April 2004) has provided the basis for various agreements. ILUAs between the Minerals Council of Australia’s Victorian branch and the Dja Dja Wurrung people and the Wamba Wamba, Barapa Barapa and Wadi Wadi peoples set out standard terms and conditions that explorers seeking a tenement grant can choose to adopt, rather than enter into negotiations with traditional owners in those areas. The ILUAs were registered in May and were celebrated at a ceremony in Bendigo in June 2006.

In recent annual reports I referred to the development of standard forms of cultural heritage protection agreements in Western Australia and Queensland to deal with the concerns of native title parties about how proposed mineral exploration might affect areas of cultural significance. It was hoped that the adoption of those agreements would result in a substantial decline in the number of objections to the use of the expedited procedure under the Act.

There has not been the expected decrease in the number of objections to the use of the expedited procedure under the Act. Rather, the number of objections rose from 761 in 2003–04 to 1,230 in 2004–05 and increased to 1,387 in 2005–06.However, as the number of s. 29 notices has increased significantly in Western Australia, the number of objections as a percentage of the number of s. 29 notices fell during the reporting period.

As in previous years, most of those objections were in Western Australia where some native title claim groups not affiliated with the native title representative bodies (with which the regional standard heritage agreements were negotiated) have refused to adopt standard agreements, seeking instead to negotiate alternative agreements. In addition, some representative bodies have launched objection applications even where grantee parties have executed regional standard heritage agreements. Reviews of some standard agreements have been undertaken and other reviews will occur in 2006–07.

An increase in the number of objection applications lodged in Queensland reflects, among other things, an increase in the number of parties lodging objections to instigate or secure the negotiation of agreements as an alternative to the Native Title Protection Conditions. Numerous agreements have been negotiated. Of the 180 objections finalised in Queensland in 2005–06, 97 (54 per cent) were finalised by the withdrawal of the objection because of an agreement.

(f) Revised outcome and outputs

As the PJC noted in its examination of the Tribunal’s Annual Report 2002–2003, ‘the performance of the work of the Tribunal as described within the parameters required of Commonwealth organisations may not necessarily be complete when viewed merely in terms of unit cost or the number of units achieved’.

The Tribunal started the 2005–06 financial year with a new outcome statement and a revised outputs structure that more clearly reflects the purpose of the Tribunal and its changed operating environment. The new outcome statement, ‘Resolution of native title issues over land and waters’, better identifies the role and responsibilities of the Tribunal than the previous outcome statement ‘Recognition and protection of native title’.

In line with Australian Government requirements, the Tribunal introduced effectiveness indicators for the outcome. These indicators will help to assess the quality of agreement-making processes and the impact of the Tribunal’s work on the type of native title outcomes achieved by parties (for more information see the Outcome and Output Structure). In its review of the Tribunal’s Annual Report 2004–2005, the PJC welcomed these developments. The positive responses to the effectiveness indicators provide high benchmarks for the years ahead.

(g) Strategic Plan 2006–2008

During the reporting period the Tribunal developed a new Strategic Plan to replace its Strategic Plan 2003–2005. The Strategic Plan 2006–2008 describes the environment in which the Tribunal operates (set out earlier in this overview) and the role, purpose, values and behaviours of the Tribunal. Our primary purpose is ‘to work with people to resolve native title issues over land and waters’.

The Tribunal’s efforts are focussed on our clients and stakeholders, our services, our people and our business performance. Through the implementation of the strategies outlined in the plan, we seek to achieve the following improvements:

The full text of the Strategic Plan is available on the Tribunal’s website at www.nntt.gov.au/about/strategic06.html.

(h) Communication reform

Another factor to enable the Tribunal to respond readily to the changing environment this year has been the introduction of communication reform. Based on two sets of independent research conducted and reported on in the previous two financial years, the communication reform comprised the development of a new visual identity and ways to ensure that the Tribunal communicates clearly, effectively and efficiently with all its clients and stakeholders. For further information about the Tribunal’s communication initiatives, see Output 1.2.

(i) Budgetary outlook

In recent years, including the reporting period, the Tribunal has not used the entire amount appropriated to it. The Parliament appropriated $30.013 million for the reporting period. Of that, $30.460 million was spent.

The budgetary position for 2005–09 was decided following the review of the funding of all Australian Government agencies involved in the native title system. The 2005–06 and forward estimates years show a slight decrease in appropriation from 2004–05. The level of appropriation will remain relatively flat for the duration of the current four year budget cycle. Rising costs will erode the value of that funding. If the Tribunal is given additional powers and functions there could be increasing pressure later in the current funding cycle.

The effect of the budgetary outlook on the Tribunal will become clearer in the years ahead. To meet the budgetary challenges there has been some restructuring of the organisational side of the Tribunal. That restructuring continues having regard to the Tribunal’s task and client focus, the need to fit its resources to needs, and the need to enhance the Tribunal’s ability to do its core business and deliver its outcome.

Context of native title

In previous annual reports I have looked ahead to predict some key trends in native title law and practice and the factors that will affect how native title issues are resolved. In particular, I have discussed the following identified trends:

Rather than repeat the discussion of each of those trends, this part of the overview focuses on various aspects of the context or environment in which native title issues are resolved, and considers the place of native title in a broader policy framework.

Legal context, community attitudes and the projected workload

Indigenous Australians are seeking recognition as the people for their traditional country and a say in what happens on that country, and they will use whatever legal regime is available to obtain that recognition (be it native title laws, cultural heritage laws, land rights laws and so on).

In light of experience of negotiations and litigation under the Act, there is an increased acceptance of the following four propositions as the context in which native title claims are resolved:

It is clear however, that the operation of the native title system over the past decade has influenced thinking and attitudes at a community and sectoral level. There has been widespread adoption of positive attitudes toward native title negotiation rather than litigation, resulting in a steady increase in parties seeking to settle matters by agreement, and an increasing proportion of native title claims being resolved by consent. As the law has become clearer, legal uncertainty is no longer as much a barrier to parties entering native title negotiations and reaching agreements.

The trend towards finalising claimant applications by negotiated agreement is illustrated by the determinations of native title registered under the Act since the Act commenced, particularly in the reporting period.

Of the 87 native title determinations made and registered between 1 January 1994 and 30 June 2006, 60 were determinations that native title exists in all or part of the determination area. Most of the determinations that native title exists (47, or 78 per cent) were made by consent of the parties. In the year covered by this report, 21 determinations of native title were made and registered. Of those, 13 were that native title exists and most of those determinations (11, or 85 per cent) were made by consent.

Benefits to Indigenous Australians often arise from negotiated agreements about native title and related matters. There is a general willingness to consider outcomes that do not necessarily involve a determination of native title.

There is also a willingness by industry sectors (especially the mining industry) and governments (especially some local governments) to engage local Aboriginal communities or groups in discussions about what happens on their traditional country, whether or not those communities or groups have statutory procedural rights to negotiate. In other words, such groups now have a seat at the negotiating table. This is evidence of a dramatic change in the attitude of many people to native title and to involving Indigenous Australians in decision-making.

It is in that context that the Tribunal will deal with the ongoing and increasing workload in relation to native title applications that are already in the system. As at 30 June 2006 there were 604 current native title applications (553 claimant, 12 compensation and 39 non-claimant applications). That total is just over 35 per cent of the 1,708 applications made since the Act commenced, but the challenge is to deal with those and future applications effectively and efficiently, reducing transaction costs where possible. The foreshadowed reforms to the native title system should help to meet those challenges. Whatever changes are made, the Federal Court and the Tribunal will need to continue to work closely with each other and with the parties to encourage timely, just, and enduring outcomes.

Native title is not a panacea, but other outcomes can be negotiated

I have previously expressed the view that far too great a weight of expectation has been put on native title to deliver what it was not capable of delivering. Native title was never going to provide extensive outcomes for all Indigenous Australians. There are substantial areas of Australia where native title will not be recognised. That much was clear from the High Court’s judgments in Mabo v Queensland (No 2) and is apparent from the Preamble to the Act which states, among other things:

It is important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests …

On that basis the Preamble recites that ‘a special fund needs to be established to assist them to acquire land’. Subsequently, the Aboriginal and Torres Strait Islander Land Fund and the Indigenous Land Corporation were established to do, in part at least, what native title laws would not and could not achieve.

The third, and to date unrealised, element of the scheme that includes the Act was the ‘social justice package’. The Preamble alludes to it when it recites:

The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended … to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians (emphasis added).

The speech delivered on behalf of the Attorney-General to the native title conference in May 2006, highlighted the potential which native title offers to advance the position of Indigenous people. The speech expressly acknowledged, however, the limitations of native title. ‘It is not a panacea for all or even most, of the complex issues which we currently confront in seeking to secure progress for Indigenous Australians.’

In his judgment at the end of the long-running Rubibi native title litigation, Justice Merkel drew to the attention of at least the state parties and the Indigenous parties ‘the desirability of seeing the resolution of native title claims as a means to an end, rather than an end in itself’. As his Honour stated:

Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for Indigenous communities. However, native title can also be seen as a means of Indigenous people participating in a more effective way in the economic, social and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping stone to securing those outcomes but cannot, of itself, secure them. (Rubibi Community v Western Australia (No 7) [2006] FCA 459 at [166])

A similar message was contained in the Attorney-General’s speech which stated that ‘the “system” of native title is not an end in itself. It is there to facilitate, address and resolve the different interests of parties to native title claims’. He noted that the process of identifying interests and negotiating outcomes presents opportunities to address issues beyond the simple determination of rights over land, including measures to promote economic development for Indigenous Australians, opportunities for capacity-building and support to Indigenous communities, and assistance in securing long-term and lasting benefits from the land. He continued, ‘engagement between parties on native title processes can assist in building and sustaining meaningful and productive relationships, which should endure beyond the temporal confines of a mediation or a trial’.

Those statements reflect not only recognition of the limitations of the native title system but also an increasing trend to see native title within a broader social, economic and legal context.

Although compliance with the current state of the law is critical to achieving native title outcomes (particularly determinations of native title), many substantive related outcomes can be negotiated unfettered by the requirements of the Act. Government policies that provide a framework for dealing with issues can expand the scope of what is being discussed by parties to native title proceedings.

Respondent parties, especially state and territory governments, have the capacity to negotiate about a range of possible outcomes that satisfy the interests of the parties, bring finality to the native title proceedings, are in addition to or in place of determinations that native title exists, and can be delivered at lower cost than full blown court proceedings.

Such options might include grants of title or other interests in land, roles in managing what happens on land (such as joint management of conservation areas or reserves), symbolic recognition of traditional affiliations with the land (such as signage indicating that an area is the traditional country of a named group of people), employment and other economic opportunities in relation to land, and financial payments or grants to a group (such as assistance for capital works or the administration of a tribal council or to establish an effective decision-making framework). Results along these lines have already been achieved or are being negotiated.

They illustrate some of the innovative thinking that might be used to deal with the issues that prompted the lodgement of some native title claims, and to satisfy the interests of all the parties without necessarily having a determination that native title does or does not exist as a central component of the settlement.

The time may also be right to look beyond claim or group specific options to broader structural and policy initiatives at a state or territory level. There may be ways of involving traditional owners of land in decision-making without the need to invoke the native title claims process with the attendant costs for the parties and their representatives, the Federal Court, the Tribunal and, ultimately, the Commonwealth. One aspect of alternative land schemes might be the extent to which other people would have entitlements, in areas where the resident community includes Indigenous people who are not native title holders or traditional owners.

The result might involve some new legislation, or a revision of current legislation (such as cultural heritage or land rights schemes), to provide harmony between the various regimes and allow each to inform the options available under others.

By-products of native title

For those groups who have received native title recognition, the social and psychological benefits to them are profound, irrespective of any economic benefits.

Although native title itself may not be an economically valuable commodity, significant economic benefits as well as heritage protection and other outcomes are being secured by groups as a by-product of native title processes. One benefit from those procedural rights can be the capacity to negotiate training, employment and business opportunities in relation to enterprises on particular areas of land, engagement in cultural heritage programs, and employment in national parks and other conservation areas.

People are using their procedural rights under the Act and other legislation to negotiate agreements before, after, and independently of a determination of native title.

In a broader sense Aboriginal people and Torres Strait Islanders are involved in negotiations about matters, in ways and with people that could not have been imagined a decade ago. There has been a change in the mindset of many Australians, particularly in key industries, so that it is increasingly part of day-to-day business to engage in discussions or negotiations with Indigenous people about a range of land use matters.

Many of those negotiations proceed irrespective of whether the group has proved or can prove that it has native title. Indeed, many agreements (including ILUAs) are made long before native title is shown to exist and, potentially at least, with groups who could not prove that they have native title. Business can then proceed without the delay of waiting for claims to be resolved, Indigenous groups can benefit from the agreements, and relationships can be created or strengthened.

Some sectors have moved beyond strict compliance with the law to try to establish sustainable partnerships with local Indigenous communities.

The change in outlook is reflected in various statements on behalf of the mining industry. The Memorandum of Understanding signed by the Mineral Council of Australia and the Australian Government in June 2005 provides for a partnership between them ‘to work together with Indigenous people to build sustainable, prosperous communities in which individuals can create and take up social, employment and business opportunities in mining regions’. Among the outcomes that the activities under the MOU are meant to deliver are increased employability and jobs for Indigenous people, increased business enterprises for them, prosperous Indigenous individuals and families, and communities that endure beyond the life of mining in the relevant regions.

For some industries, particularly the resources sector, a resident community with strong traditional ties to an area may provide a stable source of employees or business contractors. That in turn depends on such factors as the size of the community, the age range of members of the community and whether the people have sufficient education and relevant skills for the purpose. In other words, there may be real opportunities for economic development in a community of native title holders so long as people have or can acquire the relevant knowledge and skills.

Australia, particularly the minerals and energy sector of the economy, is experiencing a substantial and growing demand for resources from trading partners. That demand creates the need for employees, including people who are educated and trained across a wide range of relevant professional and technical disciplines. The Chamber of Minerals and Energy Western Australia, for example, has estimated that the resources sector will require almost 20,000 new employees in 2015. Being able to attract the right people at the right price to do work in the resources sector is vital to that state’s (and any other state or territory’s) continued competitiveness.

The resources boom also encourages the development of associated infrastructure. These and other works create potential employment and business opportunities for Indigenous groups, including those who live on or near the land where these activities occur. The challenge is to grasp the opportunities presented by the current global demand for Australia’s natural resources and provide opportunities for real, and long term, economic advancement of Indigenous people.

The potential for such economic advancement was highlighted during the period covered by this report at the Inaugural Aboriginal Enterprises in Mining and Exploration Conference in Alice Springs on 4 November 2005. Among the points made at that conference were:

Employment and business opportunities for native title claimants or holders can arise in a range of other activities. For example, an ILUA registered in May 2006 in relation to a proposed golf course and resort development in Creswick in rural Victoria, provides employment and training opportunities for the Dja Dja Wurrung people, a commitment to display and sell local Indigenous art, and signage around the golf course and resort to explain Dja Dja Wurrung cultural heritage to resort guests. Cultural management plans have been developed under the ILUA which also delivers financial benefits to the Dja Dja Wurrung people.

Native title and a whole-of-government approach to service delivery

At a national level, the Australian Government’s vision for the administration of Indigenous affairs following the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) is a ‘whole of government approach which can inspire innovative national approaches to the delivery of services to indigenous Australians, but which are responsive to the distinctive needs of particular communities’. The whole-of-government approach involves public service agencies working across portfolio boundaries to achieve a shared goal and an integrated government response to particular issues. The principles underlying the new arrangements are collaboration, regional need, flexibility, accountability and leadership.

Incorporating native title into policy development, program management and service delivery is consistent with those principles. Indeed, as the Aboriginal and Torres Strait Islander Social Justice Commissioner has argued, any failure to coordinate the goals of the native title system with the Australian Government’s strategies to address the economic and social development of Indigenous people not only isolates the native title process from these broader policy objectives; it limits the capacity of the broader policy to achieve those objectives.

Native title claims and outcomes (particularly determinations that native title exists and ILUAs) are either directly or indirectly relevant to a range of matters of concern to Indigenous communities including land ownership and use, protection of cultural heritage, employment and training, community governance and service delivery and the provision of infrastructure.

There needs to be a collaborative approach to such issues by Australian Government departments and agencies such as the Indigenous Land Corporation, Indigenous Business Australia and the National Native Title Tribunal. Steps along that path are being taken at national and state levels. The Tribunal is represented on the Native Title Coordination Committee (NTCC), a committee chaired by the Native Title Unit of the Attorney-General’s Department. The NTCC includes representatives from the Indigenous Justice and Legal Assistance Division of the Attorney-General’s Department, the Federal Court, the Tribunal, and the Office of Indigenous Policy Coordination. The NTCC meets regularly to monitor the performance of the native title system and the achievement of the Australian Government’s native title objectives. The Tribunal assisted the NTCC during the reporting period through its contribution to the collection of data.

The collaborative approach to these issues should not be confined to Australian Government departments and agencies. The national framework of principles agreed to by the Council of Australian Governments (COAG) in June 2004 includes ‘sharing responsibility’. An aspect of that principle is ‘committing to cooperation between jurisdictions on native title, consistent with Commonwealth native title legislation’. There is much room for such a cooperative approach to be adopted when negotiating native title and related outcomes.

At their meeting in June 2005, members of COAG ‘reaffirmed their commitment to work together in an ongoing partnership to improve outcomes for Aboriginal and Torres Strait Islander Australians’. In particular, COAG noted ‘the importance of governments working together with local Indigenous communities on the basis of shared responsibility’.

At their first meeting in September 2005, Commonwealth, state and territory ministers with responsibility for native title agreed to build on the agreement reached by COAG in June 2004, and to a renewed commitment to work together to make the native title system more effective to achieve improved outcomes for all parties.

Governance issues before and after determinations of native title

Good governance is relevant to the conduct and resolution of native title claims. Native title claim groups need to organise themselves internally in order to negotiate an outcome with respondent parties (sometimes including neighbouring groups with disputed overlapping claims) or to argue the case in the Court. Where there is a determination that they have native title, the Act requires that a body corporate be established to hold the native title rights and interests in trust for the common law holders or to act as their agent or representative. The legal options need to be considered carefully.

Importantly for the group and for those who may wish to negotiate with them, clear governance structures need to be in place so that the procedural and other benefits conferred on native title holders can be enjoyed. Groups who leave internal governance issues to be resolved until after they have achieved a determination of native title risk not achieving appropriate governance structures and hence delaying or not gaining benefits for their communities.

At the end of the reporting period there were 60 registered determinations that native title exists. As more such determinations are made and large areas of the country are subject to those determinations, prescribed bodies corporate (PBCs) are assuming increasing importance as the bodies with whom other people should negotiate in relation to use of those areas of land.

Even when such corporations are established, there are real practical issues about how they will be resourced to function. This issue has arisen in the context of claim resolution and future act negotiations. The issue of PBC resourcing (by way of funding and skills capacity) has been raised with the Tribunal over many years. There have been concerns about the workability of native title in the absence of resourced and effective structures to support native title holders.

In its March 2006 report on the operation of native title representative bodies, the PJC recommended that the Commonwealth examine appropriate means for resourcing the core responsibilities of PBCs and also recommended that governments widely publicise the availability to PBCs of different funding sources, particularly in relation to the land management functions of PBCs.

The Australian Government is well aware of the situation. As noted earlier, one of the six aspects of the proposed reforms to the native title system is an examination of current structures and processes of PBCs. As the Australian Government recognises, the operation of the native title system over the longer term will depend on the ability of PBCs to effectively manage and protect determined native title in accordance with the wishes and interests of the native title holders. The Attorney-General has indicated his particular interest in measures to improve the capacity of PBCs and their flexibility in dealing with native title.

Other governance issues arise once native title has been determined to exist over an area of land. The native title holders assume specified procedural rights under the Act in relation to certain types of future acts, such as the right to negotiate about the proposed acquisition of land by the government for the benefit of third parties or the grant of mining interests. One governance issue for some communities is how to define the role of people who, although native title holders, live far away from their traditional land. What part should they have in decision-making about the land and how can they exercise their rights in a timely and effective way?

In most (perhaps all) communities, people with historical links to the land (sometimes from long periods of residence) live alongside the native title holders. One challenge facing governments, resources sector and Indigenous communities in the current minerals boom is how to deliver sustainable economic special benefits to Indigenous communities in a region, including native title holders, particularly where native title claims are unresolved and communities include people who are not native title holders.

There can be tension about the governance of land, where the balance of decision-making power has shifted to the native title holders, or may have shifted within the native title holding group. Arrangements may need to be negotiated within the community to reflect the new legal reality while accommodating the interests of others with longstanding links to the community and the area. People from outside the community may need to adjust how they deal with the community.

There are policy issues for Australian, state and territory governments in dealing with this significant practical issue that affects both the enjoyment of native title and effective access to native title lands by miners and others.

In the speech given to the native title conference in May 2006 on behalf of the Attorney-General, Senator Scullion said that the Australian Government wishes to encourage a greater focus on post-determination interests at an early stage in the process for resolution of claims. This includes working with stakeholders on matters such as the management of interests following the determination including through the negotiation of ILUAs and the establishment of PBCs.

Customary law and native title

In recent months, increasing attention has been given to the issue of whether Aboriginal customary law should be taken into account in the administration of various aspects of the Australian legal system. It may be appropriate to reiterate the central role of customary law in the continuation of native title.

The High Court’s judgment in Mabo v Queensland (No 2) made it clear that native title has its origin in, and is given its content by, the traditional laws acknowledged and customs observed by the Indigenous people who possess the native title. In a later judgment, the High Court stated that the ‘underlying existence of the traditional laws and customs is a necessary pre-requisite for native title’.

The definition of ‘native title’ in s. 223 of the Act adopts language from the Mabo (No 2) judgment. It states that native title rights and interests are ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the relevant Aboriginal peoples or Torres Strait Islanders. Those people have a connection with the land or waters ‘by those laws and customs’.

The scope of the statutory definition has been considered in numerous High Court and Federal Court judgments. Much information has been exchanged in the course of negotiations, and much evidence has been adduced in trials, to establish whether and to what extent traditional laws and customs survive and are observed in relation to particular areas of land and waters. Claimant and compensation applications have succeeded or foundered accordingly.

Importantly, perhaps, in the current debate about whether or when customary law should be considered, the statutory definition of ‘native title’ is confined to the rights and interests that are recognised by the common law of Australia.

Various judges have stated that native title cannot be recognised under s. 223 of the Act if it is ‘antithetical to fundamental tenets of the common law’, or it has ‘incidents that are repugnant to the common law’, or if the relevant traditional laws and customs ‘clash with the general objective of the common law of the preservation and protection of society as a whole’. To date, however, there have been no examples of native title rights and interests that might come within those categories. Native title will also not be recognised if there is no appropriate legal or equitable remedy available to protect and enforce the rights and interests.

International law developments and native title

The rights of Indigenous peoples continue to be the subject of international consideration, and Australia’s native title scheme is of interest to international bodies and to communities overseas.

The Act formally recognises the relevance of international human rights law to native title. The Preamble to the Act refers to the Racial Discrimination Act 1975 (Cwlth) and the International Convention on the Elimination of All Forms of Racial Discrimination.

One emerging document that may become relevant to any international assessment of the native title regime is a proposed United Nations Declaration on the Rights of Indigenous Peoples (the ‘Declaration’). Work on the draft Declaration has been undertaken for more than 20 years, first by the United Nations Working Group on Indigenous Populations and then by the Working Group established by the Commission on Human Rights in 1995. The eleventh session of the open-ended inter-sessional working group on the draft Declaration was held in December 2005 and in January and February 2006. Australia was one of the member states represented in this process.

On 29 June 2006, the Human Rights Council adopted a resolution on the draft Declaration, and recommended that the General Assembly of the United Nations adopt the non-binding Declaration.

The draft Declaration recites that there is an ‘urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources’. It includes articles concerning Indigenous peoples’ rights:

not to be forcibly removed from their lands or territories, and for any relocation to be with their free, prior and informed consent and agreement on just and fair compensation (Article 10);

to maintain, protect and have access in privacy to their religious and cultural sites (Article 13);

to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard (Article 25);

to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired (Article 26.2);

to redress (by means of restitution or just, fair and equitable compensation) for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent (Article 27);

to determine and develop priorities and strategies for the development or use of their lands or territories and other resources (Article 30).

If the Declaration is adopted in the terms currently proposed, states would, in consultation and co-operation with Indigenous peoples, take the appropriate measures, including legislative measures, to achieve the ends of the Declaration (Article 37). That would include providing effective mechanisms for prevention of, and redress for, any action which has the aim or effect of dispossessing Indigenous people of their lands, territories or resources (Article 7.2(b)).

Any such Declaration might provide another standard by which native title laws and practice in Australia are assessed.

Section 209 of the Act requires the Aboriginal and Torres Strait Islander Social Justice Commissioner to report annually to the Attorney-General about the operation of the Act and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders. Those reports are wide-ranging documents which raise various policy issues. Sometimes they deal directly with aspects of the Tribunal’s work. A Declaration would presumably be taken into account in future reports.

Conclusion

In his speech in May 2006 to the native title conference, Senator Scullion said on behalf of the Attorney-General that ‘we should not forget that native title occupies a permanent place in Australia, and rightly so’. The ongoing acceptance of native title is apparent in many ways.

This annual report illustrates that acceptance and demonstrates that:

The Tribunal has long supported the goals of achieving more native title and related outcomes in quicker and less expensive ways, and of ensuring that processes facilitate rather than get in the way of securing tangible outcomes. The Tribunal remains willing and able to respond to improvements to the native title system and to assist parties to negotiate outcomes that are just and enduring.