Chapter 2 - National Native Title Tribunal
Annual Report 2002-2003
The National Native Title Tribunal
2.1
The NNTT’S functions are set out in section 108 of the
NT Act. These functions include: applications, inquiries, and determinations,
mediation in Federal Court proceedings, providing assistance or mediation when
requested and conducting research.
Formal reporting requirements
2.2
Under section 133 of the NT Act, the President of the
NNTT is required to prepare and give to the Commonwealth Minister 'a report of the
management of the administrative affairs of the Tribunal' as soon as practicable
after 30 June each year. The report must include:
-
financial statements under section 49 of the Financial Management and Accountability Act
1997 (the FMA Act); and
-
an audit of those statements under section 57 of
the FMA Act.
2.3
The NNTT is a Statutory Authority which, as a matter of
policy, complies with the Requirements for Annual Reports (the Requirements)
prepared by the Department of the Prime Minister and Cabinet.[1]
2.4
The Requirements note that their purpose is 'accountability,
in particular to the Parliament'.[2] They set five
core items of compulsory information together with other mandatory information
from specific statutory provisions. Reports must also include a letter of transmittal.
2.5
The core items of information prescribed by the
Requirements are:
-
review by Departmental Secretary (or equivalent);
-
management and accountability;
-
financial statements; and
-
other mandatory information.
2.6
In addition the annual report must include a letter of transmittal
and aids to access - such as a glossary, index, table of contents and contact
details.[3] The
NNTT’s compliance is set out below.
Compliance with formal requirements
President’s overview
2.7
The President’s report notes that the work of the tribunal
was significantly affected by the High Court decisions in Western Australia v Ward,[4] Wilson v Anderson[5] and Members of the Yorta Yorta Aboriginal Community v Victoria.[6] As a result of these
judgements, the Tribunal and the parties which use it were compelled to
reassess aspects of Native Title law and practice.[7] In evidence to the
Committee, the President of the Tribunal explained that:
... the cumulative effect of those judgements was to slow down a
number of processes under the Act, including the resolution by agreement of
claimant applications. Suddenly we had to find out which areas of land were still
susceptible to claim.[8]
2.8
The Committee notes the impact of these decisions and
in this report observes the effect they have had on the Tribunal’s predicted
workloads.
2.9
In its report on the NNTT Annual Report for the year
2001-2002,[9] the
Committee noted that more detailed information on the Tribunal’s future prospects
and trends would be more informative. The Committee is pleased that this detail
has been provided this year. The President’s report identifies eleven trends,
including the increasing clarity of the law on native title; an increase in the
volume of native title work; an emergence of agreement making as the usual method
of resolving native title issues; reduction in timeframes, and the effect on the
quality of agreement making of the available resources. This allows the Committee
to better gauge the Tribunal’s progress from year to year.
2.10
In the last
Report on the Annual Report, the Committee also noted that there was no mention
of the financial performance of the Tribunal in the President’s review.[10] This has
occurred again in this year’s Annual Report.
2.11
While this is clearly dealt with in depth elsewhere in the
Report, the Committee believes that there should be a statement about the
general financial trends of the Tribunal from the President. The Committee
would like to see this in future Annual Reports.
Tribunal Overview
2.12
The Tribunal retains its single outcome: the recognition
and protection of native title. The overview complies with the requirements in
setting out the organisational structure, as well as the role and function of the
Tribunal. The section of the report which deals with Tribunal members has been
moved - appropriately in the Committee’s view - to the 'Overview' section of the
Annual Report rather than being reported under 'Corporate governance'.
2.13
The four output groups for the Tribunal are: registrations,
agreement-making, arbitration and assistance, and notification and reporting. They
remain unchanged from the previous annual report.
Performance
Financial performance
2.14
For the third year in succession, the Committee notes that
there were 'lower than expected activity levels'[11] this year, which
resulted in an underspend of the allocated $29.632m by $1.977m. There are
underspent items which are common to this annual report and that for 2001-2002.
They include:
-
output 1.1.2, Native Title Determinations;
-
output 1.2.1, Indigenous Land Use Agreements;
and
-
output 1.3.1, Future Act Determinations.
2.15
In evidence, the Tribunal confirmed that the surplus
has been repaid to consolidated revenue. The Registrar told the Committee:
We are coming into the last year in 2004-05 of the current estimates
cycle. There is a funding figure roughly equivalent to this year ... set down for
the final year. We then come into a new estimates cycle, and there would have to
be a rebasing of the tribunal’s budget for the estimates cycle beginning from
2005-06.[12]
2.16
The Committee therefore expects that based on the
current estimates cycle that there may also be a surplus next financial year,
but that a more realistic set of estimates of expenditure and outputs will come
into operation thereafter.
Outcome and output performance
2.17
As with the previous annual reports, the Tribunal
provides 'performance at a glance' tables which show the unit cost as well as the
total cost of each output, against the estimates for each output.
2.18
The Tribunal annual report indicates that its budget
planning is consistent with the statutory requirements. The annual report also
reproduces its comments from 2001-2002 regarding the difficulty of
benchmarking, in the light of the nature of the Tribunal’s work.
2.19
The Committee acknowledges that there may be some distinct
variation in the work of the Tribunal from year to year, and also acknowledges the
comments made by the President in evidence:
In the year covered by this report, the High Court and the
Federal Court delivered landmark decisions that affected a range of activities,
including the registration and testing of claimant applications, the mediation
and settlement of claimant applications, the areas over which native title might
or might not be found to exist and hence the areas where procedural rights
under the Native Title Act may or may not be exercised. One consequence of those
decisions was a slowing down of some activities and some lower than expected outputs.[13]
2.20
However the resource usage also indicates that although
the allocated funds are underspent, the unit cost exceeds the estimated cost,
frequently by a considerable amount. As with previous years, the Committee
remains concerned at this trend.
2.21
The Tribunal has
now been in existence for over ten years, and the Committee considers that some
analysis of the directions the Tribunal has taken over that period should be
undertaken in order to predict trends in the future, and provide a contextual
view of the Tribunal’s performance in relation to other Tribunals and similar
quasi-judicial bodies.
Management and accountability
2.22
The Annual Report complies with the requirements for this
part. In its previous report, the Committee noted the importance of the policy
development groups, in particular work of the agreement-making strategy group,
which has developed an agreement-making model in accordance with best practice.[14] The Committee
notes that this work has progressed with the model being the subject of training
and implementation by the agreement-making strategy group.[15]
Employment
2.23
The Committee noted that the Tribunal reported the
resignation of 27 employees, representing 9.85 per cent of the workforce. In the
previous reporting period this figure was 7.02 per cent. The Tribunal told the
Committee that this was due to a combination of factors, including the length
of time the Tribunal has been operational and the consequent moving of
experienced and well-trained staff into related but non-Tribunal areas.
2.24
Indigenous employment increased over the period, and the
Committee notes that its request for more information on indigenous employees
has been provided this year. In particular, the Tribunal focused on training
and career development, and over several days held a workshop for indigenous
employees which covered such issues as:
-
the role of the indigenous employee in an
organisation such as the Tribunal;
-
responding to family and community about the nature
of their work, and what they can achieve as indigenous tribunal employees; and
-
the ways in which the indigenous employees could
contribute to the administration and policy setting for the Tribunal.[16]
2.25
A report and strategy paper were provided to the Tribunal
at the end of the conference.
2.26
The Tribunal observed that some of the Indigenous
employees who have left may have done so through disappointment with the work
of the Tribunal, due to the limitations inherent in its statutory basis and the
associated distance from advocacy or community work. In evidence, the Registrar
noted that some indigenous employees have interests in these areas and have returned
to assist their communities.[17]
2.27
However, the Committee also notes that former Indigenous
staff often continue to contribute to the agreement making process in other
capacities, and so the experience gained from the Tribunal is not lost to the
overall native title system.
2.28
The Committee commends the Tribunal for taking providing
this additional information, which was a positive inclusion in this year’s
Report. The Committee looks forward to an update on the implementation of
conference initiatives in the 2003-2004 Annual Report.
Audit report and financial statements
2.29
These are set out at Appendix VII to the Report, and
have been appropriately certified by the Auditor as giving a true and fair view
of the financial position of the Tribunal as at 30 June 2003.
Other mandatory information
2.30
The Requirements stipulate that the report should
include the following information:
-
occupational health and safety performance;
-
advertising and market research; and
-
letter of transmission and aids to access.
2.31
The Committee notes that the Tribunal has complied with
these requirements, and has also complied with the requirements for presentation
to the Minister and for tabling.
The work of the NNTT
2.32
The Tribunal has one outcome: the recognition and protection
of Native Title. There are four output groups which contribute to achieving this:
-
assistance, initiatives, notification and reporting.
2.33
The Tribunal notes that as was the case last year, there
is considerable variation between estimates and the actual outcomes in any
given output category.
2.34
The Tribunal attributes this to two main causes:[18]
-
the number of significant court decisions affecting
the claim mediations, and other processes in unpredictable ways; and
-
delays occurring when parties and their representatives
were either considering the consequences of a case or awaiting the outcome of
one.
2.35
The Tribunal’s report and evidence demonstrated this
effect on the individual output categories within each group.
Output group 1.1 Registrations
2.36
In each output group there are subcategories. The Registrations
group includes:
-
Native Title determinations; and
2.37
As with previous Annual Reports the Committee finds the
'performance at a glance' tables, which are included in the output group reports,
a concise and informative tool for interpreting the Annual Report.
2.38
In each category of Registration, the Committee notes the
anticipated activity levels have not been realised, and the unit cost has been
considerably more than anticipated. The following table illustrates this:
Output
|
Estimate number
|
Actual number
|
Estimate unit cost $
|
Actual unit cost $
|
Claimant applications
|
120
|
110
|
27,736
|
35,584
|
Native Title Determinations
|
20
|
3
|
21,283
|
32,666
|
ILUAS
|
55
|
36
|
25,589
|
31,046
|
2.39
The Committee notes in this output group that although the
unit cost is more than anticipated, the overall cost is less, because of the
reduced number of actual registrations received. The other output categories
are in a similar position. This is comparable to the situation reported in the
previous year.
Output group 1.2 Agreement making
2.40
The output group 'agreement making' includes:
-
indigenous land use agreement making;
-
claimant, non-claimant and compensation agreement
making; and
-
future act agreement making.
2.41
The effect of the slowing in activity attributed to the
court decisions, referred to previously, is clearly seen in this output group. In
Indigenous Land Use Agreement Making (output 1.2.1), the overall output cost
was $1.8m less than the estimate of $3.77m. The Committee also notes the Tribunal’s
comment that in the case of ILUAS, it is not necessary for the Tribunal to be
involved, and this makes predicting the cost and extent of that involvement
difficult to estimate.
2.42
For claimant, non-claimant and compensation agreement-making
(output 1.2.2), there were only claimant agreements made, (60 compared to an estimated
100) and the highest number was in Queensland.
The Tribunal notes that the decisions in Yorta Yorta, Ward, Wilson and
De Rose had the effect of delaying
agreements while the parties assessed the consequences of the decision for them.[19]
2.43
Similarly, for
output 1.2.3 - future act agreement-making - the Tribunal cannot influence the
number of objection applications and future act determination applications
lodged, although, once lodged, the process and therefore the number of
conferences is to some extent within the Tribunal’s control.[20] For this
reporting year there were 55 agreements mediated by the Tribunal (compared to 60
last year).
Output Group 1.3 Arbitration
2.44
The two outputs are:
-
future act determinations; and
-
objections to expedited procedure.
2.45
The first output
refers to the number of determinations made as to whether or not a future act
may proceed. There were 56 determinations in the reporting year (90 were predicted)
compared to 19 in the previous year. The Tribunal suggests this is partly a
result of promoting future act consent determinations as a means of fast tracking
agreements.
2.46
The unit cost ($18,051) was a little less than that
predicted ($18,850), and much less than the cost last year ($54,996).
2.47
For the second output, the actual number (917) was
similar to last year (909), and the unit cost $500 less than the estimate of
$3416.
Output
group 1.4 Assistance, notification and reporting
2.48
There are three parts to this group:
-
assistance to applicants and other persons;
-
reports to the Federal Court.
2.49
The first output has been separated into contacts, events
(including specific research projects, and educational programs and seminars)
and initiatives, which includes capacity building projects for native title participants,
and is a new category included in this report. The Tribunal includes a
comprehensive account of the type of assistance (for example: information on preparation
of applications, notifications, application/registration information) provided to
applicants and other persons as well as the information about the states in
which it is given. The state recording the most assistance was Queensland
followed by NSW and Western Australia,
and the area of greatest assistance was application/registration information,
including searches.
2.50
The Tribunal explains that there was a greater need for
assistance resulting from the Court decisions mentioned previously, as parties
endeavoured to understand the implications of the decisions.[21]
2.51
In the area of notification, the Committee notes that the
results were similar to last year in both overall cost and volume.
2.52
There were fewer than anticipated Federal Court notifications,
and the Committee notes that the overall cost was less than estimated, but that
the unit cost was more. The Tribunal notes the effect of the High Court cases
on activity as the expected level of Federal Court reporting was not achieved because
the court did not request the number of reports anticipated.
Comment
2.53
The Committee again raised the issue of performance estimates
and costings with the Tribunal at this year’s hearing. The Committee heard that
this is the third year that the Tribunal has had to report in this way: that
is, through estimating performance against a set of indicators, and then
responding to the results.[22]
2.54
The comprehensive nature of the information provided by
the Tribunal expands the Committee’s understanding of the Tribunal’s work. In
evidence, the President said:
The documents start as documents which have to comply with
various government requirements. We are more than happy to be transparent in that
sense so long as the readers including this committee, appreciate that there is
much more to it than that. Hence in my overview I try to give at least some
allusion to the underlying human elements which really drive the process and, ...
motivate us in our work.[23]
2.55
The Committee notes that 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 nature of the processes involved
are inherently unpredictable, and one arbitration may be concluded in a short time,
and others take much longer - yet each is a unit to which must be ascribed a
cost.
2.56
The Committee believes that there is a need to bring the
performance figures closer to the estimates, and was told in evidence that there
will be a rebasing of the Tribunal’s budget for the estimates cycle beginning
2005-06.
Consultants
2.57
There was an increase in the expenditure on consultants
in 2002-2003. The amount increased from $1,342,302 to $1,808,355. Most of this
is accounted for in the area of IT expenditure. The Tribunal indicated in the
annual report, that as a result of the consultant’s report some of its IT
requirements will be undertaken in-house.[24]
2.58
Included in the IT strategy is the Geospatial and
Mapping unit. While acknowledging the important contribution of this unit, the
Committee was concerned that the unit is not given discrete treatment in the
report, and the associated cost is not clear.
2.59
The Registrar indicated that the geospatial work of the
Tribunal will be reported upon more fully in the coming year.[25]
Client Survey
2.60
During the year the Tribunal undertook a survey of
client satisfaction, which demonstrated 65 per cent overall satisfaction with
all output areas. The Tribunal reports that the results will be used to determine
whether changes to practice, business processes or strategies are required.[26]
2.61
The Committee looks forward to receiving information
regarding these strategies in the next annual report.
Conclusion
2.62
As indicated, the Committee considers this report to be
informative beyond the basic requirements for Commonwealth Departments and
agencies.
2.63
The Committee’s concern is the estimating process for
both the volume of work and associated expenditure. The Committee appreciates the
unpredictability of some of the factors which affect these outcomes and it may
be the case, as has been suggested, that in its current form the Annual Report is
not the most comprehensive way to reflect the work of the Tribunal. The
rebasing budgetary process for 2005-2006 may assist the Tribunal in its reporting.