Submission - Native Title Act 1993 regarding the Native Title Representative Bodies (2006)

27 February 2006

Mr Peter Vaughan
Group Manager
Land and Resources Group
Office of Indigenous Policy Coordination
Department of Family and Community Services and Indigenous Affairs

Dear Mr Vaughan

Changes to the Native Title Act 1993 regarding the Native Title Representative Bodies

In your letter of 20 January 2006, you seek my views on the proposed changes to the Native Title Act 1993 (NTA), in particular, the effect of the proposed changes regarding Native Title Representative Bodies (NTRBs). Thank you for the opportunity to comment on this important matter. The following submission includes my comments on the proposed reforms.

1. Extension of recognition to other incorporated bodies: Under the current arrangements the full range of native title services are restricted to bodies incorporated under the Aboriginal Councils and Associations Act 1976. Limited functions can be carried out by bodies incorporated under the Corporations Act 2001. Under the proposed reforms, incorporated bodies under the Corporations Act 2001 will be able to fulfil all NTA functions in the same way as NTRBs.

My concerns with this proposal are that under the new provisions, bodies incorporated under the Corporations Act 2001, will not be representative of Aboriginal and Torres Strait Islander peoples. The representative nature of NTRBs is an important feature because it requires a relationship between the service deliverer and the native title claimants. A withdrawal of the representative feature of NTRBs may have adverse impacts on the appropriateness and the quality of services to native title claimants.

The relationship between NTRBs and native title claimants is particularly important given that the NTRB functions and requirements include representation, facilitation, assistance, advice and notice to native title claimants under sections 204 BA, BB, BG and BJ, of the NTA. For example, s203BJ(b) requires a NTRB:

as far as is reasonably practicable, to identify persons who may hold native title in the area for which the body is the representative body…of any matter that the representative body considers may relate to, or may have an impact upon, native title

If the NTRB is not representative, its ability to undertake these important responsibilities may be limited. From a human rights perspective, there is a danger that Indigenous peoples’ right to effective participation may be compromised where the body is not representative.

2. Simplified de-recognition: Under the current arrangements NTRBs can be deregistered for the following: unsatisfactory representation, not consulting effectively, not satisfactorily performing its functions and not taking steps to address these issues within a reasonable period (s203AH(2)). I also understand that a notice period (including a show cause provision) of at least 90 days is contained in the current provisions (s203AH(3)). The proposed reforms introduce changes to de-recognition of NTRBs for reasons of unsatisfactory performance, and/or significant financial irregularities and provide for a 60 day response period to a show cause notice.

While in principle I support tight accountability processes, I require more detail on this reform in order to provide comment. For example, I require information about the process for de-recognition, including avenues for review, particularly if the Australian Government intends to reduce the notice period from 90 to 60 days. 

NTRBs should be closely consulted about intended de-recognition processes.  It is essential that unsatisfactory performance and financial irregularities be clearly defined and transparently adjudicated. If not, de-recognition processes could place NTRBs in the invidious position of having to find legal representation themselves in order to defend their existence as well as provide legal representation to their clients. Should this occur, the drain on capacity and resources will have a detrimental effect on native title outcomes for Indigenous peoples. 

3. Periodic re-recognition: The current arrangements do not specify an expiry for NTRB recognition. The proposed reforms will require all NTRBs to be recognised for variable terms from between one and six years.

Pursuing native title claims can be a lengthy exercise. Therefore it is important that appropriate consideration is given to the time that is required to finalise claims. My main concern with this reform is with process. The crux of this reform will be the conditions and the rationale for deciding the recognition period. I would like to be appraised of the rights of review that NTRBs will have under these proposed changes.  On a related matter, it is important that the recognition term is not used to create a quasi de-recognition process, where NTRBs exit the system because their recognition period has expired. In my view, NTRB involvement in this reform is required so as not to replicate the involved and cumbersome recognition process experienced following the 1998 NTA amendments, and to avoid lengthy and protracted negotiations over NTRB recognition in future. 

4. Multi year funding: Current arrangements provide for funding on a yearly basis. The proposed reforms provide funding up to 6 years and with links to the recognition period.

It is pleasing to note the reform to multi year funding. A multi year approach to funding will assist NTRBs in carrying out their functions and hopefully enable more time and resources to be devoted to claims rather than administrative matters such as funding applications and renewals.

The level of financial resources provided to an NTRB has a significant influence on its capacity to perform its role in the native title system. This in turn, has a direct impact on the enjoyment by Indigenous people of their human rights as well as the workability of the native title system. Inadequate funding of representative bodies has had the cumulative effect of undermining NTRB’s capacity to protect Indigenous interests in the native title process. Accordingly, it has diminished the extent to which Indigenous people can enjoy their land, their culture, and the social, economic and political structures built upon them. In effect, it has diminished Indigenous peoples’ enjoyment of their human rights.

The need to increase NTRB funding has been recommended in the reports and reviews of government agencies, parliamentary committees, state governments and industry. Despite the recommendations to this effect of the Parker Report (1995), the Love-Rashid Review (1999) and the Miller Review (2002), NTRBs have not received funding increases. In fact, if these reforms are implemented, NTRBs will require further funds, as it is likely that their obligations and functions will change.

Concluding comments

Appropriate accountability measures are important not only for NTRBs, but for all bodies in receipt of public monies. Notwithstanding, the degree of accountability required of NTRBs by the Australian Government should be identical to that which is required of other funded parties in the native title system. In the past, the Australian Government has increased the funding for the National Native Title Tribunal, to respondent parties in receipt of legal aid assistance, and to the Federal Court. None of these funding increases were accompanied by governmental or parliamentary inquiries into the performance of the recipient party.

The increased accountability requirements directed to NTRBs have not been applied to other recipients of public funds for native title functions. Furthermore, while various reviews have been commissioned on the efficiency and effectiveness of NTRBs, no similar assessment has been conducted in relation to respondent parties.

While I acknowledge that there is room for improvement in the functioning of NTRBs, reform in this area should be directed to evaluated shortcomings. It is important that there is appropriate consultation and recognition of the interests of the native title groups who are at the receiving end of NTRB services. In order for reform to be effective, it must be measured against the problems that it seeks to overcome as well as the environment that it then creates.

Thank you again for the opportunity to provide comments on these reforms. 

Yours sincerely

Tom Calma
Aboriginal and Torres Strait Islander
Social Justice Commissioner