What's New in Native Title - March 2015
- Case Summaries
- Legislation
- Native Title Determinations
- Registered Native Title Bodies Corporate & Prescribed Bodies Corporate
- Indigenous Land Use Agreements
- Future Acts Determinations
- Native Title in the News
- Related Publications
- Training and Professional Development Opportunities
- Events
Correction
Our legal team wish to apologise for providing incorrect information in a case summary in the originally published version of this March 2015 edition of ‘What’s New’.
We stated that, in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204, Justice Barker of the Federal Court of Australia dismissed a native title application. That is incorrect. Rather, on 12 March 2015, the Court ordered it was to hear from the parties as to the terms of the final orders to be made. Since this matter was heard and following the filing of the State of Western Australia’s further written submissions, the Court made orders that judgment as to the final orders be reserved.
The case summary has been updated accordingly.
1. Case Summaries
12 March 2015, Native title determination, Federal Court of Australia – Perth, WA, Barker J
CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204
This matter relates to the Badimia People’s application for native title in relation to land and waters in the vicinity of Mount Magnet in the Murchison region of Western Australia. In this case, the matter was listed for final hearing on 10 April 2015 and Barker J ordered that the Court was to hear from the parties as to the terms of the final orders to be made.
This case has a long history beginning with an initial claim by the Badimia People in 1998. In 2012, the Badimia People made a further claim, under s 47B of the Native Title Act 1993 (Cth) (NTA) (which applies when vacant Crown land is covered by an application). The Court treated the two applications as one.
In this matter, Barker J considered various connection and extinguishment issues in some depth. His Honour explained at [6] and [7] that issues going to the existence of native title are often referred to as ‘connection issues’ and that other issues, particularly those going to the nature and extent of native title in light of post sovereignty acts are often referred to as ‘extinguishment issues’.
Connection Issues
Barker J relied on Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta) to set out what he considered to be the four key, although overlapping, connection issues:
- whether the claim area was Badimia country at sovereignty
- if so, whether the apical ancestors identified by the claimants were Badimia people
- if so, whether the native title rights and interests now claimed by the claimants can be said to be possessed under traditional laws and customs and
- if so, whether the claimants presently have a connection with the claim area by those traditional laws and customs.
Whether the claim area was Badimia country at sovereignty
Barker J referred to the following examples, at [12] and [13], where connection issues might arise:
- if a group migrates to the country, subsequent to sovereignty (see AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268); or
- where a group are the traditional owners, but all members of the claimant group cannot trace their ancestry to traditional owners at sovereignty (see State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143)
European records concerning Aboriginal connection with the claim area were limited and Barker J stated at [17] that this impacted on ‘what reasonable inference may be drawn by the Court’. His Honour referred to ethnographic material and found, at [19] that, while this material referred to Badimia people, ‘none provides a precise account of their culture or the location of their traditional country.’
At [21], Barker J set out that the historical association of the claimants and their old people was not in doubt. Rather, what was at issue was the traditional association of the claimants and their ancestors with the claim area.
Barker J considered the evidence of the claimants and the experts at [114] to [207] and, although recognising that a degree of imprecision and difference of opinion is to be expected in relation to Aboriginal concepts of boundaries (see De Rose v State of South Australia [2002] FCA 1342 and Commonwealth of Australia v Yarmirr [1999] FCA 1668), his Honour noted at [202] that the degree of imprecision went ‘beyond debate at the margins’.
At [205], Barker J stated that:
… the Court is unable confidently to infer that the knowledge of present witnesses reliably describes the boundaries of traditional Badimia country as they were at sovereignty.
Barker J’s finding at [208], that the claimants had not proved that the claim area was traditional Badimia country at sovereignty, was enough to support an order that the claim be dismissed. However, Baker J went on to consider the other three connection issues.
Whether the apical ancestors were Badimia People (at [210]-[339])
Barker J found that only the descendants of four of the 18 named apical ancestors were Badimia people. His Honour stated, at [338] that:
these findings, taken with the Court’s earlier finding that the claimants have not established that the claim area was traditional Badimia country at sovereignty, also lead to the result that the claim should be dismissed.
Whether the claimed rights and interests were possessed under traditional Badimia laws and customs (at [340]-[435])
His Honour considered the meaning of ‘traditional’, as discussed in Yorta Yorta and ‘society’ as discussed in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9.
Barker J also considered the competing evidence provided by the expert anthropologists, the State’s extensive submissions and the evidence provided by the applicants with respect to the claim that the ‘traditional’ laws and customs included religious practices, spirit beings, traditional enforcement, initiatory rites, country rites, cultural landscape, creation stories, localised knowledge of country, and a hunter/gatherer economy.
His Honour found, at [434] that:
the Court is not satisfied that the laws and customs of the claimants under which they presently claim rights and interests are to arise, are “traditional” as required by s 223 NTA.
Whether the claimants had maintained a connection with the claim area by traditional law and custom (at [436]-[493])
Barker J considered the evidence provided by the State and by the applicants with respect to continuity of acknowledgement of traditional laws and customs and stated, at [468] that:
… the claimants, in the Court’s judgement, have not established by satisfactory evidence that the current laws and customs giving rise to those rights and interests are rooted in sovereignty laws and customs.
And, at [480] said that the evidence suggested the rights and interests belonged to a “new” society, borne of post-sovereignty disruption to the pre-sovereignty group.
Extinguishment Issues
Although stating that it was not strictly necessary in this case, Barker J engaged with extinguishment issues, at [497] to [1153] as follows:
- general principles relating to extinguishment
Barker J applied the position taken by the High Court in Western Australia v Brown [2014] HCA 8, Western Australia v Ward (2002) 213 CLR 1 and by the Federal Court in Banjima People v State of Western Australia (No 2) [2013] FCA 868 and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 and summarised the relevant approach at [500], as:- a Court must make an objective assessment of whether the relevant rights and interests granted in the claim area are inconsistent with native title rights and interests
- it is necessary to first identify the relevant rights by reference to their legal nature and content, and not by the way they have been, or will be, exercised
- the question whether two or more rights are inconsistent is determined by reference to the nature and content of the rights as they stood at the time of the grant of the allegedly inconsistent rights
- in this respect, in Brown at [37], the High Court held that to the extent the decision in De Rose (No 2) supports a notion that extinguishment might be contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted, this decision is wrong and should not be followed.
- whether certain acts had wholly or partially extinguished native title
Discussed at [546] to [880] these acts included the creation of freehold estates, pastoral leases, special leases, freehold leases, residential leases, reserve leases, nature reserves, reserves the subject of public works, and mining tenements.
Barker J was satisfied that the creation of most interests in the claim area were valid. However, some interests did not appear validly created or did not otherwise extinguish native title. These included certain freehold titles granted after 23 December 1996, special leases, residential leases and certain reserved leases created without execution of required formalities and reserves created for the purpose of being “exempted from sale”.
Barker J rejected the applicants’ submissions that a qualified right to control access survived the creation of certain interests, but found that the creation of these interests only extinguished the native title right to control access, and not other native title rights. These interests included mineral leases and claims (including dredging claims), state forests and prospecting areas.
The Court also treated favourably the applicants’ objection to the inclusion of a generic public works clause in any native title determination.
- whether certain acts done prior to 23 December 1996 are valid.
These acts were discussed at [881] to [900] and included the creation of reserves and mining tenements. His Honour found that:
- reserves for the purpose of “exempted from sale” were not valid; and
- mining tenements, where a condition precedent (in this case, a relevant survey) had not been fulfilled, were not valid.
- whether certain acts done after 23 December 1996 are valid future acts.
These acts were discussed at [915] to [978] and included the creation of freehold titles over land subject to special leases, land subject to compulsory acquisition, a reserve for the purpose of “rubbish disposal site” and various mining tenements. Some mining tenements were found to not have been validly created.
- whether the second Badimia application should be dismissed
The State sought to have the Badimia #2 application dismissed as an abuse of process. Barker J agreed that the filing of the #2 application was designed to take advantage of the operation of ss 47, 47A and 47B NTA. However, his Honour did not consider that this was an abuse of process and, at [1018] said that the #2 claim should not be dismissed.
- whether extinguishment was to be disregarded
This included considerations from [1021] to [1153] of:
- pastoral leases held by native title claimants
Barker J found that there was no evidence that the pastoral leases in question had been held by or on trust for the native title claimants and, therefore, extinguishment could not be disregarded by application of s 47 NTA.
- reserves covered by claimant applications
Barker J found that the evidence provided did not establish occupation with respect to the Paynes Find Aboriginal Reserve or Mount Magnet Aboriginal Reserves provided for under s 47A NTA)
- vacant crown land covered by claimant applications
Barker J looked at various areas and detailed specifically for each area why the Court found that the claim group had not provided sufficient evidence of occupation of unallocated Crown land sufficient to apply s 47B NTA.
16 March 2015, Power of Court to make a negative determination, Federal Court of Australia – Brisbane, QLD, Jessup J
Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210
This decision gave effect to orders Jessup J made on 27 January 2015, in Sandy on behalf of the Yugara People v State of Queensland [2015] FCA 15. In that case, Jessup J found that the Yugara/Yugarapul and the Turrbal people did not have native title in the Brisbane metropolitan and surrounding areas.
A summary of that case is available in the January 2015 edition of What’s New in Native Title.
Orders sought by the Native Title applicants
The Yugara/Yugarapul people asked the Court not to make a final determination and to allow them to re-open their case for the purpose of leading additional evidence.
At [4] Jessup J stated:
the proceeding to date has involved a final hearing on the merits, in which the Yugara applicants had, and exercised, the full participation rights of any party. There is nothing before the court that would justify taking the exceptional – and, it must be said, remarkable – step of allowing them to re-open their case on no better ground than that, with more time at their disposal, they might be able to find more evidence that would support their claim.
The Turrbal people sought that the order made on 27 January 2015 should be stayed for six months.1 This would allow consultation with extended kin, with a view to re-formulating a wider society native title application.
Jessup J rejected this submission, stating at [5], that ‘it contemplates the formulation and conduct of a new case, which is no proper ground for the court to stay proceedings.’
The State asked the Court should proceed to make a determination under the Native Title Act 1993 (Cth) NTA) that native title does not exist in relation to land and waters in the claim area.
Queensland South Native Title Services (QSNTS), who were not involved in the previous matter, were joined to this matter and argued that the Court had no power to make a negative native title determination.
Main Issue Raised by QSNTS
QSNTS accepted that s 13 NTA empowers the Court to make a negative native title determination on an area whether there is no approved determination. However, QSNTS referred to the Full Federal Court decision in Commonwealth of Australia v Clifton [2007] FCAFC 190 (Clifton) and submitted that the Federal Court may not make a determination (in favour or against a person) if the person has not made a native title determination application under s 61 NTA in relation to the area in question, but who is a respondent to such an application brought on behalf of a claimant group which does not include him/her.
In Clifton, the Full Court looked at the procedure for native title applications under s 61 NTA. This includes that:
- the applicant must provide an affidavit verifying that the applicant is appropriately authorised by the claim group;
- the Registrar of the Federal Court must give the Native Title Registrar a copy of the application and any affidavit accompanying it; and
- the Native Title Registrar must give notice of the application to certain relevant parties.
The Full Court identified that there is no equivalent obligation to give notice of any claim advanced by a respondent to a s 61 application. Their Honours also highlighted the Court’s obligation to refer for mediation every application under s 61 NTA (except where the Court considered the matters in s 86B (4) NTA and ordered otherwise).
The Full Court did not think that the legislature intended a counter-claim to be free from the requirements for authorisation and to engage in mediation that every application brought under s 61 NTA must meet.
QSNTS’s submissions in reference to s 61(1) NTA is that it allows for native title determination applications to be made by persons who do not claim to be native title holders and, therefore, the State could conformably have made an application under that section. If the respondent in Clifton was told that he ought to have made an application of a kind contemplated by s 61(1), there was no reason why the same advice ought not to be given to someone who held a non-native title interest in the land, to the Commonwealth or to the State.
Jessup J rejected QSNTS’s submission stating at [15]
there is nothing in the reasons of the Full Court in Clifton to indicate that the particular question now in issue was under consideration to any extent. In the circumstances, I do not think that Clifton should be regarded as authority for anything beyond the matter covered by the question identified at the outset of their Honours’ reasons .Furthermore, the reasoning in Clifton does not require me, by a process of extension, to answer a corresponding question, this time relating to the position occupied by the State, in the negative. In other words, Clifton is to be distinguished.
Jessup J also concludes at [19] that the court has power to make a determination that native title does not exist in a native title claim area. This was in response to QSNTS submission at [6] that the court did not have power to that effect. In his reasoning, Jessup J states at [17]:
it is one thing to deny that, without the authorisation, publication and other procedures required by the Act, someone who is merely a respondent to the application of another group may advance a claim that native title exists. It would be, in my view, another thing altogether to hold it to be beyond the power of the court to rule that native title did not exist in the area in question because no-one had made a formal application in that regard. There is neither inconvenience nor injustice in taking the view, as I do, that such a holding would be wrong.
Other considerations
Jessup J rejected all other propositions advanced by QSNTS. This included a submission that alternative claimant applications were ‘conceivable’ in that the evidence disclosed by the SERRP research project conducted by QSNTS disclosed the ‘possible existence of other traditional societies at sovereignty in the claim area.
Jessup J noted that the research project would be available in April 2015 but opted not to wait for the research report, stating at [29]:
neither of the applicant groups sought the deferral of the trial to await the outcome of the SERRP research. Both opposed the State’s application in October 2013. They were content to have the case proceed on the evidence which had been filed in accordance with the court’s directions.
And concluding at [32]:
the imminent delivery of Dr Redmond’s final report does not make a positive contribution to the QSNTS case that a negative native title determination should not be made.
Jessup J also rejected an application by an eighth respondent who submitted that the court should not make a negative native title determination. Noting at [38] that
..the position adopted by Mr Ruska involves the proposition that a person who has grounds for a belief, and does believe, that he holds native title in relation to an area of land or waters may participate by way of non-active respondency to the claim of another group over that land and those waters, may decline to make his own application and have it joined with the existing one, and may then, after the existing case is resolved unfavourably for the applicants in it, make his own application for recognition of native title. For someone to be permitted to proceed in that way would, in my view, bring the administration of native title claims in the court into disrepute. There is, in my view, a strong public interest in having every known claim over a defined area brought forward for adjudication in the one proceeding.
19 March 2015 (includes Corrigendum dated 10 April 2015), Application to discontinue native title determination application, Federal Court of Australia – Brisbane, QLD, Logan J
Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300
In this matter, Logan J dismissed the Yirendali People’s application to discontinue a native title determination application.
Background
In December 2006, the Yirendali People filed an application for a determination of native title over a large area of land in Queensland based around Hughenden, with a majority of the land claimed falling within the Flinders Shire Local Government area.
The North Queensland Land Council (NQLC) had ceased to act for the applicant in July 2010. Thereafter the applicant had chosen to deploy moneys received by way of future act compensation towards the costs of prosecuting the application. After the NQLC had ceased to act, the applicants were able to successfully show cause why the matter should continue and, thereafter, the matter had been subject to intensive case management. This resulted in, what Logan J described at [27] as:
a great deal of work has been undertaken by the parties with good will and also guidance from the registrar. That has resulted in agreement being reached in relation to whether particular types of tenure extinguish or do not extinguish native title within the claim area. Much of the claim area is the subject of types of tenure which would either extinguish or at least partially extinguish native title.
Other orders in case management was in relation to the existence of connection. The Commonwealth was prepared to consent to connection and at [30], Logan J expressed his wish, if it were lawfully possible to divide the application and leave only the contested portions to trial. However, s 87A of the Native Title Act1993 (Cth) requires the consent of all parties, not just the Commonwealth. His Honour stated:
… the position is that the case is one which requires an exercise of judicial power in order to determine, in the first instance, the separate issue of connection and, depending on that outcome, other issues, perhaps also including that pleaded on behalf of the pastoralists.
The issue of connection had been set down for trial for 29 June 2015. However, the applicants did not have the funds to incur the costs and expenses of the trial and sought leave to discontinue the proceeding.
The respondents’ position regarding the application to discontinue
Of the 55 respondents in this matter:
- the Commonwealth and the State consented to the Court granting the Yirendali People’s request (although the State did set conditions, which Logan J considered would not be appropriate in the circumstances to apply);
- the local governments and pastoralists asked the Court to refuse the request;
- Glencore Coal Queensland Pty Ltd took a neutral position; and
- Telstra, Australia Pacific LNG and the self-represented respondents did not appear.
Discontinuation – Legal framework
The Federal Court rules give the Court an unfettered discretion to grant leave to discontinue. In Levinge on behalf of the Gold Coast Native Title Claim Group v State of Queensland [2013] FCA 634 (Levinge) at [49] Rares J , while referring to Visyboard Pty Ltd v Attorney-General for the Commonwealth [1984] FCA 52set out that it would be contrary to the interests of justice, the parties and the community to grant leave to discontinue and allow the applicant to commence fresh proceedings as and when the applicant chose. In this case, the proceedings had been on foot for over seven years and the applicant had full opportunity to litigate its claim. Also in that case, at [18] and [19], Rares J discussed the Court’s reluctance to accept a lack of funding as a sufficient reason to delay a trial.
Logan J applied the same reasoning as that used in Levinge, stating at [33]
I am most firmly of the view that to grant leave to discontinue in these proceedings, given their history, would bring the administration of justice into disrepute. That particular conclusion I reach just on the history of the present application. That position is underscored, not reached, by reference to earlier litigious history in relation to native title with respect to some or all of the subject land by persons having common apical ancestors to those in the present native title claim group
Award of Costs
Logan J did not order costs against the applicant because the applicant brought the application as soon as it became apparent that it could not secure a consensual determination and realised its funds were not sufficient.
4 February 2015, General Division, Federal Court of Australia – Adelaide, SA (heard in Darwin, NT), Mansfield J
Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36
This case concerned a dispute over the distribution of mining royalties among the Rirratjingu, Gumatj, and Galpu Yolngu clans. The relevant mining operations are on certain Aboriginal land in the Gove Peninsula, North East Arnhem Land, Northern Territory.
The Rirratjingu Aboriginal Corporation (RAC) and 16 senior members of the Rirratjingu clan prosecuted the claim. The respondents were:
- the Northern Land Council (NLC);
- the Gumatj Aboriginal Corporation (the GAC);
- Djalu Gurruwiwi (a senior member representing the Galpu in the proceedings); and
- an Aboriginal senior member of the Gumatj said to represent that clan.
It is worth noting that there was controversy about the Rirratjingu’s representation and that a number of the senior members of the Rirratjingu clan who were also applicants in the matter did not support the proceedings.
Background
Under an agreement made on 26 May 2011 (the Gove Agreement) between:
- Swiss Aluminium Australia Pty Ltd and Gove Aluminium Ltd (RTA);
- the Arnhem Land Aboriginal Land Trust (Land Trust);
- the Northern Land Council (NLC); and
- representatives of the Rirratjingu, Gumatj and Galpu (together considered by the NLC to comprise the traditional Aboriginal land owners)
the NLC was tasked with receiving mining royalties and making payments of an amount equal to the amount received to, or for the benefit of, traditional Aboriginal land owners. These payments were to be made quarterly, and were apportioned by the NLC in accordance with a geographical breakdown [23] of traditional Aboriginal ownership.
Accordingly, the NLC apportioned the payments as:
- 26.87% to the Rirratjingu;
- 72.61% to the Gumatj; and
- 0.49% to the Galpu.
The Rirratjingu applicants alleged that the NLC had disbursed the Gove Agreement mining royalties to members of the Yolngu clans in a way that was inconsistent with its obligations under the Aboriginal Land Rights (Northern Territory) Act 1976(Cth) (the ALRA). The alleged proper apportionment was set out at [31] as:
- 49.755% to the Rirratjingu;
- 49.755% to the Gumatj; and
- 0.49% to the Galpu.
The Galpu also made a cross-claim criticising the validity of the decisions about apportionment in relation to their share discussed at [38].
Main Issues
On 23 January 2015, Mansfield J announced his decision on the allocation and distribution of a particular claim, where there was some urgency that a decision be made. In the present case, his Honour addressed the following two remaining claims:
- the applicants’ trust claim:
whether the payments received by the NLC were held in trust for the traditional Aboriginal owners of the area and, if so, whether the NLC had the role of deciding how they should be allocated between the three clans (at [30]); and - the applicants’ and the Galpu’s judicial review claim:
whether decisions of the NLC under s 35(4) of the ALRA are decisions to which the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR) applies and, if so, whether they have not been made or have not been properly made (at [37]).
Mansfield J refused the applicants’ claims and the Galpu’s cross-claim.
Issue 1: The trust claim
The applicants asserted that the quarterly payments received by the NLC were held for the Rirratjingu, Gumatj and Galpu in the interim period, when the NLC has yet to disburse those funds. The applicants contended that the payments were held in a fixed and simple trust where the beneficial interest is held by each clan in proportions which reflect the particular interests in [the relevant land] (at [68]).
In that fixed trust, there was allegedly no role for the NLC to decide the appropriate proportions of each group. The applicants asserted the proper proportions were based on a consideration of geographical breakdown and other relevant factors including, at [69]:
- the significance of the land under Aboriginal tradition;
- the nature and extent of environmental impact of the use of those areas; and
- the importance of those areas.
Mansfield J rejected this argument, finding, at [83], that the proper statutory construction of sub ss 35(4) and 35(8) does not give rise to a fixed trust [and] [n]or do the terms and provisions in the Gove Agreement.
Additionally, at [102], his Honour rejected the argument that disputes about the allocation of income between Aboriginal landowners under the ALRA were to be determined by the Court as the primary decision-maker. His Honour found instead, at [109], that the decision of apportionment belonged to the NLC under s 35(4) of the ALRA.
Issue 2: The judicial review claim
The applicants’ claim was that the NLC:
- failed to make, or made with an unreasonable delay, a decision about the ‘respective entitlements’ of the three clan groups as required by s 35(4) of the ALRA; and
- engaged in conduct for the purpose of making a decision under s 35(4) which disqualifies it from making that decision.
The applicants’ main contention was that the NLC, as decision-maker, had failed to meet its obligation to obtain the relevant information, and treat the parties fairly (at [125]). The Galpu’s cross-claim adopted a very similar position (at [139]).
Mansfield J considered that the conduct the applicants referred to was not covered by review rights under the ADJR Act (at [131]). However, at [133] his Honour expressed caution in dismissing the judicial review claim given that there was ‘significant contest’ about the NLC’s conduct prior to the making of the Gove Agreement. His Honour stated that the court would instead give the parties the opportunity to consider the reasons for rejecting the claim.
Mansfield J also left the Galpu clan’s cross-claim open, stating that the proceeding would be listed for further directions.
2. Legislation
Commonwealth
Native Title Amendment (Reform) Bill 2014
4 March 2014 – introduced and read a first time. The second reading was moved and debate adjourned on the same day.
Stated purpose: the Bill amends the Native Title Act 1993 in relation to: the right to negotiate to apply to offshore areas; good faith negotiations; enabling extinguishment to be disregarded; reversal of the burden of proof; the definition of ‘traditional; and commercial rights and interests.
The Bill adopts Chief Justice French’s suggestion of a presumption of continuity which can be overturned by evidence of significant interruption. The burden of proof is shifted from the claimants to the respondents to prove disruption.
The Bill also strengthens the presumption by redefining ‘traditional’ to ensure that laws and customs can be considered traditional if they remain identifiable through time, rather than the current legal position that to be considered traditional, laws and customs must remain largely unchanged.
The Bill also provides for prior extinguishment to be disregarded by agreement. Also for the clarification on the meaning of ‘negotiating in good faith’, and provides that the party asserting good faith has the onus of proving they negotiated in good faith.
For further information please see the Explanatory Memorandum, the First reading and the Second reading.
Aboriginal and Torres Strait Islander Amendment (A Stronger Land Account) Bill 2014
23 March 2015 – the Senate Community Affairs Legislation Committee Report to be published
Stated purpose: the Bill is for an Act to amend the Aboriginal and Torres Strait Islander Act 2005 to:
- clarify the purpose of the Aboriginal and Torres Strait Islander Land Account
- provide for excess returns from the Land Account investments to be equally shared between the Account and the Indigenous Land Corporation (ILC)
- provide that the Minister may have regard to advice provided by ILC about its financial requirements
- provide for parliamentary review of any proposed changes to the ILC and the Land Account
- provide for the establishment of a Nomination Committee to make recommendations about appointments to the ILC Board
- require the ILC Board to establish a Risk and Audit management Committee
- limit the tenure and reappointments of directors and require the chair and directors to disclose all pecuniary interests, and
- require the ILC Board to determine a code of conduct.
The Bill was introduced and read for the first time on 24 June 2014.
For further information please see the Explanatory Memorandum, the First reading and the Second reading.
Aboriginal and Torres Strait Islander Peoples Recognition (Sunset Extension) Bill 2015
19 March 2015 – The Bill will receive Royal Assent
Stated purpose: Amends the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 to extend the operation of the Act by three years to 28 March 2018.
This amendment will ensure the Act of Recognition continues to operate until a referendum to recognise Aboriginal and Torres Strait Islander People in the Constitution can be held. This is consistent with the recommendations of the final report of the Review Panel established under the Act of Recognition, which was tabled in Parliament on 19 September 2014.
For further information please see the Explanatory Memorandum, the First reading as passed by both houses, and the Second reading.
Omnibus Repeal Day (Autumn 2015) Bill 2015
18 March 2015 – the Bill was introduced and read for the first time and the Second reading moved on the same day.
Stated purpose: This Bill is a whole government initiative to amend or repeal legislation across seven portfolios. These legislations include:
Aboriginal Affairs (Arrangements with States) Act 1973 (AAAS) – this Bill will repeal the whole of the act as it is redundant. The AAAS Act enables persons employed by the States to be appointed to the Australian Public Service (APS), and permitted persons in the APS to perform functions under the laws of the states relating to Indigenous affairs.
The Public Service Act 1999 now provides a similar arrangement for the transfer of State and APS employees to another State, or Agency to perform services, including services relating to Indigenous Affairs.
Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (the ATSIQDL Act) – this Bill will repeal the whole of the act. The ATSIQDL was enacted for the purpose of superseding certain provisions of the laws of Queensland that discriminated against Aborigines and Torres Strait Islanders. The Queensland laws targeted by the Act have since been repealed. As a result, the ATSIQDL Act is redundant.
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (ATSIQRCSM) – this amendment will repeal section 16 of the ATSIQRCSM Act in order to remove reference to the Aboriginal and Torres Strait Islander(Queensland and Discriminatory Laws) Act 1975 (ATSIQDL Act). This amendment is required because section 16 of the ATSIWQRCSM will no longer have effect after the ATSIQDL Act is repealed.
For further information please see the Explanatory Memorandum, the First reading and the Second reading.
Western Australia
Conservation and Land Management Amendment Bill 2015
12 March 2015- the Legislative Assembly Second Reading was passed.
Stated purpose: the purpose of this bill is to amend the Conservation and Land Management Act 1984 to Implement Government policy commitments including improving the efficiency and effectiveness of the CALM Act.
The CALM Act will among other things;
- enable joint vesting of national parks, nature reserves and conservation parks between the Conservation and Parks Commission and native title parties
- the Act will insert in Clause 5(2) the definitions for the following new terms:
Aboriginal body corporate – this definition is based on a definition in the Commonwealth‘s Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).
The definition under the CATSI Act (at 16-5) is - An Aboriginal and Torres Strait Islander Corporation is a corporation registered under the Act.‖ The reference to Torres Strait Islander corporations is not relevant to the Western Australian situation and has thus been excluded from the proposed CALM Act definition.
The Native Title Act 1993 also refers to registered native title bodies corporate, which must be registered under the CATSI Act.
For further information please see the Explanatory Memorandum.
3. Native Title Determinations
In March 2015, the NNTT website listed 1 native title determination.
| Short Name (NNTT) | Case Name | Date (NNTT) | State | Outcome | Legal Process | Type | RNTBC/ PBC< |
|---|---|---|---|---|---|---|---|
|
Yugara/ Yugarapul People and Turrbal People |
Sandy on behalf of the Yugara People v State of Queensland (No 3) |
16/03/2015 |
QLD |
Native Title does not exist |
Litigated |
Claimant |
N/A |
4. Registered Native Title Bodies Corporate & Prescribed Bodies Corporate
The Native Title Research Unit within AIATSIS maintains a RNTBC summary document which provides details about RNTBCs and PBCs in each state/territory including the RNTBC name, RNTBC type (agent or trustee) and relevant native title determination information. The statistics for RNTBCs as of 17 March 2015 can be found in the table below.
Information on RNTBCs and PBCs including training and support, news and events, research and publications and external links can be found at nativetitle.org.au. For a detailed summary of individual RNTBCs and PBCs see PBC Profiles.
Additional information about RNTBCs and PBCs can be accessed through hyperlinks to corporation information on the Office of the Registrar of Indigenous Corporations (ORIC) website; case law on the Austlii website; and native title determination information on the NNTT and ATNS websites.
Table 1: National Registered Native Title Bodies Corporate (RNTBCs) Statistics (17 March 2015)
| State/Territory | RNTBCs
|
No. of successful (& conditional
|
|---|---|---|
|
Australian Capital Territory |
0 |
0 |
|
New South Wales |
4 |
0 |
|
Northern Territory |
19 |
49 |
|
Queensland |
67 |
2 |
|
South Australia |
14 |
0 |
|
NATIONAL TOTAL |
139 |
54 |
Note some RNTBCs relate to more than one native title determination and some determinations result in more than one RNTBC. Where a RNTBC operates for more than one determination it is only counted once, as it is one organisation.
Source: http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx and Registered Determinations of Native Title and RNTBCs as at 17 March 2015.
5. Indigenous Land Use Agreements
In March 2015, 8 ILUAs were registered with the National Native Title Tribunal.
| Registration date | Name | Tribunal file no. | Type | State or Territory | Subject matter |
|---|---|---|---|---|---|
|
27/03/2015 |
DI2014/003 |
Area Agreement |
NT |
Extinguishment |
|
|
26/03/2015 |
QI2014/078 |
Area Agreement |
QLD |
Access, |
|
|
26/03/2015 |
SI2015/001 |
Body Corporate |
SA |
Access, Community, Consultation protocol, Terms of Access |
|
|
26/03/2015 |
SI2015/002 |
Body Corporate |
SA |
Access, Consultation protocol |
|
|
11/03/2015 |
QI2015/001 |
Body Corporate |
QLD |
Exploration, Mining |
|
|
11/03/2015 |
QI2014/079 |
Area Agreement |
QLD |
Access, Government, Infrastructure |
|
|
10/03/2015 |
QI2014/088 |
Body Corporate |
QLD |
Government, Access |
|
|
04/03/2015 |
QI2014/089 |
Body Corporate |
QLD |
Access |
For more information about ILUAs, see the NNTT website and the ATNS Database.
Future Acts Determinations
In March 2015, 5 Future Acts Determinations were handed down.
| Determination date |
Parties |
Tribunal file no. |
State or Territory |
Decision/ Determination |
|---|---|---|---|---|
|
25/03/2015 |
QF2014/0007 QF2014/0008 |
QLD |
Future Act – NIGF Not Satisfied – Tribunal does not have jurisdiction |
|
|
20/03/2015 |
WO2013/0121 WO2013/0326 WO2013/0469 WO2013/0689 WO2013/0690 WO2013/0691 WO2013/0692 WO2013/1134 WO2013/1136 |
WA |
Objection – Expedited Procedure Applies |
|
|
18/03/2015 |
Buurabalayji Thalanyji Aboriginal Corporation (WCD2008/003) (native title party) |
WO2014/0335 |
WA |
Objection – Dismissed |
|
13/03/2015 |
WO2014/0844 |
WA |
Objection – Dismissed |
|
|
12/03/2015 |
WO2013/0755 WO2013/1003 |
WA |
Objection – Expedited Procedure Applies AND Objection – Expedited Procedure Does Not Apply |
7. Native Title in the News
The Native Title Research Unit with AIATSIS published the Native Title in the News which contains summaries of newspaper articles and media releases relevant to the native title sector.
8. Related Publications
Publications
Aboriginal Resource and Development Services
ARDS Newsletter
The March edition of the ARDS newsletter is now available.
For further information, please visit the ARDS website
Why Warriors
Newsletter
The March edition of the Why Warriors newsletter is now available.
For further information, please visit the Why Warriors website
Wiley
Research on Indigenous Australia
Wiley, along with many of its publishing partners, has released a collection of recent papers on the theme of ‘Research on Indigenous Australia’. The papers included in the collection will be freely available until 30 September 2015.
For further information, please visit the Wiley website
Media Releases, News Broadcasts and Podcasts
Australian Human Rights Commission
Commissioner Wilson sets out rights agenda
Tim Wilson, the Human Rights Commissioner, has set out his key priorities for future work in the Rights & Responsibilities Consultation Report. Over the next four years the Commissioner will prioritise a range of areas including discussing removing legal and regulatory barriers faced by native title holders seeking economic development.
For further information, please visit the AHRC website
Carpentaria Land Council Aboriginal Corporation
60 Minutes Carbon Cowboy Documentary
The Carbon Cowboy 60 minute documentary is now available to view on the Carpentaria Land Council Aboriginal Corporation website.
For further information, please visit the CLCAC website
Central Land Council
New NT Aboriginal Housing Body to tackle Aboriginal housing crisis in the NT
A NT Aboriginal Housing Forum held in Darwin on 12-13 March, brought together 150 delegates to voice their concerns with the current housing management system in the NT, and to develop solutions and alternatives. The forum has resolved to form a new NT Aboriginal Housing Body to tackle the worsening Aboriginal housing crisis in the NT.
For further information, please visit the CLC website
Alice-designed appropriate technology helps community and tourists – CAT/CLC
Traditional owners have used their rent income from the Finke Gorge National Park to put two mobile phone hotspots along the notorious Boggy Hole access track to the park. This helps to solve their longstanding concerns about being unequipped to rescue bogged visitors.
For further information, please visit the CLC website
Abbott government resigned to ‘work for the dole’ life sentence – APO NT
Indigenous Affairs Minister Nigel Scullion’s comments that it was not "a bad thing" that many residents in remote Aboriginal communities may spend three decades working for the dole, is a disappointing thought for Northern Territory Aboriginal leaders. Central Land Council Director David Ross said "It's just soul destroying for unemployed Aboriginal people to learn that the government is relaxed and comfortable about them serving 'work for the dole' life sentences and never getting a job".
For further information, please visit the CLC website
Tributes flow for fearless advocate Kwementyaye Tilmouth
David Ross, CLC director, paid tribute to former CLC director Kwementyaye Tilmouth, who passed away recently. David said “Kwementyaye was an absolutely fearless advocate for his people…he predicted the Abbott government’s current attack against their hard won land rights.”
For further information, please visit the CLC website
Four Wheel Drive Australia
Kidson Track
The Australian National Four Wheel Drive Council, on behalf of the Nyangumarta Warrarn Aboriginal Corporation (NWAC) is now issuing permits for travel through the Nyangumarta native title lands along the newly renamed Nyangumarta Highway. The Nyangumarta Highway, formerly known as the Kidson Track, is an iconic desert track and one of the longest private roads in Australia.
For further information, please visit the ANFWDC website
Goldfields Land and Sea Council
The Forgotten People
It is with considerable disappointment and disillusionment that the Goldfields Land and Sea Council (‘GLSC’), the Native Title Representative Body of the Goldfields and Esperance Region of Western Australia advises that they were unsuccessful in their application to the Commonwealth as part of the “Indigenous Advancement Strategy”.
For further information, please visit the GLSC website
Kimberley Land Council
Barnett’s actions threaten state’s cultural, social, and economic future
The Kimberley Land Council was highly critical of Premier Barnett's comments on his intention to close down remote communities, and his determination to proceed with unfair and discriminatory changes to the Aboriginal Cultural Heritage Act.
For further information, please visit the KLC website
Minister for Indigenous Affairs: Senator the Hon Nigel Scullion
$860 million investment through Indigenous Advancement Strategy Grants Round
Minister for Indigenous Affairs, Nigel Scullion, said that under the $860 million Indigenous Advancement Strategy, 964 organisations would be funded to deliver 1297 projects to Indigenous people and communities throughout Australia.
For further information, please visit the Minister’s website
Northern Land Council
Chairman pays tribute to Malcolm Fraser
Northern Land Council Chairman, Mr Samuel Bush-Blanasi, has paid tribute to former Prime Minister Malcolm Fraser. Mr Fraser was a great friend of Aboriginal people in the Northern Territory. Mr Bush-Blanasi said “Mr Fraser championed the Northern Territory Aboriginal Land Rights Act which had been drafted under the previous Labor government”.
For further information, please visit the NLC website
New body to tackle housing crisis
A NT Aboriginal Housing Forum held in Darwin on 12-13 March, brought together 150 delegates to voice their concerns with the current housing management system in the NT, and to develop solutions and alternatives. The forum has resolved to form a new NT Aboriginal Housing Body to tackle the worsening Aboriginal housing crisis in the NT.
For further information, please visit the NLC website
Land tenure not the problem
The Northern Land Council has disputed claims by John Elferink, the Northern Territory Health Minister that land tenure issues have held up construction of remote health clinics on Aboriginal land, or on land covered by Native Title.
For further information, please visit the NLC website
Rangers get busy with cyclone clean-up
The Wanga Djakamirr and Gurruwiling ranger groups supported by the NLC are playing key support roles in the clean-up at Ramingining following Cyclone Lam’s destructive sweep through the community two weeks ago.
For further information, please visit the NLC website
Tribute to the late Kwementyaye Tilmouth
The Northern Land Council has paid tribute to Kwementyaye Tilmouth, a former Director of the Central Land Council. NLC Chairman Sam Bush-Blanasi said Kwementyaye was a great champion of Aboriginal peoples’ rights, and maintained that cause until his untimely death at the weekend.
For further information, please visit the NLC website
Yamatji Marlpa Aboriginal Corporation
Aboriginal Heritage under threat
Yamatji Marlpa Aboriginal Corporation will continue to lobby and fight for the Aboriginal Heritage Act Amendment Bill currently before Parliament, as Aboriginal people are still not being consulted on matters concerning their heritage and culture.
For further information, please visit the YMAC website
9. Training and Professional Development Opportunities
The Aurora Project
See the Aurora Project: 2015 Program Calendar for information on training and personal development for staff of native title representative bodies, native title service providers, RNTBCs and PBCs.
The Aurora Project
Mineral Law NTRB Scholarship Program
Aurora is hoping in 2015 to once again offer two scholarships to undertake a Masters of Mining Law and Policy at the University of Dundee in Scotland. The scholarships have been renamed the Mineral Law NTRB Scholarships (formerly known as the Australian Government Rio Tinto NTRB Scholarships) and will be open to lawyers who are currently working or interested in working in the NTRB system.
For further information, visit the Aurora website
James Cook University
Masterclass in Native Title for Anthropologists
James Cook University is holding an 8 day Masterclass in Native Title for Anthropologists from 22-29 June 2015, supported by the Australian Government Attorney General’s Department.
Held at JCUs campus in Cairns and facilitated by The Cairns Institute, this Masterclass could be your springboard to a meaningful career in the important world of Native Title. Generous scholarship grants, including full fee waivers, food and accommodation for the full 8 days will be available to eligible early career Anthropologists on application but places are strictly limited.
To pre-register your interest, please contact mark.franks@jcu.edu.au
Journal of the Anthropological Society of South Australia
The Journal of the Anthropological Society of South Australia is inviting expressions of interest for its December 2015 edition on the following topic: 'Norman B. Tindale and the Cultural Heritage of Indigenous Australians: Contributions and Complexities Concerning His Research Legacy’. Contributions from people having worked with Tindale’s collections are welcomed.
For further information, please contact amy.roberts@flinders.edu.au
ORIC
ORIC provides a range of training for Aboriginal and Torres Strait Islander corporations about the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act), the corporation's rule book and other aspects of good corporate governance.
For further information on training courses, visit the ORIC website
10. Events
National Native Title Conference 2015
Leadership, legacy and opportunity
In 2015 the National Native Title Conference will be co-convened by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and the Cape York Land Council (CYLC) on the traditional lands of the Kuku Yalanji people, the traditional owners of Port Douglas region.
Date: 16-18 June 2015
Location: Sheraton Mirage, Port Douglas, QLD
For further information, visit the AIATSIS website
SIEF 12TH Congress
Utopias, Realities, Heritages, Ethnographies for the 21st century
The International Society for Ethnology and Folklore is calling for papers for the 12th Congress to be held in Croatia in June 2015.
Date: 21-25 June 2015
Location: Zagreb, Croatia
For further information, visit the SIEF website
NIRAKN
Traditional Knowledges Conference
This conference will create a culturally safe space for discourse on First Nations Australians Ways of Knowing and Ways of Doing.
Date: 25-26 June 2015
Location: Brisbane Convention Centre, Queensland
For further information, visit the NIRAKN website
Eleventh Conference on Hunting and Gathering Societies
Refocusing Hunter-Gather Studies
The Eleventh Conference on Hunting and Gathering Societies will be held in Vienna, Austria. The conference will be a joint effort by four among the major anthropological institutions in town – the World Museum Vienna, the Institute for Social Anthropology of the Austrian Academy of Sciences, the Department of Social and Cultural Anthropology at the University of Vienna, and the Anthropological Society Vienna.
Date: 7-11 September 2015
Location: Vienna, Austria
For further information, visit the CHAGS11 website
Secretariat of National Aboriginal and Islander Child Care (SNAICC)
6th SNAICC National Conference
The SNAICC Conference is a place for delegates to discuss the challenges and share knowledges and experience in raising happy, healthy and confident children in communities.
Date: 15-17 September 2015
Location: Perth, Western Australia
For further information, visit the Conference website
2015 Indigenous Men’s and Indigenous Women’s Conferences
The Indigenous Men’s and Indigenous Women’s conferences provide platforms for Indigenous Men and Women to celebrate their achievements in life within their home, family, community and workplace.
Date: 28-30 September 2015
Location: Darwin, Northern Territory
For further information, visit the Indigenous Conferences website
Puliima
Puliima National Indigenous Language and Technology Forum 2015
Proposals for presenting at Puliima 2015 are now being called. Your primary audience is Aboriginal and Torres Strait Islander language workers, staff of language programs and Indigenous Linguists. In particular, the organisers are looking for presentations that create enthusiasm, share exciting new ideas, provide practical transfer of skills and empowerment, enlighten the audience and create awareness.
Puliima would like to provide as many hands-on workshops as possible to our delegates. It is in their best interest to not only hear about what is available to them, but experience it as well.
Date: 14-15 October 2015
Location William Angliss Institute Conference Centre, Melbourne
For further information, visit the Puliima website
2015 Board of Directors Conferences
The National Indigenous Board of Directors conference focuses on the challenging dynamics of being a member of the Board of Directors of a community organisation or corporation.
Date: 19-21 October 2015
Location: Mecure, Gold Coast Resort, Queensland
For further information, visit the Indigenous Conferences website
AAS 2015 Conference
Moral Horizons
The Australian Anthropological Society’s conference theme is an invitation for ethnographic research and anthropological theorisations that can contribute, critically or otherwise, to widen and multiply those moral horizons. Call for panels open on 23 March and the call for papers open on 4 May.
Date: 1-4 December 2015
Location: University of Melbourne
For further information, please contact catherine.gressier@unimelb.edu.au
University of Tasmania and Australian National University Workshop
Indigenous Peoples & Saltwater/ Freshwater Governance for a Sustainable Future
The University of Tasmania and the Australian National University are convening a workshop to discuss the environmental governance of marine and freshwater areas by and from the perspective of Indigenous peoples. Presentation proposals are due by 1 July 2015.
Date: 11-12 February 2016
Location: University of Tasmania, Hobart
For further information, please contact Professor Benjamin Richardson, B.J.Richardson@utas.edu.au, or Lauren Butterly, lauren.butterly@anu.edu.au
NAISA 2016
2016 Annual Meeting
The University of Hawai’i, the National Indigenous Research and Knowledges Network (NIRAKN), Queensland University and RMIT will host the Native American and Indigenous Studies Association Annual meeting in Honolulu, Hawai’i in May 2016.
Date: 18-21 May 2016
Location: University of Hawai’i,Honolulu
For further information, visit the NAISA website
The Native Title Research Unit produces monthly publications to keep you informed on the latest developments in native title throughout Australia. You can subscribe to NTRU publications online, follow @NTRU_AIATSIS on Twitter or ‘Like’ NTRU on Facebook.