What's New in Native Title - February 2015
1. Case Summaries
2. Legislation
3. Native Title Determinations
4. Registered Native Title Bodies Corporate & Prescribed Bodies Corporate
5. Indigenous Land Use Agreements
6. Future Acts Determinations
7. Native Title in the News
8. Related Publications
9. Training and Professional Development Opportunities
10. Events
1. Case Summaries
Foster v Northern Territory of Australia [2015] FCA 38
6 February 2015, Application for Native Title, Federal Court of Australia – Adelaide, SA (via video link to Darwin, NT)
Mansfield J
In this matter, the Court heard an application for native title by the Kamu people for an area of land included in the Malak Malak Aboriginal Land Trust situated in the vicinity of Nauiyu (Daly River).
Mansfied J dismissed the claim.
The respondents to the claim were:
- the Northern Territory of Australia;
- Biddy Yingguny;
- Malak Malak Aboriginal Land Trust;
- Albert Myoung; and
- Telstra Corporation Ltd.
History of the application
The Kamu claim was first filed in 1998, the claim has a long history which was recited by Mansfield J. The important features of this history are:
- The claim was never registered by the National Native Title Registrar under the Native Title Act 1993 (Cth) , because according to the NNTT it did not comply with ss 190C(2) or 190C(4) NTA.
- However, the claim was referred to the National Native Title Tribunal for mediation. No successful mediation took place.
- The mediation of the claim in the National Native Title Tribunal ceased on 6 May 2009, and the Court proceeded to make orders, from time to time, to secure from the applicant her proposals for progressing the claim.
- This involved attendances for directions on 20 occasions with no meaningful progress achieved.
- During the last directions hearing on 3 December 2014, the Court had adjourned the application to 17 January 2015 and directed the applicant to file and serve evidence she proposed to rely upon. At that time, the Court noted that it would consider whether it should simply dismiss the claim of its own motion, depending on the content of the evidence filed or if no evidence was filed.
- No evidence was subsequently filed.
The law
Mansfield J, at [13], considered whether the proceeding could be dismissed under:
- s 84D(4) or s 190F(6) of the Native Title Act 1993 (Cth) (NTA); or
- s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
His Honour at [14] considered that s 84D(4) would not be appropriate to dismiss the claim because no evidentiary material had been provided. Mansfield J chose to instead rely on s 190F(6), which ‘applies when an application for the determination of native title has been made, but not registered’. This was satisfied by the claim’s history and the fact that it had been many years since the claim for registration was not accepted.
Mansfield J at [15] also considered that the claim could be dismissed under s 31A(2) of the FCA Act which applied where there was “no reasonable prospect of successfully prosecuting the proceeding”.
Reasoning
Mansfield J provided the following reasons for dismissing the claim, at [17]:
- The length of the claim and prospect of succeeding. His Honour considered the history of the claim demonstrated there was no reasonable prospect of the applicant successfully prosecuting the claim.
- The interests of justice. His Honour listed 3 matters in favour of dismissing the claim in the interests of justice:
- The applicant and Kamu people could not secure any meaningful rights which are recognised at common law. The claim area is the same area that was granted to the Malak Malak Aboriginal Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act), giving them rights equivalent to freehold rights over the relevant area. These rights are more extensive than the rights sought by the applicant and the Kamu people.
- The status of “traditional Aboriginal owners” of the claim area is already shared by a wider group which includes the Kamu people. His Honour noted the “serious issue” of whether the Kamu people could be recognised as traditional owners in the face of the determination under the ALR Act. His Honour considered that the real concern of the applicant on behalf of the Kamu people appeared to be that their interests as part of the Malak Malak Aboriginal Land Trust were not adequately recognised.
- There is no real benefit to be gained by the applicant or the Kamu people if the claim succeeded. The applicant had failed to give a real and meaningful response to how the application if persecuted successfully, would provide a real benefit to the applicant, or to the claim group of which she is the representative.
At [18], Mansfield J added that the respondents were entitled to have the claim brought to an end in the interests of justice given that it was “in suspended animation indefinitely”.
In outlining his reasoning at [17], Mansfield J also noted that his dismissal of the claim did not represent the negative finding that the applicant and the Kamu people are not the persons who should be recognised as holders of native title over the claim area under the NTA.
2. Legislation
Commonwealth Aboriginal and Torres Strait Islander Peoples Recognition (Sunset Extension) Bill 2015
The Bill was introduced in the House of Representatives on 25 February 2015, and passed both Houses on 5 March 2015.
Stated purpose: This Bill amends the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 to extend the Act’s operation by three years to 28 March 2018.
Access the explanatory memorandum.
Access the first reading.
Access the second reading speeches.
The Environment Legislation Amendment Act 2015
The Bill passed both Houses on 23 February 2015 and was assented on 5 March 2015.
Stated purpose: The Environment legislation Amendment Bill 2013 amends various sections of the Environment Protection and Biodiversity Conservation Act 1999 and the Great Barrier Reef Marine Park Act 1975 to provide additional protection for turtles and dugongs under both Acts.
The Bill does not limit any absolute rights. In particular, the Bill does not discriminate on the grounds of race. It does not affect the rights of traditional peoples to harvest dugong and turtles for the purposes of domestic, non-commercial communal needs preserved by section 211 of the Native Title Act 1993 (Cth). For example, through exceptions to the offence provisions which apply to actions taken in accordance with traditional use of marine resources agreements made under the GBRMP Act.
See the text of the bill as it passed both Houses.
See the revised explanatory memoranda.
Western Australia
Aquatic Resources Management Bill 2015
This Bill was introduced in the Legislative Assembly on 24 February 2015 and received its first and second readings on that date.
Stated purpose: The purpose of this bill is to provide an Act for the ecologically sustainable development and management of the State's aquatic resources and the development of strategies and plans for the conservation of aquatic resources and the protection of aquatic ecosystems, and the development and management of aquaculture.
Clause 6, of the explanatory memoranda provides that ‘[a]n Aboriginal person is not required to hold an authorisation to take aquatic organisms if the organisms are taken for the purposes of the person or the person’s family and not for a commercial purpose.’
The bill’s explanatory memoranda clarify that:
- clause 6 applies to all Aboriginal persons whether or not they hold native title; and
- with the exception of the requirement to hold a licence when undertaking certain fishing activities, the rules of general application throughout the community such as bag limits, size limits and closed seasons apply to non-native title holders
The explanatory memorandum also provide that ‘[t]he clause is identical in effect to that of section 6 of the [Fish Resources Management Act 1994 (WA)].’
It follows Clause 131 of the bill also regulates the licensing of
- persons undertaking commercial fishing;
- Aboriginal bodies corporate undertaking commercial fishing, but a licence granted or renewed under this
provision cannot be transferred despite any other provision of this Act;
To access the explanatory memorandum.
To access the Bill.
3. Native Title Determinations
In February 2015, the NNTT Website listed no native title determinations.
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 16 February 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.
National Registered Native Title Bodies Corporate (RNTBCs) Statistics (16 February 2015)
|
State/Territory |
RNTBCs |
No. of Successful (& conditional) claimant determinations for which RNTBC to be advised |
|---|---|---|
|
Australian Capital Territory |
0 |
0 |
|
New South Wales |
4 |
0 |
|
Northern Territory |
19 |
49 |
|
Queensland |
67 |
3 |
|
South Australia |
14 |
0 |
|
Tasmania |
0 |
0 |
|
Victoria |
4 |
0 |
|
Western Australia |
31 |
3 |
|
NATIONAL TOTAL |
139 |
55 |
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 16 February 2015.
5. Indigenous Land Use Agreements
In February 2015, 4 ILUA was registered with the National Native Title Tribunal.
|
Registration date |
Name |
Tribunal file no. |
Type |
State or Territory |
Subject matter |
|---|---|---|---|---|---|
|
27/02/2015 |
NI2014/001 |
Area Agreement |
NSW |
Native Title Settlement, Consultation protocol |
|
|
25/02/2015 |
QI2014/086 |
Body Corporate |
QLD |
Extinguishment |
|
|
25/02/2015 |
QI2014/087 |
Body Corporate |
QLD |
Mining, Infrastructure |
|
|
13/02/2015 |
QI2014/073 |
Area Agreement |
QLD |
Pastoral, Access |
For more information about ILUAs, see the NNTT Website and the ATNS Database.
6. Future Acts Determinations
In February 2015, 5 Future Acts Determinations were handed down.
7. Native Title in the News
The Native Title Research Unit within AIATSIS publishes Native Title in the News which contains summaries of newspaper articles and media releases relevant to the native title sector.
8. Related Publications
CASSE
CASSE Aboriginal Australian Relations Program Newsletter
The third issue of CASSE’s Aboriginal Australian Relations Program Newsletter is now available.
For further information, visit the CASSE website.
The Australian Journal of Anthropology
Does native title merely provide an entitlement to be native? Indigenes, identities, and applied anthropological practice
This paper by David F. Martin, is directed to two immediate purposes which lie beyond anthropology as practiced within academia: to contribute to the ongoing dialogue within the discipline on applied anthropological engagement in and with the Australian native title and Indigneous development arenas; and secondly, to add to our conversations with Indigenous people themselves on what it means to be Indigenous in contemporary Australia.
For further information, visit the TAJA website.
Media Releases, News Broadcasts and Podcasts
Australian Anthropological Society
Proposed changes to Aboriginal heritage a missed opportunity to close the gap: The Australian Anthropoligical Society raises concerns about proposed reform agenda – 17 February 2015
The Australian Anthropological Society has written to WA Minister for Aboriginal Affairs raising concerns about proposed amendments to the WA Aboriginal Heritage Act (1972). If the amendments are successful, these reforms will profoundly impact the protection of Aboriginal heritage places in Western Australia.
For further information, please contact pammcgrath@bigpond.com
Friends of Australian Rock Art Inc
FARA AGM and Think Tank – 11 February 2015
The FARA AGM will be held on Saturday 21 March at 1.30pm at Robin Chapple’s office – 41 Havelock St, West Perth.
For further information, visit the FARA website.
Minister for Indigenous Affairs
Expert Group Appointed to Indigenous Land Inquiry – 20 February 2015
Minister for Indigenous Affairs, Nigel Scullion, has invited an Expert Indigenous Working Group to guide the Council of Australian Governments (COAG) investigation into Indigenous land administration and use. The Minister said the group will work with the Commonwealth, state and territory governments on the Investigation and ensure that policy directions and proposals are developed with the involvement of Indigenous stakeholders.
For further information, visit the Minister for Indigenous Affairs website.
National Press Club of Australia
Joe Morrison – It comes with the Territory: Staring Down Old Threats – Eyeing New Opportunities – 11 February 2015
The CEO of the Northern Land Council, Joe Morrison, talks about the challenges and opportunities facing indigenous communities in the Northern Territory and the absolute value of the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 in shaping that future.
For further information, visit the Press Club website
Reconciliation Australia
Continued efforts required to Close the Gap – 11 February 2015
Reconciliation Australia CEO Justin Mohamed has called on the Federal Government to increase efforts towards reducing inequalities between Aboriginal and Torres Strait Islander peoples and other Australians following the release of the Prime Minister’s Closing the Gap report.
For further information, visit the Reconciliation Australia 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.
Further information can be found on the Aurora website.
Australian National University
Key Issues in Native Title Anthropology Course
During the 2015 Autumn Session, the ANU School of Archaeology and Anthropology is offering Key Issues in Native Title Anthropology (ANTH8055), an accredited postgraduate course on native title anthropology. The course will be delivered as an intensive over five days from 13-17 April 2015 at the ANU in Canberra.
For further information please contact Nic Peterson – Nicolas.Peterson@anu.edu.au
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 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
Kimberley Foundation Australia
50,000 years of Aboriginal people in the Southern Kimberley
The Kimberley Foundation Australia’s annual public lecture will be delivered by Professor Jane Balme.
Date: 26 March 2015
Location: Manning Clarke lecture Theatre 2, Union Court, ANU
To RSVP, please visit www.trybooking.com/GUYF
Annual Conference of Swedish Anthropological Association (SANT) 2015)
DO THE RIGHT THING! Anthropology and Morality
A conference about anthropology and morality which will discuss moral and morally-based ethnography, moral practices and moral discourses and moral dimensions of anthropological practice. Deadline for panels and papers: Sunday 18 January 2015.
Date: 17-19 April 2015
Location: Lund University
For further information please email Tova Höjdestrand – tova.hojdestrand@soc.lu.se
The Anthropological Society of South Australia
2015 Norman Tindale Memorial Lecture
The Anthropological Soecety of South Australia’s 2015 Norman Tindale Memorial Lecture will be delivered by Withrop Professor Jane Lydon. The title of the lecture is ‘Real Photos’: Transforming Colonial Archives.
Date and Time: 24 April 2015, 6 – 8pm
Location: Flinders in the City, Room 1, 182 Victoria Square
To RSVP, please contact amy.roberts@flinders.edu.au
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. If you would like to submit a proposal to present at the National Native Title Conference 2015, please complete our ‘Call for Papers’ form with an abstract and biography.
Date: 16-18 June 2015
Location: Sheraton Mirage, Port Douglas, QLD
Further information can be found on 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
Further information can be found on 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
Further information canbe found on the NIRAKN website.
Eleventh Conference on Hunting and Gathering Societies
Refocusing Hunter-Gatherer 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. Call for papers close on 20 February 2015.
Date: 7-11 September 2015
Location: Vienna, Austria
Further information can be found on 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 experiencce 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
Further information can be found on the Indigenous conferences website.
Puliima
Call for Presenters at Puliima Nationa Indigenous Language & 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
Further information can be found on 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: Mercure, Gold Coast Resort, Queensland
Further information can be found on 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 email Catherine Gressier – catherine.gressier@unimelb.edu.au