Native Title Report 2008 - Chapter 2
Native Title Report 2008
Chapter 2
Changes to the native title system – one year on
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- 1 General observations about the 2007 changes
- 2 Changes to the claims resolution process
- 3 Changes to native title representative bodies
- 4 Changes to respondent funding
- 5 Changes to prescribed bodies corporate
- 6 The CATSI Act 2006
- 7 Improving native title – as simple as an attitude change?
In my Native Title Report 2007, I reported on the changes that were
made to the native title system during that year. The changes, which were made
through two pieces of legislation which amended the Native Title Act, primarily
affected:
- the claims resolution process, including the powers of the National Native
Title Tribunal (the NNTT or the Tribunal), the Federal Court of Australia, and
the relationship between the two - native title representative bodies
- prescribed bodies corporate (through the introduction of the Corporations
(Aboriginal and Torres Strait Islander) Act 2006) - respondent funding.
A range of other changes were also made
under the heading ‘technical amendments’.
In the Native Title Report 2007, I expressed concern about how these
changes will impact on the realisation of human rights of Aboriginal and Torres
Strait Islander peoples.[1] In
particular I was, and I remain, concerned that recognition and protection of
native title was not placed at the centre of the government’s
‘reform’ agenda. Instead, the changes were directed at achieving a
more efficient and effective native title system.
Indigenous people also want a native title system that functions well, but
the version of ‘efficiency’ promoted in the amendments may not
promote the realisation of Indigenous peoples’ rights and legitimate
aspirations. These rights should be at the centre of any dialogue around the
operation of the native title system.
Unfortunately, the Attorney-General has indicated that he does not plan to
review the implementation of the
changes.[2] It is disappointing that,
once again, the impact that the government’s system has on Indigenous
peoples will not be comprehensively or formally evaluated and considered.
In preparing this report, I asked a number of stakeholders for their opinions
on how the changes have impacted on the system. One year on, the changes have
not had a notable impact. A number of stakeholders consider it too early to
tell, and that it may take a while for the changes to ‘filter through the
system’.[3]
In addition, many stakeholders are still not fully aware of the breadth or
detail of the changes. In the beginning of 2008, the NNTT undertook its client
satisfaction research. This survey found that very few respondents were
‘spontaneously aware’ of the
changes.[4] Once prompted, a total of
72 percent of the survey respondents were aware of the reforms. The majority of
the respondents considered that the changes would result in varying degrees of
improved efficiency. Overall however, many ‘were unsure of the real impact
or of the specific nature of these
changes’.[5]
Nevertheless, some observations about the changes can be made. From the input
I have received, it is clear that many stakeholders consider that the changes do
not go far enough to ensure the realisation of Indigenous peoples’ rights,
and if the Native Title Act is going to have the outcomes envisaged in its
preamble, the Australian Government will need to do much more than tinker with
the edges of the system.
1 General observations about the 2007 changes
State and territory governments were generally lukewarm about the impact of
the changes to date.[6] Many
governments voiced uncertainty about whether the changes will result in any
marked improvement. One government stated that the changes ‘had no
discernible impact’ and that so far they ‘do not appear to have
resulted in improvements to the efficiency or effectiveness of the
system’.[7] Others considered it
too early to comment in detail, but reported that it was difficult to say
whether there will be any impact as the new powers of the NNTT have not yet been
exercised, and some other changes have not been
implemented.[8]
Some governments were slightly more positive that the changes will result in
improvements in the future. Victoria’s Attorney-General stated that some
of the changes with regard to the powers of the NNTT will contribute to
‘more efficient and effective mediation of
matters’.[9] Similarly, South
Australia’s Attorney-General commented that ‘to some degree the
amendments have improved the efficiency and effectiveness of the
system.’[10]
Native Title Representative Bodies’
(NTRBs)[11] views are consistent
with those of the state and territory governments. While one NTRB reported that
the amendments ‘have not to date had very much practical effect on [their]
operations’[12], they did
state that they have ‘generally been
positive’[13]. Another
expressed uncertainty about whether the legislative reforms had achieved their
purpose.[14]
The Prescribed Bodies Corporate (PBC) representatives that I spoke to found
it difficult to comment on the impact of the changes, as some of the changes
have not yet been implemented. One PBC commented that ‘there’s been
no discernible
difference’.[15] The most
common PBC comment was that funding and support is their most pressing concern,
which continues to threaten their future operation and their ability to comply
with the changes. One PBC employee from the Torres Strait commented that:
The 2007 changes...it’s very slow coming up in the Torres Strait. We
just got the [Office of the Registrar of Indigenous Corporations] people
starting to do the governance training ... but we’re still finding it
difficult to get funding from the [Torres Strait Regional Authority] for the
individual PBCs.[16]
Observations and feedback I received about specific changes are detailed in
this chapter. In addition, many stakeholders offered their views about what
other areas of the system could be improved and amended in order to better
protect the human rights of Aboriginal and Torres Strait Islanders. I have
outlined some of these suggestions at the end of this chapter.
2 Changes to the claims resolution
process
A major aspect of the 2007 changes dealt with the relationship between the
Federal Court of Australia and the NNTT, and the mediation of native title. The
changes were made in response to a review of the native title claims resolution
process which focused on the more efficient management of native title claims.
The government accepted most of the review’s recommendations and adopted
the option for institutional reform which provides the NNTT with an exclusive
mediation role, in which the Federal Court can intervene at any
time.[17]
Overall, many stakeholders were not inclined to provide positive feedback on
the changes that were made. There is a continuing lack of faith in the
NNTT’s capacity to mediate claims effectively and in the Tribunal’s
and the Court’s ability to work together for the benefit of the system. I
raised concerns about increasing the NNTT’s mediation powers in the Native Title Report 2007.
2.1 Relationship between the NNTT
and the Federal Court
(a) Administrative changes aimed at improving
communication between the NNTT and the Federal Court
The NNTT and the Federal Court have continued and expanded on initiatives
that were started in order to improve the communication between the two bodies.
The President of the NNTT stated that:
Around the country the Tribunal has been more consistent and comprehensive in
[its] regional planning... We are reporting the progress, or lack of progress,
and the reasons why to the Court. Some of the Tribunal members and employees are
appearing before the Court on behalf of the Tribunal to improve communications
between the institutions. There has been some resistance to some of these
initiatives in parts of the country, but I am convinced that such rigour is
needed and that transparency and accountability is
important...[18]
The Court has amended the Federal Court Rules to provide for the procedures
necessary to implement a number of the changes. In addition, the Federal Court
Native Title Registrar noted that:
The Court has worked closely with the Tribunal to ensure that its
relationship with the Tribunal is effective in assisting the timely resolution
of native title claims and that practices in the resolution of native title
claims are transparent.[19]
This has included regular liaison meetings between the Court and the NNTT, ad hoc discussions and briefings, joint information sessions on the
legislative reforms, and regular regional review
hearings.[20]
However, most other stakeholders did not comment on whether they have
witnessed any improvement in the relationship between the Court and the NNTT.
One NTRB did state that they have ‘seen very little evidence to the fact
that those legislative reforms have delivered [enhanced communication between
the NNTT and the
Court]’.[21]
(b) Mediation of native title proceedings
– the NNTT’s new powers and functions
As I mentioned above, the changes made in 2007 gave the NNTT exclusive
mediation powers.[22] However, the
Federal Court Native Title Registrar emphasised that:
The reforms to the native title system ... have not changed the underlying
principle that native title determination applications are proceedings in the
Court and that mediation in the [NNTT] is an adjunct to those proceedings and
directed to their prompt
resolution.[23]
In any case, it is difficult to ascertain what the impacts of these changes
will be, as it appears that many of the Tribunal’s new powers are yet to
be used:[24]
... it’s interesting to see that after the Tribunal got the powers, how
many of those powers have they in fact used? That’s going to be the
burning question... whether much transpired from it I think is the question that
needs to be asked.[25]
The Federal Court has confirmed this, indicating to me that it ‘has not
heard any matters in which it has considered the NNTT’s use of its new
mediation powers, for example directing parties to attend or produce
documents.’[26] The powers of
the Tribunal to refer issues of fact and law or the question of whether a party
should cease to be a party to the Court have not been
used.[27]
Additionally, the Court hasn’t heard any matters in which the NNTT has
reported to the Federal Court that a party or its representative did not act in
good faith during mediation.[28] However, the President of the Tribunal stated that ‘[r]eports from some
Tribunal members suggest that the good faith conduct obligation has had a
positive effect on the conduct of some
parties’.[29]
The one new power that the NNTT does appear to be using regularly is its
right to appear before the Federal Court when the Court is considering a matter
currently being mediated by the
NNTT,[30] but there is little
feedback on the impact this has had.
Nonetheless, even though the Tribunal hasn’t used many of its new
powers, it considers:
...early indications are that in some areas parties are engaging in a more
productive fashion in
mediation...[31]
There were mixed responses from stakeholders about the usefulness of the
Tribunal’s new mediation functions. One NTRB relayed to me that it is not
supportive of the NNTT having additional powers and questioned the
Tribunal’s level of mediation
expertise.[32] Similarly, South
Australia’s Attorney-General considers that ‘[i]f the NNTT,
especially, tries to use its new powers to take more control of our state-wide
negotiations, it will become a serious
hindrance.’[33] He views the
impact of the changes to the Tribunal’s mediation powers with some
scepticism:
The changes assume that close management of claims by the Federal Court and
NNTT is desirable and helpful. Under [South Australia’s] approach, and any
approach that tries to reach broader settlements that incorporate non-native
title benefits, this is questionable. The court and NNTT tend to be impatient
with long periods taken to negotiate settlements, as their statutory role is
resolving applications for determination of native
title.[34]
This view is consistent with the Federal Court’s observations that:
There have, however, been a number of instances ... where parties have
requested that matters not be referred to the NNTT for mediation as other
strategies are being
pursued...[35]
The integral role of mediation and the relationship between the two key
administrative bodies in the system in resolving native title issues was
acknowledged by the Claims Resolution Review and the consequent changes that
were made to the native title system in 2007. Nonetheless, the Tribunal’s
new powers haven’t been used to make any significant change to the system,
and one year later, very little improvement can be seen. The concerns I raised
in the Native Title Report 2007 remain, and I am not optimistic that
without further change, any significant improvement in native title claims
resolution will be forthcoming.
2.2 Registration test
amendments
In my Native Title Report 2007, I noted that new provisions had been
inserted into the Native Title Act, enabling the Federal Court to dismiss
applications that do not meet the merit conditions of the registration test
(which are set out in s 190B of the Native Title
Act).[36] I also noted other changes
to the application of the registration test, including that it must now be
applied to applications that had not previously been subject to the test, it
must be reapplied to those applications that had previously failed the test, and
it does not have to be reapplied in limited situations where a registered claim
is amended.[37]
Between 1 July 2007 and 30 June 2008, the Native Title Registrar made 104
registration decisions. A total of 23 applications were
registered[38], 81 were not
accepted:
The high failure rate reflects the large number of claims that had to be
re-tested under the [2007] amendments... The majority of the claims had
previously failed the registration test, were not on the Register of Native
Title Claims and were not amended following the commencement of the transitional
provisions. The registration test status quo was maintained for many claims (ie
they were not on the Register when the decision was made, and so the native
title claim group did not lose procedural
rights).[39]
Generally the amendments to registration testing have been seen as quite
positive. Victoria’s Attorney-General stated that ‘[i]t may be that
the new powers of the Federal Court to dismiss...applications that have not been
able to pass the registration test, may have some benefits in efficiencies of
the State’s resource
commitments.’[40]
NTRBs have also supported this change as it will allow them to concentrate
their resources better:
...in our area, a number of the early claims...were deficient...by putting
some of the claims through that process again actually did bring to light how
deficient they were and as a result are in the process of being struck out. So
even though, superficially it might sound like a hard provision, it was
necessary... it was a trigger to open up claims and show they were properly
constituted, and properly
authorised...[41]
Other NTRBs have commented that the ability to make minor changes to the
claim and not go through the registration test again is an improvement to the
system that resulted from the 2007
changes.[42]
However, very real concerns have been raised with me about the possibility
that the amendments could limit the rights of Indigenous claimants if the powers
aren’t used with caution:
[The court’s power to dismiss unregistered claims] may be helpful in
dealing with unsustainable claims and paving the way for viable new claims,
although this will depend to a large extent on how the court applies the new
provisions... Dismissals need to be dealt with on a case by case basis with
NTRBs being afforded sufficient time and due process to ensure a claim group has
exhausted all avenues to satisfy the registration test or to demonstrate other
reasons why a particular unregistered claim should not be
dismissed.[43]
Given the serious consequences that can eventuate if a claim is dismissed, I
recommend that the Attorney-General work with NTRBs to monitor the use of the
Court’s powers in order to determine whether the provisions need to be
amended to better protect the important procedural rights for claimants that
come with registration of their claim.
(a) Merit conditions of the registration
test
In the Native Title Report 2007, I outlined my concern that the
interpretation given to section 190B (the merit conditions of the registration
test) by delegates of the Native Title Registrar has varied over
time.[44] Given that the 2007
changes allow the Court to dismiss claims if they fail the registration test
under s 190B, its application by the Registrar is considerably more important -
failure to pass the registration test has even more significant implications
than before.
Last year there was an opportunity for the Federal Court to provide more
clarity on the application of s 190B. Instead, what applicants need to do to
pass the test is more ambiguous and less settled than before.
In August 2007, the Federal Court handed down its decision in Gudjala
People 2 v Native Title
Registrar[45] (the Gudjala
decision), which concerned an application for review of a decision not to accept
an application for registration.[46] The case was dismissed, but in handing down the decision Justice Dowsett set out
detailed requirements for what was necessary to pass the registration test. Many
of these requirements appear to be significantly more stringent than the
requirements were previously thought to be.
For example, Justice Dowsett held that in order to meet the requirement in
section 190B(5)(a) of the Native Title
Act[47], it is not sufficient to
show that all members of the claim group are descended from people who had an
association with the claim area at the time of European settlement, and that
some members of the claim group are presently associated with the claim area. He
considered that the application must address the history of the association
since European settlement, and must provide evidence that the claim group as a
whole, not just some of its members, are presently associated with the
area.[48]
In April 2008, the National Native Title Tribunal released a guide to
understanding the registration
test.[49] It was designed ‘to
assist in preparing a new application for a determination of native title (a
claimant application), or amending an existing
application’.[50] It appears
to follow the more stringent requirements outlined in the Gudjala decision.
However, in August 2008 the Full Federal Court allowed an appeal from the
Gudjula first instance decision, and the matter was remitted to the primary
judge.[51] One of the reasons for
allowing the appeal was that Justice Dowsett ‘applied to his consideration
of the application a more onerous standard than the [Native Title Act]
requires’.[52]
The Full Federal Court explained:
...it is only necessary for an applicant to give a general description of the
factual basis of the claim and to provide evidence in the affidavit that the
applicant believes the statements in that general description are true. Of
course the general description must be in sufficient detail to enable a genuine
assessment of the application by the Registrar under s 190A and related
sections, and be something more than assertions at a high level of generality.
But what the applicant is not required to do is to provide anything more than a
general description of the factual basis on which the application is based. In
particular, the applicant is not required to provide evidence of the type which,
if furnished in subsequent proceedings, would be required to prove all matters
needed to make out the claim. The applicant is not required to provide evidence
that proves directly or by inference the facts necessary to establish the claim.Turning to the specifics of this case, we think there are observations of the
primary judge in his reasons which suggest that his Honour approached the
material before the Registrar on the basis that it should be evaluated as if it
was evidence furnished in support of the claim. If, in truth, this was the
approach his Honour adopted, then it involved
error...[53]
In response to this decision, the NNTT is currently preparing a new guide to
understanding the registration test.
However in the meantime, there is still – if not more –
uncertainty about what is required for an application to pass the registration
test, and yet the consequences of not passing the test are now even more
significant. It is imperative that greater clarity and consistency in
registration testing is achieved as soon as possible.
3 Changes to native title representative
bodies
The 2007 changes also affected the bodies that represent Aboriginal and
Torres Strait Islander groups to enable them to gain protection and recognition
of their native title rights. The changes affected NTRBs’ recognition,
their areas, the bodies eligible to be NTRBs, their governance, reporting, and
funding.[54]
3.1 Recognition
periods
The 2007 changes introduced fixed term recognition periods for NTRBs of
between one and six years. In the Native Title Report 2007, I expressed a
number of concerns about the changes including the amount of ministerial
discretion in recognising these bodies, the additional administrative burdens
placed on them, the uncertain position that bodies with short recognition
periods are put in, and the preclusion of judicial review for the
decision.[55]
The Department of Families, Housing, Community Services and Indigenous
Affairs (FaHCSIA) considers that this change:
has already had a positive impact on service delivery by NTRBs. NTRBs are
much more conscious of the need to perform efficiently and effectively as a
result of this change, and are very much aware that their performance will be
subject to detailed assessment as they approach the end of their recognition
period.[56]
Unfortunately, FaHCSIA did not elaborate on exactly how there has been a
positive impact on service delivery, and how this might have affected the
Aboriginal and Torres Strait Islander people that the bodies are established to
represent.
The changes also allow the Minister to withdraw recognition of an NTRB if he
or she is satisfied that the body is not satisfactorily performing its functions
or if there are serious or repeated irregularities in the financial affairs of
the body.[57] FaHCSIA reported that
the Minister has not used this power since the changes were
implemented.[58]
The views of NTRBs on the impact the changes to recognition periods have had
on them differs. The Goldfields Land and Sea Council (GLSC) in Western
Australia, which received recognition for three years, said that this time frame
didn’t allow for significant forward and strategic planning in the
management of their claims.[59] Similarly, Queensland South Native Title Services considers:
The whole idea of one year funding or two year funding is ridiculous ... with
our amalgamation, we have a larger area to look at, if one of the arguments is
to attract and retain professional staff, it’s very very difficult to do
that when you are tied to a one year funding cycle, sure there can be comfort
letters to creditors and comments made to employees, but at the end of the day,
we have a very large program to roll out with the surety of only one year
funding.[60]
On the other hand, the North Queensland Land Council (NQLC), which received a
six year recognition period, said that the changes to the recognition periods
have had a ‘positive impact on the NQLC’. They consider that the
triennial funding allocation allows for better forward planning, and is an
improvement over annual funding submissions, giving them greater certainty than
the previous system.[61]
3.2 Operation areas
The 2007 changes also included amendments that allow the Minister to extend
or vary the area covered by a representative body. Significant changes to
representative body areas were made in Queensland over the year, and came into
effect on 1 July 2008.[62]
Specifically, the Gurang Land Council and the Mount Isa region of the
Carpentaria Land Council have amalgamated with the Queensland South Native Title
Services. The Central Queensland Land Council has amalgamated with the NQLC.
These considerable changes have consumed many of the Queensland
representative bodies’ resources and capacity throughout the year. It has
diverted the bodies’ efforts away from progressing native title claims,
and undermined their ability to represent their Indigenous constituents while
they deal with significant change in an under resourced environment.
The NQLC outlined the process undertaken in its amalgamation with Central
Queensland Land Council. In the process, a number of problems were encountered.
NQLC considers that there was a:
...lack of a coherent forward strategy by FaHCSIA in their rolling out of the
Minister’s decisions in this regard. They have been reactive about
responding to challenges that have occurred during the realignment of boundary
process rather than anticipating potential blockages and having strategies in
place to deal with them.[63]
NQLC informs me that FaHCSIA:
...declared to all that there would be ‘business as usual’ at
land councils affected by the boundary changes in Queensland. This is clearly
nonsense as both organisations normal activities were interrupted leading up to
the realignment on the 1st July
2008.[64]
Queensland South Native Title Services, which is the body that now represents
an area previously covered by three NTRBs, relayed similar concerns about how
the amalgamations were undertaken and the impact that it will have on
claims:
...it is a very large area with entrenched issues, different issues, large
land mass, lots of underlying interests, lots of overlaps, to think that within
a very short time frame you could actually effectively amalgamate or expand the
Queensland South boundaries and just flick the switch on the 1st July
and everything would be hunky dorey is an exercise in naivety... there was
compelling logic behind the amalgamation but it was the planning and
implementation that was flawed. FaHCSIA knew what their program was, but they
didn’t engage change agents on the ground... it was very difficult to do
with limited money and resources. Having regard to the enormity of the task and
implications for a significant number of traditional owners, the actual change
process, the timing, and the resources weren’t really thought through as
well as they should have been.[65]
FaHCSIA provided some additional funding for one financial year to assist
with the transition, but there has been no general increase in the annual
budget. Yet both organisations had to perform significant additional activities,
which have impacted directly on the Indigenous people they represent. For
example, the bodies have to get across all the claims, from regions they
previously didn’t cover, quickly enough to address court orders and ensure
the claims aren’t struck out by the Court for a failure to comply with the
orders.
In addition, the bodies have had to undertake consultations with members of
all the claims about future arrangements requiring extensive, and expensive,
community consultations and meetings, which the additional funding was hardly
sufficient to cover.[66]
Consequently, the amalgamations have consumed a significant proportion of the
already scant resources available to representative bodies and that is
impacting, and will continue to impact, upon the native title system across
Queensland. In the end, the people who will bear the cost of the amalgamations
are native title claimants, whose claims have potentially been jeopardised or
put on hold, once again delaying recognition of their rights in the land.
I recommend the Attorney-General closely monitor the impact of the
amalgamations on the operation of the relevant NTRBs, and ensure that FaHCSIA is
providing the direction, assistance and resources they need to transition to
larger bodies.
Map 1: Representative Aboriginal/Torres Strait Islander Body Areas
1 July 2008
4 Changes to respondent funding
In 2007, changes were made to the respondent funding scheme. Under this
scheme, the Attorney-General can grant legal or financial assistance to certain
non-claimant parties to enable them to participate in native title proceedings.
The number of parties to any legal proceeding will necessarily increase the
complexity, length, and expense of proceedings for all parties involved. However
in native title proceedings, various parties who do not have a legal interest at
risk in the proceeding can have standing to participate. The numbers of this
type of respondent can reach over one hundred for one claim, seriously hampering
its progress. Sometimes, the parties’ participation is funded by the
Attorney-General under the respondent funding scheme.
The 2007 changes were welcome, and have consequently been well received by
various stakeholders. Both NTRBs and some governments have indicated that one of
the major benefits of the 2007 changes were those made to the respondent funding
scheme: [67]
...[T]he provisions there were to allow a bit more rigour, and that’s a
good thing. When you have a plethora of respondent parties, if you’re
going to get a consent determination, then you have to get the consent of
everyone. If there’s a proliferation of parties because of a relaxed
Federal Court Rule allowing anyone with an interest to become a respondent, and
then there’s eligibility to respondent funding, it behoves an organisation
not to actually mediate a negotiated outcome, it almost perpetuates itself to
ensure there is no mediated outcome. So I think that was a good thing, but
again, has there been an overall reduction in respondent funding, has it reduced
the number of parties, has it made it a disincentive to be a party, I
don’t know.[68]
The expenditure on the scheme has indeed been reduced, implying that the
Attorney-General is considering the impact of these parties on native title
claimants and proceedings. Expenditure for the respondent funding scheme fell
from $5.01 million in 2006-07 to $4.25 million in 2007-08. This reduction in
spending has been attributed to the 2007 changes which encourage agreement
making and ‘considerably limit assistance available to non-government
respondents for court
proceedings’.[69]
However, many of the concerns I raised in the Native Title Report 2007 have not been addressed or responded to by the Attorney-General. In summary, I
am concerned that there is no information about how the scheme has been
evaluated and no specific effort by the Attorney-General to determine how the
funded parties impact on the proceedings or the native title rights and
interests of Indigenous peoples. The Attorney-General has indicated to me that
his assessment of the conduct of parties who are funded under this scheme,
‘to a large degree’ follows the lead of the Federal Court, NNTT and
other parties.[70] In other words,
the impact of these parties on the proceedings is not known. Perpetuating my
concern is the fact that the details of which parties are being funded is
confidential. Consequently, no one is able to hold the government accountable
for how these public funds are being spent.
I encourage the Attorney-General to consider the recommendations I made in
chapter 4 of the Native Title Report 2007 to further improve the
respondent funding scheme.
5 Changes to prescribed bodies
corporate
Prescribed Bodies Corporate (PBCs) are essential to native title. They are
the bodies that are established to hold native title on trust or as an agent for
the native title holders. Their primary role is to protect and manage determined
native title in accordance with the native title holders’ wishes and
provide a legal entity through which the native title holders can conduct
business with others who are interested in accessing their land or waters. They
are integral to the system and to achieving the broader outcomes from native
title that communities and governments want to see:
PBCs are critical organisations that are going to have to deliver during
outcomes from the native title process for native title holders and the wider
Australian community, and the Government needs to fully understand and properly
support this.[71]
Some of the changes made to the native title system in 2007 were intended to
address a number of the problems PBCs face in order to operate. However, the
changes are not sufficient to support the effective operation of PBCs. It is
positive that the government has acknowledged the significance of these bodies
and has committed to funding them appropriately on many
occasions.[72] I look forward to
seeing how PBCs will be funded as an outcome from the government’s review
of funding of the native title system that will feed into the next federal
Budget.
However, in the meantime, the role of PBCs is in jeopardy because of the poor
level of support available for them and the role that they are expected to play
in the community. Pila Nguru, a PBC based in the Tjuntjuntjara Community in
Western Australia, highlights the difficult role that PBCs play:
Walking the line between upholding traditional responsibilities and making
moves to secure a future for remote community can be tricky...I cannot see it is
in anybody’s interests to have PBCs collapse but I cannot equally see how
they can continue without at least a skeletal funding
base.[73]
5.1 Financial support
As I have indicated, one of the most pressing concerns of PBCs is support for
their operation; both financial and non-financial. The necessity of federal
support for PBCs is strongly endorsed by state and territory
governments.[74]
The 2007 changes allowed for some additional mechanisms through which PBCs
could gain support from the federal government, either directly through FaHCSIA
or through NTRBs.[75] However,
FaHCSIA have stated that:
In terms of the 2007 policy change to permit the provision of funding support
for PBCs beyond their initial establishment phase, we have been limited to the
extent to which we have been able to assist PBCs by the level of resources
available to the program. The high level of demand for resources by NTRBs has
made it difficult to secure funds for PBC support within existing
funding...[76]
At the end of June 2008, there were 57 Registered PBCs (known as Registered
Native Title Bodies Corporate) on the National Native Title Register. A further
12 determinations of native title are awaiting a determination of a Prescribed
Body Corporate to become the Registered Native Title Body
Corporate.[77] Of these, only ten
received funding from the federal government, to a cumulative total of $380,000
which was sourced from funds allocated to
NTRBs.[78]
Although the establishment of a PBC is a requirement of the Native Title Act
once a determination is made, the federal government has stated that it should
‘not necessarily be considered a first stop for funding. Funding should
also be sought as appropriate from state and territory governments and agencies,
industry and other relevant Australian Government departments and
agencies.’[79]
With limited government money available, funding is becoming an increasingly
urgent concern. In addition, as the native title system progresses, the number
of PBCs in the country is rising, and the focus of native title policy is to
some extent moving from interpretation of the Native Title Act to implementation
of the rights granted. However, implementation and realisation of native title
rights are stifled, and can even be extinguished and lost when the PBC cannot
operate effectively.
So where can PBCs obtain funding? Because of the nature of native title
rights and interests, PBCs can very rarely use native title to make a profit
which would support their sustainability. However, where a claim group has
managed to negotiate monetary or other benefits through an Indigenous Land Use
Agreement or broader settlement, this may include provision for funding the PBC.
But this funding typically comes from private interests, which is not consistent
across Australia, or is an optional extra from state or territory
governments.[80] As a result, there
is nothing at all in the system which guarantees PBCs’ viability, and
therefore there is nothing in the system which guarantees that hard won
recognition of native title rights will be effective into the future.
I recommend that the Attorney-General significantly increase financial
support for PBCs as a separate funding base from that allocated for NTRBs. At a
minimum, PBCs should be allocated a specific funding grant for the first year of
the PBC’s operation, to ensure it is established in accordance with the
significant regulations that apply to them.
A related issue that has been raised with me is that some native title
claimants are forming corporations through which they utilise the procedural
rights afforded under the Native Title Act, and carry out other dealings with
the land before a native title determination has been made. As these bodies are
not yet PBCs under the law (as there is no determination of native title), there
is no funding available through the Commonwealth for these corporations at all.
Yet they are also essential to the system’s operation and the protection
of native title rights and interests prior to a determination. A determination
itself will take many years if it is even sought. However, if a broader
settlement is achieved (and the focus of significant stakeholders is shifting in
this direction), a native title determination may never be made, and these
corporations will have immense difficulty surviving and protecting their rights.
Currently, many of these organisations are operating via the goodwill and pooled
resources of a claim group, while the individuals who run it are stretched to
their limit, simultaneously continuing with other paid employment and fulfilling
their family and community commitments.
Additionally, both the Attorney-General and the Minister for Indigenous
Affairs have emphasised the need for native title agreements to result in
broader outcomes for Indigenous communities. It is PBCs that will be the
organisations that must implement these agreements and ensure those outcomes are
attained. They are the vehicle that will be used to achieve a range of social,
cultural, political and economic
aspirations.[81]
When the government considers the level of support it will provide for PBCs,
it should consider the broader roles that PBCs play in achieving and protecting
Indigenous peoples’ rights to their land, and attaining broader benefits
for communities.
5.2 Fee for service
One of the 2007 changes did provide a potential funding source for PBCs by
allowing them to charge a third party to a negotiation for costs and
disbursements reasonably incurred in performing statutory functions. However,
the provisions only commenced on 1 July 2008, and the PBCs that I received
feedback from did not comment on whether they intend on using the provisions.
FaHCSIA is also uncertain about whether the new power has been utilised or how
much impact it will have:
The capacity to charge fees for costs incurred in undertaking negotiation of
agreements etc ... is likely to have had some impact but we do not have
sufficient information on the extent to which it has been applied in
practice.[82]
I raised concerns about how this scheme will operate in the Native Title
Report 2007[83], and I encourage
the Attorney-General to monitor the new powers to identify how and to what
extent they assist or hinder PBCs to obtain funds.
5.3 PBC Regulations
A number of the 2007 changes affecting PBCs have not been implemented. Many
of the changes that were announced require the Native Title (Prescribed
Bodies Corporate) Regulations 1999 (the PBC regulations) to be amended
before they have any effect. These amendments relate to a host of changes to
PBCs that were decided on, including PBC consultation requirements, standing
authorisations, default PBCs, replacement PBCs and a raft of other
issues.[84]
In the Native Title Report 2007, I raised a number of issues that
should be considered when drafting these amendments. I recommend the
Attorney-General and the Minister for Families, Housing, Community Services and
Indigenous Affairs consider these while they draft the regulations, and consult
widely with PBCs, NTRBs and Indigenous people once a draft is available.
6 The CATSI Act 2006
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act) came into effect on 1 July 2007. It provides for the
incorporation and regulation of Aboriginal and Torres Strait Islander
Corporations, and significantly changes the law that previously governed
Indigenous corporations. The CATSI Act affects the native title system because
PBCs must be incorporated under
it.[85] Once a PBC is incorporated
under this Act, it is registered on the National Native Title Registrar as a
Registered Native Title Body Corporate
(RNTBC[86]).
In the Native Title Report 2007, I summarised the main changes to
Indigenous corporations through the enactment of the CATSI Act, and my concerns
about the impact it will have on the human rights of Indigenous
Australians.[87] I raised the
concern that PBCs will not receive the support and resources they need in order
to comply with the CATSI Act and that, as a result, they risk losing control of
their native title rights and interests, or jeopardising these interests in
other ways.
Because corporations have up until 30 June 2009 to transition their
constitutions to be in line with the new Act, the CATSI Act has not yet been
fully implemented.
Consequently, the corporate regulator, the Office of the Registrar of
Indigenous Corporations (ORIC), has not assessed the impact that the CATSI Act
has had on Indigenous corporations. The Registrar has informed me that
‘[i]f an assessment of the impact of the CATSI Act is to be undertaken, it
will be undertaken after 30 June 2009. What any assessment would include has not
yet been decided’.[88]
The Registrar also noted that:
Feedback on the CATSI Act has been far-reaching and both positive and
negative. There has been no formal assessment of feedback on the CATSI Act to
date and therefore I cannot comment on RNTBCs’ views in this
context.[89]
In the meantime, ORIC has undertaken a number of initiatives such as
producing guidelines, pre-populating some of the reports that PBCs need to
submit to ORIC in order to comply with the reporting requirements, and providing
training.[90]
ORIC has reported that the number of registered PBCs that are not complying
with the reporting and other regulatory requirements has fallen from 49 percent
in October 2007, to 14.8 percent in October 2008. The Registrar considers that
this is probably due to his office’s regular contact with NTRBs, and the
NTRBs’ and ORIC’s support for registered PBCs (including
training).[91]
Encouragingly, the Registrar has also established a planning and research
team which will research non-compliance and why Indigenous corporations go into
administration. I look forward to reading the results and anticipate that they
will be able to be utilised effectively by the Registrar and the government to
benefit Indigenous corporations and assist them to operate independently and
capably.
However, a number of factors remain a concern.
I have received feedback that because the CATSI Act appears to have been
drafted largely with PBCs considered as just another form of corporation, many
of the regulations are not consistent with or complementary to the native title
system. This creates tension and confusion among PBC members:
Certainly I’ve noticed a big change in the compliance aspects of
registration... the CATSI rule book is very complex particularly in the context
of native title... you have to try and combine the two, and then you have to
– other than explain it to people who speak English as a second language
– you then have to have it all amended in accordance with your existing
constitution and so on, it’s actually very resource intense. And
there’s no funding specifically earmarked for this as far as I can tell...
I think administratively the transition under the CATSI Act has really increased
the burden for people that don’t have independent assistance. I think
those groups are going to really struggle to deal with it all because it really
is very complex.The whole problem with ORIC, is that the whole notion of PBCs and native
title entities has been secondary, and almost an afterthought. The whole notion
of contractual membership where you have to get each member to sign something
requesting to become a member, and then having the Board of Directors say yes or
no, seems to be completely out of kilter with the notion of native title groups;
you’re either a member or you’re not in terms of the rules that
apply under traditional law and custom. That’s something that’s been
completely ignored or
overlooked.[92]
I am also concerned that while the law is still being implemented and the
initial impacts are uncertain and mixed, there is no reliable data on why
registered PBCs have been non-compliant with the regulatory requirements to
date, whilst at the same time there is widespread recognition that these bodies
are severely under-funded. Because of this, I recommend that the Registrar and
FaHCSIA together undertake a review of the impact that the CATSI Act has on
Indigenous corporations once implementation of the Act is complete. In
particular, the review should examine the impact of the CATSI Act on PBCs’
ability to protect and utilise their native title rights and interests.
Finally, in order to be able to comply with the regulatory requirements, PBCs
need to have access to funding, resources and skills. The funding available to
them from the government however is, at least in part, dependent on their
capacity to govern themselves. Yet this inter-dependence between funding and
governance has not been sufficiently recognised by government. The Registrar of
Indigenous Corporations informed me that ORIC ‘does not have any role or
influence in determining FaHCSIA funding for
RNTBCs’[93]. This is yet
another example of government departments acting in silos, and I recommend that
FaHCSIA work cooperatively with ORIC to ensure the funding of registered PBCs is
consistent with the aim of building the capacity of these bodies to govern
themselves and operate independently, securing the future and utilising their
native title rights and interests.
7 Improving native title – as simple
as an attitude change?
It is evident that the 2007 changes have not yet had any significant impact
on the native title system. Perhaps it is too early to tell, but a broad range
of stakeholders support my concern that the changes will not deliver the
substantial changes that the system needs. It is doubtful whether the changes
will be of any perceptible benefit to the Traditional Owners of the land, and it
is unlikely the net result will be an increased protection of the human rights
of Aboriginal and Torres Strait Islander peoples.
It is disappointing that the government spent a number of years, multiple
reviews and countless resources to simply tinker with a system that is in dire
need of reform. I hope that this trend does not continue, and that the
government now concentrates on actions that will fulfil the commitments it has
made over recent months to improve the system.
As I outlined in chapter 1 of this Report, while the government has
recognised some of the fundamental flaws with the outcomes of native title and
has committed to finding new solutions, the government’s main focus will
be altering the attitude of parties involved in native title:
I share the concerns expressed in the [Native Title Report 2007] about
the outcomes being obtained through the native title system. The heart of the
Native Title Act 1993 is the principle that the recognition of Indigenous
people’s ongoing connection with their land should occur through
negotiation and mediation, not litigation, wherever possible. I have actively
encouraged all parties to take a less technical approach to native title, and to
use the opportunities presented by native title claims to facilitate the
reconciliation process and to negotiate better and broader outcomes for
Indigenous people....
I believe that the key to achieving better outcomes lies in all parties
changing their behaviour and engaging more flexibly, to achieve and build upon
recognition of the ongoing relationship of Indigenous people to the
land.[94]
Although there is benefit in this, I am concerned that this will not be
sufficient, and that this policy needs to be complemented by changes to the
underlying system if the outcomes the government would like to see are to be
attained.
Firstly, ‘attitudes’ to policy are discretionary and dependent on
the elected government for each jurisdiction. It does not create certainty,
predictability or equity in native title outcomes across Australia. If a
government changes, there is no guarantee that the ‘flexible’
approach will be maintained. The markedly different outcome from a simple change
in approach is seen in chapter 3 of this Report, where the Northern Territory
government changed during a compulsory acquisition case.
Improvements to the system need to be enshrined in legislation to ensure that
the rights of Indigenous peoples are always protected, and not swept aside when
it’s convenient.
Secondly, while supporting the flexible and less technical approach to native
title, the Northern Territory (NT) Government has already warned:
[T]he Australian Government’s proposal for broader settlements and
regional initiatives using the native title process may be constrained by the
legal requirements of the Native Title Act 1993 (Cth) and court
processes.[95]
That is, stakeholders consider that there are considerable constraints within
the Native Title Act that may prevent them from making significant progress in
improving the native title outcomes that are
agreed.[96]
Thirdly, I am concerned about the breadth of change that can be achieved when
nearly all of the state and territory governments have indicated to me that they
consider that they have already been acting in a flexible manner for
years.[97] Consequently, they all
naturally support the federal Attorney-General’s approach, but this begs
the question; how much more flexible will these governments be? For example
South Australia’s Attorney-General
indicated:[98]
South Australia supports the Commonwealth’s new emphasis on achieving
broader settlements through less technical and more flexible approaches and has
been implementing that approach for nine years.
Because of these weaknesses, I recommend the government consider further
legislative and policy changes that have been discussed in this, and previous,
native title reports. In addition, the government could consider tying the
announced funding to state and territory governments for native title
compensation payments, to state and territory behaviour in native title
agreement making and the settlement of broader
agreements.[99]
7.1 Further suggestions for
improvement
Throughout this Report, and previous native title reports, I have made a
number of recommendations for improvements that can be made to the native title
system. In addition to these, government agencies, NTRBs and PBCs have offered
me their own suggestions about how the system could be improved. Many of these
are consistent with recommendations in native title reports. I recommend that
the Attorney-General consider these suggestions.
(a) Federal Court’s power over native
title proceedings
Both Victoria’s and South Australia’s Attorneys-General have
indicated a strong preference for the option of ‘long-term
adjournments’ of native title claims at the request of all parties:
One area of reform Victoria believes is worthy of further exploration is the
potential for the State and native title parties to approach the Court and
obtain a ‘suspension’ or ‘long-term adjournment’ of a
claim for a period of time to enable them to negotiate ancillary outcomes ...
The problem sometimes arises where these broader outcomes are not being realised
because of pressure from the Court to resolve the native title question more
quickly. This can lead to missed opportunities for traditional owners, or
ancillary agreements that are difficult to implement because the policy
development behind them was rushed. Preparing for regular court appearances can
divert resources from making progress on negotiating broader
agreements.[100]
Similarly, South Australia’s Attorney-General commented:
...there must be scope to exclude the Federal Court and the NNTT from
involvement where all parties agree that they want to proceed themselves...the
threat of having a trial listed by the Court can also distract parties and
divert resources from negotiations. This is especially so if the parties are
trying to negotiate settlements that include benefits beyond a determination of
native title. Those negotiations necessarily take more time while the Court is,
generally, only interested in native-title
results.[101]
I see the merit in this approach, and support such a proposal if both parties
consent to an adjournment.
(b) Funding and support for Native Title
Representative Bodies and Prescribed Bodies Corporate
Almost every organisation in the native title system has expressed serious
concern about the impact that under-resourcing of NTRBs has on native title
claims. Each state and territory government expressed this concern to me.
Victoria’s Attorney-General identified the need for ‘more robust
and secure funding for NTRBs, including native title service
providers...organisational capacity, expertise and good governance of these
bodies... is critical to the functioning of the native title system as a
whole’. He also stated that the Victorian Government would:
welcome a greater focus on enhancing capacity with respect to the statutory
dispute resolution functions of these bodies, in relation to disputes between
their constituents.[102]
This is a significant problem for Indigenous peoples. Approximately half of
the complaints that FaHCSIA receives about the native title system are about
authorisation or intra-Indigenous
disputes.[103]
Significant work has already been done on approaches to Indigenous
decision-making and dispute management by the Indigenous Facilitation and
Mediation Project (IFaMP).[104] The project, which was undertaken by the Australian Institute of Aboriginal and
Torres Strait Islander Studies (AIATSIS), made a number of findings and
recommendations on agreement making through non-adversarial approaches, some of
which were specific recommendations to improve the native title system. The
recommendations included funding and establishing an accredited national network
of Indigenous process experts including mediators, facilitators and negotiators;
the incorporation of Indigenous expertise into native title mediation processes
and support for the development of Indigenous expertise and the development of
specific native title national standards and/ or a code of ethical conduct which
addresses the roles and responsibilities of all
parties.[105] I encourage the
Attorney-General to consider the recommendations made in the final report of the
Project.
Victoria’s Attorney-General also suggested that there should be greater
support for PBCs to carry out the substantial responsibilities that the Federal
legislation imposes on them. He has suggested that a program similar to the
Aurora program be funded for building the capacity of
PBCs.[106] AIATSIS already has a
project underway which is aimed at supporting PBCs to hold and manage their
country ‘through research and participatory planning to support
capacity-building in effective decision making and conflict resolution
processes, frameworks, negotiation skills, agreement making, strategic planning
and governance’[107]. This
project could be further supported by government.
Similarly NSW’s Minister for Lands considers that the Commonwealth
Government:
...should examine further Commonwealth measures of support (both financial
and non-financial) for native title representative bodies and prescribed bodies
corporate.[108]
I have discussed the issue of funding in chapter 1 of this Report and earlier
in this chapter.
(c) Extinguishment of native title
The Queensland Department of Natural Resources and Water would like the
Commonwealth Attorney-General to consider the necessity of the permanency of
extinguishment of native title, and whether the principle of non-extinguishment
can be extended:
The benefits of extending the operation of section 47 suite of the NTA which
sees the disregarding of the extinguishment of native title occurring in certain
circumstances.[109]
Justice Wilcox also thinks that the Attorney-General should re-consider the
permanency of extinguishment:
One change that could be made, and it’s just a great shame that
it’s necessary. The current doctrine is that if there’s ever been
[extinguishment] by the Crown, whether a grant of freehold or a grant of lease,
that terminates native title, even if the land is subsequently reverted to the
Crown...Now why do we have to stick to that rule?...I think that’s an area
that can usefully be looked
at.[110]
I agree that this approach would be beneficial, and would increase the
possible recognition of native title, going some way to mitigating the impact of
colonisation on Indigenous peoples’ rights and interests. It would also be
consistent with the Native Title Act’s preamble that states: ‘where
appropriate, the native title should not be extinguished but revive after a
validated act ceases to have
effect.’[111]
(d) Recognition of traditional ownership
outside the native title system
The Native Title Act was intended to be just one of three complementary
approaches to recognise, and provide some reparation for, the dispossession of
Indigenous peoples’ lands and waters on colonisation. The two other limbs
were to be a social justice package and a land fund that would ensure that those
Indigenous peoples who could not access native title would still be able to
attain some form of justice for their lands being taken away.
It was in this context that the Native Title Act was drafted and passed by
Parliament. However, the other two limbs did not eventuate in the form intended,
and this abyss is one of the underlying reasons why the native title system is
under the strain it is under today.
The social justice package never came to fruition. The new Rudd
Government’s Platform states that it will ‘recognis[e] that a
commitment was made to implement a package of social justice measures in
response to the High Court’s Mabo decision, and will honour this
commitment’.[112] In an
appendix to this Report I have summarised the main recommendations and proposals
for a social justice package that were made at the time by the Aboriginal and
Torres Strait Islander Commission and the former Aboriginal and Torres Strait
Islander Social Justice
Commissioner.[113]
The land fund commitment was realised through the Indigenous Land Corporation
(ILC) which continues to operate today, but does not always provide an effective
and accessible alternative form of land justice when native title is not
available. Consequently, it could not be said to fulfil Australia’s
commitments to land rights, nor fulfil the function it was intended to as was
set out in the preamble to the Native Title Act, which states:
It is also important to recognise that many Aboriginal peoples and Torres
Strait Islanders, because they have been dispossessed of their traditional
lands, will be unable to assert native title rights and interests and that a
special fund needs to be established to assist them to acquire land.
(e) The Indigenous Land Corporation
The Native Title Act as passed in 1993 established a National Aboriginal and
Torres Strait Islander Land Fund. However, a number of changes made since 1993
have meant that this fund, which is referred to now as the Land Account, is
administered by the Indigenous Land Corporation
(ILC).[114]
The Act which now provides the functions of the ILC is the Aboriginal and
Torres Strait Islander Act 2005 (Cth). The preamble to this Act also
acknowledges the need for land justice for Australia’s Indigenous peoples,
but does not draw any connection to native title and the complementary role the
Land Account was supposed to play:
And whereas they have been progressively dispossessed of their lands and this
dispossession occurred largely without compensation, and successive governments
have failed to reach a lasting and equitable agreement with Aboriginal persons
and Torres Strait Islanders concerning the use of their lands...
It is this Act which dictates the ILC’s functions, which primarily
relate to land acquisition and land management. The Act only mentions native
title twice, but never draws on the integral relationship between the Land
Account, the functions of the ILC, and native title.
Recently, I have received an increasing number of inquiries and concerns
about the ILC and the role it is playing in the realisation of land rights and
justice for Indigenous people. Many Aboriginal people and Torres Strait
Islanders are confused about its role, its activities and the outcomes it is
achieving. Indigenous people have indicated to me that they are concerned that
the ILC does not focus enough on reparation for dispossession, but instead is
concerned with economic gain.[115]
Perhaps the link between dispossession and the role of the fund in the
achievement of land justice and the native title system should be considered
further, and the link made more explicit and direct. The Queensland Department
of Natural Resources and Water would support such an approach. It suggests that
the Attorney-General should consider ‘how to increase the role of the
Indigenous Land Fund in the resolution of native title
claims’.[116] I would
support such a review and a consideration by government, in consultation with
the community, of how the ILC’s functions could better complement the
native title system and contribute to the outcomes government would like to see.
In the meantime, the two other social justice limbs referred to in the
preamble to the Native Title Act do not operate in the way originally intended.
Because of these constraints, there has been unforeseen pressure on the native
title system to deliver even though native title was never intended to be the
panacea for dispossession in Australia:
What we need to do is return to the preamble of the Act Where the NTA was
only intended to be part of a broader package to assist in the realisation of
Indigenous land aspirations. When you unpack the box and leave on the NTA, we
all go scurrying towards the very thing that [Justice] Brennan intimated way
back in 1992 in the Mabo judgement that native title was going to be very
difficult to prove. To me, I think the preamble actually spells it out quite
nicely. If you’re going to be looking at these things you’ve got to
look at it comprehensively and we shouldn’t be taking a slavish technical
approach to the extent where for instance we don’t even get a seat at the
negotiation table unless we overcome the demands of full lown connection. We
should only be looking at right people, right country, and some mechanism to
determine that.[117]
Recognising that native title is not producing land justice for the majority
of Aboriginal peoples and Torres Strait Islanders, there is a discussion
gathering momentum about how traditional ownership can be recognised short of a
native title determination. After hearing a number of native title cases as a
judge in the Federal Court, Justice Wilcox considers this:
What [Traditional Owners] are wanting, what they’re crying out for, is
for the people who represent authority figures to them, and it’s the
government or the courts speaking on behalf of government, I suppose
that’s the way they would see it, to say this is who you are and we
recognise who you are. Now for that reason, I would like to see added to the
Native Title Act, some provision that allows the court, even if not granting
native title, or recognising native title, to determine the particular group are
the people whose ancestors were there at the time of settlement and that
they’ve maintained continuity as a people even if they cant prove
continuity from generation to generation of observing the law... I think until
we recognise that the system that was seen in Mabo, which after all was a remote
island, hardly impacted by white settlement, simply doesn’t work for [most
Indigenous people]. And it’s going to be a source of great disappointment,
even a feeling that they’ve been conned...Here’s the government of
the country and Parliament passing statutes which seem to promise so much and
yet when the claim is brought they just can’t get there and then they get
nothing, not even
recognition...[118]
Justice Wilcox has linked the difficulty of the legal hurdles required to be
jumped for native title, with the gridlock the system is in today, and sees an
alternative form of recognition as one way of dealing with this problem:
What [Traditional Owners] are wanting I think more than anything is
recognition and we could change that quite easily by just adding a new section
to the Act... it wouldn’t be as much satisfaction as actually winning a
native title claim but it would go a long way to at least make an appeal that
they are recognised as who they are.I just find it really difficult to live with the idea that people like the
Yorta Yorta and Larrakia and Noongar people just get kicked out with just
nothing, and there’ll be more cases like that. One of the problems is, one
of the reasons why the native title list is in such a static condition in the
court is I believe that many of the claimants have been advised that the case
will not succeed and go nowhere but they can’t bring themselves, or
persuade those whom they represent perhaps, to just say ok we give up, we
abandon it, because they see that as a being a concession that they’re not
who they are and so we’ve got 500 cases waiting in the list and
there’s hardly any movement in the list.I had a lot to do with the native title list and I just about went crazy
trying to get cases up to the barrier and you couldn’t and for a whole
host of reasons, it wasn’t justice but I think many of these cases they
ought to be. Normally with any other litigation say, well this has been here for
a long time and I’m going to set a date and it’s going to go on that
day. But you know that if they did that they’d probably just discontinue
the claim ... or you’d come to the courts and you’d force them onto
the situation where the whole thing is a mess... they’ve probably been
told, look don’t bring it on, you’re not going to get anywhere. And
yet they can’t say this is hopeless. They’re wanting the court to
say you are who you are.[119]
Similarly, the Queensland government would like the Attorney-General to
consider:
The establishment of a ‘traditional owner’ status under the NTA
which could be by way of an extension of the claim registration process with the
NNTT responsible for the recognition of the status. The status could carry with
it a suite of benefits.[120]
These ideas are closely connected to the limitations on the ILC’s
operation and its consequent inability to comprehensively fulfil the objectives
that a native title land fund was intended to deliver. It is essential that this
void is filled, be it through review of the ILC’s role or amendments to
the Native Title Act to provide an alternative form of recognition when native
title is not available.
Recommendations
- 2.1 That any further review or amendment that the Australian Government
undertakes to the native title system be done with a view to how the changes
could impact on the realisation of human rights of Aboriginal and Torres Strait
Islander peoples.
- 2.2 That the Australian Government respond to the recommendations made in
the Native Title Report 2007 on the 2007 changes to the native title
system.
- 2.3 That the Australian Government and the National Native Title Tribunal
draft a comprehensive and clear guide to the registration test. The Australian
Government should consider whether further guidance on the registration test
should be included in the law, through regulation or through amendment to the
Native Title Act.
- 2.4 That the Australian Government monitor the impact of the Queensland NTRB
amalgamations on the bodies’ operation, and provide direction, assistance
and resources to those bodies which require it.
- 2.5 That the Australian Government create a separate funding stream
specifically for Prescribed Bodies Corporate and corporations which are
utilising the procedural rights afforded under the Native Title Act.
- 2.6 That once the CATSI Act has been implemented, the Registrar of
Indigenous Corporations and the Minister for Families, Housing, Community
Services and Indigenous Affairs, together review the impact the law has on
Indigenous corporations. In particular, the review should examine the impact of
the CATSI Act on PBCs’ ability to protect and utilise their native title
rights and interests.
- 2.7 That the Registrar of Indigenous Corporations and the Minister for
Families, Housing, Community Services and Indigenous Affairs, work closely to
ensure that funding provided to registered PBCs is consistent with the aim of
building PBCs’ capacity to operate.
[1] T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007,
Australian Human Rights Commission (2008), pp 24-27. At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html.
[2] R McClelland,
Attorney-General, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008.
[3] G Roche,
Manager, Department of Families, Housing, Community Services and Indigenous
Affairs, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Australian Human Rights Commission, 11 September 2008; G
Neate, President, National Native Title Tribunal, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 27 August 2008.
[4] The survey was completed by
213 individuals and organisations that have had contact with the Tribunal since
its inception: see G Neate, President, National Native Title Tribunal,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 5 August 2008, p 10. Based on
spontaneous awareness, changes to mediation (15%) and the registration test
(14%) were the best known, no other was mentioned by over 10% of the total: see
G Neate, President, National Native Title Tribunal, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 5 August 2008, p 2.
[5] G Neate, President, National
Native Title Tribunal, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 5
August 2008, pp 1-2.
[6] The
government of Western Australia was the only government that I did not receive
input for the Report from. The Western Australian Government was in caretaker
mode when I was collecting information for this Report.
[7] M Scrymgour, Northern
Territory Minister for Indigenous Policy, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 18 September 2008.
[8] J McNamara, Executive Director, Indigenous Services, QLD Department of Natural
Resources and Water, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 18
September 2008; R Hulls, Attorney-General of Victoria, Correspondence to T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 16 September 2008.
[9] R Hulls, Attorney-General of
Victoria, Correspondence to T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Australian Human Rights Commission, 16 September
2008.
[10] M Atkinson,
Attorney-General of South Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 18 September
2008.
[11] For ease of reference
I will use the term NTRB to include both Native Title Representative Bodies and
Native Title Service Delivery Agencies where applicable. NTRBs are bodies
recognised by the minister to perform all the functions listed in the Native
Title Act in Div 3 of Part 11. Native Title Service Delivery Agencies are bodies
that are funded by government to perform some or all of the functions of a
representative body: see s 203FE of the Native Title Act 1993 (Cth).
[12] B Wyatt, CEO,
Goldfields Land and Sea Council Aboriginal Corporation, Correspondence to T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 4 September 2008.
[13] South Australia Native
Title Services, Email to the Native Title Unit at the Australian Human Rights
Commission for the Native Title Report 2008, 18 July
2008.
[14] K Smith, CEO, Qld
South Native Title Services Ltd, Telephone interview with the Native Title
Unit of the Australian Human Rights Commission for the Native Title Report
2008, 19 September 2008.
[15] Anonoymous public officer of a Prescribed Body Corporate, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 8 September
2008.
[16] J Akee, Mer Gedkem Le
(Torres Strait Islanders) Corporation, Telephone interview with the Native
Title Unit of the Australian Human Rights Commission for the Native Title Report
2008, 29 September 2008.
[17] See Chapter 2 of T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2007, Australian Human Rights
Commission (2008) for a detailed description of the amendments and my concerns.
[18] G Neate, President,
National Native Title Tribunal, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
27 August 2008.
[19] J Eaton,
Native Title Registrar, Federal Court of Australia, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 21 August
2008.
[20] J Eaton, Native Title
Registrar, Federal Court of Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 21 August 2008.
[21] K Smith, CEO, Qld South Native Title Services Ltd, Telephone interview with
the Native Title Unit of the Australian Human Rights Commission for the Native
Title Report 2008, 19 September
2008.
[22] See T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008), pp 39-46.
[23] J Eaton, Native Title
Registrar, Federal Court of Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 21 August 2008.
[24] J McNamara, Executive Director, Indigenous Services, QLD Department of Natural
Resources and Water, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 18
September 2008; T Kelly, NSW Minister for Lands, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 1 September 2008. Although the NNTT has issued a number
of Procedural Directions to ensure that when the powers are used, they are
implemented consistently.
[25] K
Smith, CEO, Qld South Native Title Services Ltd, Telephone interview with the
Native Title Unit of the Australian Human Rights Commission for the Native Title
Report 2008, 19 September
2008.
[26] J Eaton, Native Title
Registrar, Federal Court of Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 21 August 2008.
[27] J Eaton, Native Title Registrar, Federal Court of Australia,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 21 August 2008.
[28] See T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), p 45. The amendments
introduced a requirement that each party and each person representing a party in
native title proceedings, must act in good faith in relation to the mediation
(s136B(4) Native Title Act 1993): see J Eaton, Native Title Registrar,
Federal Court of Australia, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
21 August 2008. However, the NNTT has issued a Procedural Direction which sets
out ‘a range of matters that the presiding Member should take into account
in deciding whether he or she considers that a person did not act or is not
acting in good faith in the conduct of a mediation’: see G Neate,
President, National Native Title Tribunal, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 27 August 2008, citing National Native Title Tribunal, Procedural
Direction No.2 of 2007.
[29] G
Neate, President, National Native Title Tribunal, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 27 August 2008.
[30] J Eaton, Native Title
Registrar, Federal Court of Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 21 August 2008.
[31] G Neate, President, National Native Title Tribunal, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 27 August
2008.
[32] B Wyatt, CEO,
Goldfields Land and Sea Council Aboriginal Corporation, Correspondence to T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 4 September 2008.
[33] M Atkinson,
Attorney-General of South Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 18 September 2008.
[34] M Atkinson,
Attorney-General of South Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 18 September 2008.
[35] J Eaton, Native Title Registrar, Federal Court of Australia,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 21 August 2008.
[36] Native Title Act
1993 (Cth) ss 190F(5)-(6); T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2007, Australian Human
Rights Commission (2008), p
52.
[37] T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), p
53.
[38] 17 just accepted, and 6
amended claims were accepted for registration without the registration test
being applied under s 190A(6A) of the Native Title
Act.
[39] National Native Title
Tribunal, National Report: Native Title, June 2008 (2008). At: At: http://www.nntt.gov.au/Applications-And-Determinations/Procedures-and-Guidelines/Documents/National%20Report%20Card%20-%20June%202008.pdf (viewed July 2008).
[40] R Hulls,
Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008.
[41] K Smith,
CEO, Qld South Native Title Services Ltd, Telephone interview with the Native
Title Unit of the Australian Human Rights Commission for the Native Title Report
2008, 19 September
2008.
[42]South Australia Native
Title Services, Email to the Native Title Unit at the Australian Human Rights
Commission for the Native Title Report 2008, 18 July 2008.
[43] B Wyatt, CEO, Goldfields
Land and Sea Council Aboriginal Corporation, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 4 September 2008.
[44] T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), p
53.
[45] Gudjala People 2 v
Native Title Registrar [2007] FCA
1167.
[46] See s190D(2) of the Native Title Act 1993.
[47] Section 190B(5)(a) requires that claimants assert that the claim group
‘have, and the predecessors of those persons had, an association with the
area’.
[48] Gudjala
People 2 v Native Title Registrar [2007] FCA 1167,
51-52.
[49] National Native Title
Tribunal, Native title claimant applications: A guide to understanding the
requirements of the registration test, p 5. At: http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Publications%20particular%20to%20business%20streams/Native%20title%20claimant%20applications%20April%202008.pdf (viewed 17 September 2008).
[50] National Native Title Tribunal, Native title claimant applications: A
guide to understanding the requirements of the registration test, p 5. At: http://www.nntt.gov.au/Publications-And-Research/Publications/Documents/Publications%20particular%20to%20business%20streams/Native%20title%20claimant%20applications%20April%202008.pdf (viewed 17 September 2008).
[51] Gudjala People 2 v Native Title Registrar [2008] FCAFC
157.
[52] Gudjala People 2 v
Native Title Registrar [2008] FCAFC 157, 7 (French, Moore, Lindgren
JJ).
[53] Gudjala People 2 v
Native Title Registrar [2008] FCAFC 157, 92-93 (French, Moore, Lindgren JJ).
[54] See chapter 3 of T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission
(2008),
[55] Note, the
recognition periods were announced in June 2007, see T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), pp
70-78.
[56] G Roche, Manager,
Department of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September
2008.
[57] See T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008), p
75.
[58] G Roche, Manager,
Department of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September
2008.
[59] B Wyatt, CEO,
Goldfields Land and Sea Council Aboriginal Corporation, Correspondence to T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 4 September 2008.
[60] K Smith, CEO, Qld South
Native Title Services Ltd, Telephone interview with the Native Title Unit of
the Australian Human Rights Commission for the Native Title Report 2008, 19
September 2008.
[61] I Kuch,
Transition Manager, North Queensland Land Council, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 25 August 2008. On the 7 September 2005, the former
Attorney-General issued a media release outlining the 2007 changes (see
Attorney-General, ‘Practical reforms to deliver better outcomes in native
title’, (Media Release, 7 September 2005)). However, the changes to
provide NTRBs with multi-year funding were not formally announced until the 23
November 2005 when a joint media release was issued by the former
Attorney-General and former Minister for Indigenous Affairs (see
Attorney-General and the Minster for Immigration, Multicultural and Indigenous
Affairs, ‘Delivering better outcomes in native title – update on the
government’s plan for practical reform’, (Media Release, 23 November
2005)): E McDermott, Department of Families, Housing, Community Services and
Indigenous Affairs, Email to Native Title Unit at the Australian Human Rights
Commission for the Native Title Report 2008, 23 December
2008.
[62] On 7 June 2007, the
former Minister for Families, Community Services and Indigenous Affairs
announced changes to NTRBs in Queensland and noted that certain NTRBs were in
discussion about providing a coordinated approach (see Minister for Families,
Community Services and Indigenous Affairs, ‘Reforms to Native Title
Representative Bodies to benefit Indigenous Australians’ (Media Release, 7
June 2007). At: http://www.facsia.gov.au/Internet/Minister3.nsf/content/ntrb_7jun07.htm (viewed December 2008)). The Department of Families, Housing, Community Services
and Indigenous Affairs informs me that a number of permutations considered
before the amalgamations were finalised in 2008. The eventual outcome, which
differs from that envisaged in the former Minister’s Media Release, was
the result of negotiations amongst the NTRBs themselves. (E McDermott,
Department of Families, Housing, Community Services and Indigenous Affairs, Email to Native Title Unit at the Australian Human Rights Commission for the
Native Title Report 2008, 23 December
2008).
[63] I Kuch, Transition
Manager, North Queensland Land Council, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 25 August 2008.
[64] I Kuch, Transition Manager, North Queensland Land Council, Correspondence to T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 25 August
2008.
[65] K Smith, CEO, Qld
South Native Title Services Ltd, Telephone interview with the Native Title
Unit of the Australian Human Rights Commission for the Native Title Report
2008, 19 September 2008.
[66] I Kuch, Transition Manager, North Queensland Land Council, Correspondence
to T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 25 August 2008.
[67] South Australia Native
Title Services, Email to the Native Title Unit at the Australian Human Rights
Commission for the Native Title Report 2008, 18 July 2008.
[68] K Smith, CEO, Qld South
Native Title Services Ltd, Telephone interview with the Native Title Unit of
the Australian Human Rights Commission for the Native Title Report 2008, 19
September 2008.
[69] T Koch,
Principal Legal Officer, Attorney-General’s Department, Correspondence to
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Australian Human Rights Commission, 28 October 2008.
[70] R McClelland,
Attorney-General, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008.
[71] A Sweeney, Practical and Strategic Considerations for PBCs (Conference Paper for
Native Title Conference, Perth, 3-5 June 2008). At: http://ntru.aiatsis.gov.au/conf2008/ntc08papers/SweeneyA.pdf (viewed September 2008).
[72] See Attorney-General, Speech, (Speech delivered at the Negotiating
Native Title Forum Brisbane, 29 February 2008). At: http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2008_29February2008-NegotiatingNativeTitleForum (viewed March 2008); Minister for Families, Housing, Community Services and
Indigenous Affairs, Beyond Mabo: Native title and closing the gap, (2008
Mabo Lecture, Townsville, 21 May 2008). At: http://www.facs.gov.au/internet/jennymacklin.nsf/print/beyond_mabo_21may08.htm (viewed May 2008); Australian Labor Party, Australian Labor Party National
Platform and Constitution, 2007 At: http://www.alp.org.au/platform/ (viewed May 2008).
[73] P Twigg,
Pila Nguru Aboriginal Corporation, Email to the Native Title Unit at the
Australian Human Rights Commission for the Native Title Report 2008, 9
August 2008.
[74] See below.
[75] See T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), chapter 5 for more
information on the changes and my concerns.
[76] G Roche, Manager,
Department of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September 2008.
[77] A Gordon, Principal
Registry, National Native Title Tribunal, Correspondence to T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 30 June 2008.
[78] G
Roche, Manager, Department of Families, Housing, Community Services and
Indigenous Affairs, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008.
[79] Australian
Government, Department of Families, Community Services and Indigenous Affairs, Native Title Program: Guidelines for Support of Prescribed Bodies Corporate
(PBCs) (2007). At: http://ntru.aiatsis.gov.au/major_projects/pbc_guidelines.PDF (viewed December 2008). PBCs can apply to FaHCSIA for funding for their
administrative costs to the total of $100,000 per
year.
[80] AIATSIS and the NNTT
have both been working to identify alternative sources of funding assistance for
PBCs. See www.aiatsis.gov.au.
[81] A Sweeney, Practical and
Strategic Considerations for PBCs (Conference Paper for Native Title
Conference, Perth, 3-5 June 2008). At: http://ntru.aiatsis.gov.au/conf2008/ntc08papers/SweeneyA.pdf (viewed August 2008).
[82] G
Roche, Manager, Department of Families, Housing, Community Services and
Indigenous Affairs, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008.
[83] T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008), pp 100-101.
[84] See T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), chapter
5.
[85] Most Indigenous
corporations can chose between incorporating under the CATSI Act or the
Corporations Act 2000 (Cth). However, for a PBC to become a Registered Native
Title Body Corporate, they must incorporate under the CATSI Act.
[86] Although PBCs that are
incorporated under the CATSI Act are then referred to as Registered Native Title
Body Corporate, for ease of reference, I will continue to refer to them as PBCs
in this section of this chapter.
[87] T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007, Australian Human Rights
Commission (2008), chapter 6.
[88] A Bevan, Registrar of
Indigenous Corporations, Office of the Registrar of Indigenous Corporations,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 10 October 2008.
[89] A Bevan, Registrar of
Indigenous Corporations, Office of the Registrar of Indigenous Corporations,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 10 October 2008.
[90] A Bevan, Registrar of
Indigenous Corporations, Office of the Registrar of Indigenous Corporations,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 10 October 2008.
[91] A Bevan, Registrar of
Indigenous Corporations, Office of the Registrar of Indigenous Corporations,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 10 October 2008.
[92] Anonoymous public officer
of a Prescribed Body Corporate, Telephone interview with the Native Title
Unit of the Australian Human Rights Commission for the Native Title Report
2008, 8 September 2008.
[93] A Bevan, Registrar of Indigenous Corporations, Office of the Registrar of
Indigenous Corporations, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 10
October 2008.
[94] R McClelland,
Attorney-General, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008.
[95] M Scrymgour,
Northern Territory Minister for Indigenous Policy, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 18 September 2008.
[96] Various native title
reports, including this Report, have discussed the barriers in the native title
system which may prevent broader outcomes being achieved through the system.
Some of these relate to procedures in the Act, or legal interpretation of
provisions. Others are related to government policy and funding. Some examples
include the inability of the Act to recognise commercial rights; the pressure of
court timing and processes on the parties when they are trying to reach an
agreement which is broader than just a native title outcome; the funding,
resourcing and capacity of PBCs and NTRBs to develop, negotiate and implement
agreements.
[97] J McNamara,
Executive Director, Indigenous Services, QLD Department of Natural Resources and
Water, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Australian Human Rights Commission, 18 September 2008; M
Atkinson, Attorney-General of South Australia, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 18 September 2008; T Kelly, NSW Minister for Lands,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 1 September 2008; R Hulls,
Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008; J Stanhope, ACT Minister for Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 9 September 2008.
[98] M Atkinson,
Attorney-General of South Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 18 September 2008.
[99] Attorney-General,
‘Native Title Ministers’ Meeting Communiqué’, (Media
release, 18 July 2008). At: http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/MediaReleases_2008_ThirdQuarter_18July-Communique-NativeTitleMinistersMeeting (viewed 21 July 2008). The Communiqué stated that the federal, state and
territory governments will reach an agreement by 30 June 2009 on the federal
funding to states and territories for native title compensation.
[100] R Hulls,
Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008.
[101] M
Atkinson, Attorney-General of South Australia, Correspondence to T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian
Human Rights Commission, 18 September 2008.
[102] R Hulls,
Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
16 September 2008.
[103] G
Roche, Manager, Department of Families, Housing, Community Services and
Indigenous Affairs, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 11
September 2008; see T Bauman, Final Report of the Indigenous Facilitation and
Mediation Project July 2003-June 2006: research findings, recommendations and
implementation, Report No. 6 (2006). At: http://ntru.aiatsis.gov.au/ifamp/research/pdfs/ifamp_final.pdf (viewed December 2008).
[104] See T Bauman, Final Report of the Indigenous Facilitation and Mediation
Project July 2003-June 2006: research findings, recommendations and
implementation, Report No. 6 (2006). At: http://ntru.aiatsis.gov.au/ifamp/research/pdfs/ifamp_final.pdf (viewed December 2008).
[105] See T Bauman, Final Report of the Indigenous Facilitation and Mediation
Project July 2003-June 2006: research findings, recommendations and
implementation, Report No. 6 (2006). At: http://ntru.aiatsis.gov.au/ifamp/research/pdfs/ifamp_final.pdf (viewed December 2008).
[106] R
Hulls, Attorney-General of Victoria, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 16 September 2008.
[107] See Australian Institute
of Aboriginal and Torres Strait Islander Studies, Major Projects, http://ntru.aiatsis.gov.au/major_projects/pbc_rntbc.html (viewed December 2008).
[108] T Kelly, NSW Minister for Lands, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 1 September 2008.
[109] J McNamara, Executive Director, Indigenous Services, QLD Department of
Natural Resources and Water, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
18 September 2008.
[110] M
Wilcox, former Justice of the Federal Court of Australia, Telephone interview
with the Native Title Unit of the Australian Human Rights Commission for the
Native Title Report 2008, 23 July
2008.
[111] Native Title Act
1993 (Cth), preamble.
[112] Australian Labor Party, Australian Labor Party National Platform and
Constitution (2007). At: www.alp.org.au/platform/, chapter 13
(viewed July 2008).
[113] See
Appendix 3.
[114] The ILC was
established in 1995 by the Land Fund and Indigenous Land Corporation (ATSIC
Amendment) Act 1995. This Act repealed Part 10 of the Native Title Act
(which had established the National Aboriginal and Torres Strait Islander Land
Fund), and amended the Aboriginal and Torres Strait Islander Commission Act
1989 (ATSIC Act) by adding a new Part 4A, establishing the ILC as a
Commonwealth Authority with land acquisition and land management functions. See
the ILC website at: www.ilc.gov.au.
[115] Many of these comments
were informal comments made to me at the AIATSIS Native Title Conference 2008,
held in Perth, June 2008.
[116] J McNamara, Executive
Director, Indigenous Services, QLD Department of Natural Resources and Water,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 18 September 2008.
[117] K Smith, CEO, Qld South
Native Title Services Ltd, Telephone interview with the Native Title Unit of
the Australian Human Rights Commission for the Native Title Report 2008, 19
September 2008.
[118] M Wilcox,
former Justice of the Federal Court of Australia, Telephone interview with
the Native Title Unit of the Australian Human Rights Commission for the Native
Title Report 2008, 23 July
2008.
[119] M Wilcox, former
Justice of the Federal Court of Australia, Telephone interview with the
Native Title Unit of the Australian Human Rights Commission for the Native Title
Report 2008, 23 July 2008.
[120] J McNamara, Executive Director, Indigenous Services, QLD Department of
Natural Resources and Water, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
18 September 2008.
