The information reported in this section is specific to TSRA Native Title Representative Body (NTRB) function under the Native Title Act 1993 (Cth).
Overview of TSRA as a Native Title Representative Body
NTRBs are primarily responsible for providing effective and equitable native title and related assistance to constituents in their prescribed regions. Constituents are those persons who hold or may hold native title in the region where the NTRB performs its functions. One of the guiding principles for the operation of NTRBs is that they should act in the best interests of their constituents.
The TSRA, through its Native Title Office (NTO), performs the NTRB functions for the Torres Strait region. In 1996 the TSRA was appointed as a recognised NTRB under the Native Title Act 1993 (Cth). The 1998 amendments to the Act required that NTRBs reapply for recognition. The TSRA was invited to reapply and was subsequently recognised as the Torres Strait NTRB for the period 2013 - 2015.
The NTO Operational Plan for 2012 - 2013 is aligned to the TSRA Torres Strait Development Plan 2009 - 2013.
Prescribed Bodies Corporate
When a favourable determination of native title is made by the Federal Court, the Traditional Owners are required to establish a Prescribed Body Corporate (PBC). PBCs must be incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The PBC model was adopted to enable native title communal property rights to interact meaningfully with Australian property law. It ensures that the body is represented by a legal entity vested with authority to make binding decisions on its behalf, thus ensuring legal certainty for any parties wishing to negotiate, conduct business or make agreements with the native title holding body. The TSRA recognises that PBCs have specific functions and obligations under both the Native Title Act 1993 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
The TSRA has established a PBC capacity-building grants facility. All PBCs in the region are invited to apply for financial assistance to offset the administrative costs associated with their native title role. The PBC grants are managed as part of the TSRA's biannual common funding rounds. Capacity building for PBCs is managed by the TSRA's Governance and Leadership Program. The NTO was instrumental in establishing the Queensland PBC working group as a lobby group to highlight the issues facing PBCs in Queensland and the rest of Australia.
Legislative Functions of the TSRA in its NTRB Capacity
In its NTRB role, the TSRA through the NTO, performs specific functions under the Native Title Act 1993 (Cth). These include:
- facilitating the conduct of research, and the preparation and making of claims, by groups of Aboriginal peoples or Torres Strait Islanders, for determinations of native title and for compensation for acts affecting their native title
- assisting in the resolution of disputes within groups about the making of such claims
- assisting groups by representing them, if requested to do so, in negotiations and proceedings relating to the doing of acts affecting native title, the provision of compensation in relation to such acts and any other matter relevant to the operation of the Act
- facilitating support for and assistance to PBCs.
The legislative functions of NTRBs are set out in section 203B of the Native Title Act 1993 (Cth) which states:
- A representative body has the following functions:
- the facilitation and assistance functions referred to in section 203BB;
- the certification functions referred to in section 203BE;
- the dispute resolution functions referred to in section 203BF;
- the notification functions referred to in section 203BG;
- the agreement making function referred to in section 203BH;
- the internal review functions referred to in section 203BI;
- the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.
An NTRB may only perform its facilitation and assistance functions if requested to do so.
Organisational Structure and Corporate Governance Policies
NTO staff operate as a program within the TSRA and are therefore included within the TSRA's organisational structure (see Appendix 1). Similarly, NTO staff are bound by the same corporate governance policies that apply to the TSRA generally.
Report on Performance
In addition to the information below, the Native Title Program Report on pages 60 to 69 provides statistical data on claims, agreements and complaints.
The TSRA operates in a predominantly post-determination environment. There are no significant trends in operating statistics which require intervention.
The TSRA is continuing to negotiate with the Queensland Government to resolve specific points of the Infrastructure and Housing Land Use Agreement (ILUA). One of the unresolved issues is the methodology for valuing Native Title land. The ILUA is in its seventeenth draft and the TSRA expects the issues to be resolved in 2013 - 2014.
There have been no significant changes in the nature of the principal functions and services provided through the NTO.
The general nature of complaints received have been that the PBCs have not consulted widely in communities (with all Traditional Owners) when communicating decisions relating to the ILUAs and Future Acts. The NTRB response is generally that this is a matter for the PBCs themselves to resolve under their rules. The PBC Support Officer and visiting legal staff from the NTO reinforce this requirement with PBC members during community visits.
Summary Resources Table
For the 2012 - 2013 financial year, the NTO received $2.615 million for operations.
The financial performance of the TSRA in its NTRB capacity is outlined in the table 2-8 .
|NTRB Functions||Actual 2011 - 12 $'000||Budget 2012 - 2013 $'000||Actual 2012 - 2013 $'000||Variation 2012 - 2013 $'000|
|Activity Generated Income|
|Reversal of previous Asset write downs|
|FaHCSIA = Department of Families, Housing, Community Services and Indigenous Affairs|
Performance against Budget
In performing its NTRB role, the TSRA has operated within the planned budget for 2012 - 2013.
There have been no significant changes in funding from 2011 - 2012 or changes to the 2012 - 2013 budget during the year.
During the period between the end of the reporting period and the tabling of the Annual Report of Operations, the Regional Sea Claim (Part B) determination was handed down by the High Court of Australia. The determination made on 7 August 2013 confirms the decision of Justice Finn in July 2010. The determination means that the Traditional rights of Torres Strait Islanders and Aboriginal People in the seas that belong to island communities and the seas they share with other islands are not just traditional and recognised amongst themselves but are legal rights recognised and protected by the law of Australia. This determination may significantly affect the NTRB's operations in future.
Management of Human Resources
The NTO has six employees, all of whom live in the region. They are:
- a Principal Legal Officer
- a Senior Legal Officer
- a Legal Officer
- a Paralegal
- two Administration Support Officers.
Since 2005, the NTO has assisted 15 law students to undertake legal internships through the Aurora Project. One student has also undertaken Practical Legal Training.
Information about workforce planning, workplace health and safety, indemnities and insurance premiums for NTO staff are included within the TSRA's procedures and policies.
All NTO staff are subject to the TSRA Enterprise Agreement 2011 - 2014. No NTO staff are on Australian Workplace Agreements.
NTO staff members participated in training and development with other TSRA staff as well as training and development to meet the requirements for legal practitioners in Queensland under the relevant legislation.
Table 2-9 shows the representation of Equal Employment Opportunity groups and classification levels in the NTO as at 30 June 2013. Two NTO positions that were vacant on 30 June 2013 are under recruitment.
Table 2-9 Equal Employment Opportunity Groups, Native Title Office
|APS classification||Female||Male||Torres Strait Islander or Aboriginal||People with a disability|
NTO Consultancies for the 2012 - 2013 Reporting Period
The NTO uses external legal counsel and external
consultants to meet its strategic objectives.
Table 2-10 shows the consultants engaged during
the reporting period.
|Legal||Robert Blowes SC|| Torres Strait Regional Sea Claim High Court Appeal |
Senior Counsel for the Torres Strait Regional Sea Claim
Establishment of a Regional Sea Claim PBC
|Bret Walker SC||Torres Strait Regional Sea Claim High Court Appeal|
|Tom Keely|| Junior Counsel for the Torres Strait Regional Sea Claim |
Junior Counsel for the Torres Strait Regional Sea Claim High Court Appeal
|Tina Jowett||Counsel assisting with the negotiation of ILUAs|
|Michael Neal||Independent legal representation for Naghir matter|
|Jim Brooks||Independent legal representation for Naghir matter|
|Oliver Gilkerson|| Advice and assistance with the DOGIT transfer |
Development of an Infrastructure and Housing ILUA
Advice and assistance with the Mer Reserve Transfer ILUA
Advice and assistance with the Saibai Sea Walls project
|Helen Bowskill||Advice and assistance with the DOGIT transfer|
|Chalk & Fitzgerald||Kaurareg Native Title Claims|
|Greg McIntyre SC||Independent Legal Representative for Naghir matter|
|Paul Sheiner||Independent Legal Representative for Naghir matter|
|Bottoms English||Badu DOGIT Transfer|
|Anthropological||Dr Garrick Hitchcock||Sea Claim anthropological advice and Zuizin anthropological research|
|Dr Brendan Corrigan|| Anthropological advice regarding the Warral and Ului Native title claim |
Research and advice for the Naghir matter
|DOGIT = deeds of grant in trust, ILUA = Indigenous land use agreement, PBC = prescribed body corporate|
Statements for the Purpose of the Native Title Act
The TSRA is a recognised NTRB and has legislative functions pursuant to Section 203B of the Native Title Act 1993 (Cth). Native Title Program reporting, as contained within the TSRA Annual Report 2012 - 2013, is also a report for the purposes of the Native Title Act 1993 (Cth).
The NTO has been audited in accordance with the audit reports set out in Section 5, Financial Statements.
Environmental Protection in Indigenous Land Use Agreements
Indigenous Land Use Agreements (ILUAs) provide environmental and cultural heritage protection. While the clauses in each ILUA may differ, the ILUAs place responsibility on external stakeholders to take all reasonable steps to reduce and minimise the impact the proposed activity may have on the local environment. If there is an environmental incident, the external stakeholder will usually attempt to rehabilitate and minimise the damage in accordance with their contractual requirements. Under the Torres Strait Islander Cultural Heritage Act 2003 (Qld) each ILUA details a cultural heritage process and stipulates the procedures that must be followed if a cultural artefact or human remains are found.
While the clauses in each ILUA may differ, the ILUAs place responsibility on external stakeholders to take all reasonable steps to reduce and minimise the impact the proposed activity may have on the local environment.
In 2010, the Federal Court of Australia handed down the Torres Strait Regional Sea Claim judgement. Pursuant to the judgement, the determination was made on 23 August 2010 and was registered with the National Native Title Tribunal. This sea claim decision was appealed by the Australian Government and the Queensland Government on limited grounds involving the recognition of the right to trade in marine resources as a native title right. The full bench of the Federal Court heard the appeal in May 2011 and handed down their judgment in March 2012, upholding the appeal. The NTO lodged an application for special leave to appeal this decision in the High Court of Australia; leave was granted on 5 October 2012. The appeal was heard by the High Court of Australia on 12 February 2013, with a decision to be handed down in 2013.
The NTRB compliance statements are included in the TSRA statements in Section 7.