Native Title

News & Resources

Regional Goal

Protect, maintain and progress native title rights and recognition over the region’s land and sea country.

Programme Goal

The Native Title Programme goal is:

  • To provide high-quality and culturally appropriate professional services to native title holders and claimants in the Torres Strait region, to facilitate the securing of legal recognition of native title to land and waters in the Torres Strait and thereby improve opportunities for improved economic, cultural and social participation for Torres Strait Islander and Aboriginal people living in the region.

Programme Objectives

The Native Title Programme component will:

  • assist Traditional Owners obtain legal recognition of native title over land and sea in the Torres Strait region
  • manage and legally protect native title rights
  • build the capacity of Prescribed Bodies Corporate (PBCs).

Programme Deliverables

  • Provide legal, policy and advocacy support for PBCs.
  • Support native title activities, including determination of claims and provision of legal advice and support.
  • Negotiate and execute Indigenous Land Use Agreements (ILUAs) and other statutory agreements.
  • Provide legal advice and support in relation to Future Acts.

Programme Expenditure 2014 - 2015

Table 2-21: Native Title Programme Expenditure, 2014 - 2015 (unaudited)

Budget
$’000
Actual
$’000
Variance
$’000
3,760 3,792 (32)

Torres Strait Development Plan Outcomes

  • Changes to native title and Fisheries legislation which recognise the commercial rights as part of the native title rights of Traditional Owners under the Torres Strait Sea Claim Part A determination.
  • Successfully negotiated Future Acts and Indigenous Land Use Agreements.
  • Native title claims are successfully determined.
  • Prescribed Bodies Corporate understand and meet their responsibilities under the Native Title Act 1993 (Cth).

Programme Performance

Activity Flag Status
Native title compensation an open circle The Native Title Office briefed counsel to provide an opinion on the feasibility regarding a compensation claim for Mer under the Native Title Act.This matter is currently in progress, with a view to lodging a compensation claim in the Federal court by December 2015.
Deeds of Grant in Trust (DOGIT) transfer an open circle The Queensland Government advised that there are currently no funded DOGIT transfers planned for the Torres Strait region.
Katter leases an open circle There are 351 Katter leases in the region. The TSRA does not have the legal resources to process Katter lease applications on behalf of Traditional Owners.The Native Title Office provides information on the lease process to PBCs and Traditional Owners and assists them to refer enquiries directly to the Queensland Government.
Major Infrastructure Indigenous Land Use Agreement a yellow circle The Native Title Office is working on draft 22 of the Major Infrastructure ILUA with the Queensland Government and the Torres Strait Island Regional Council.
Management of Future Acts a yellow circle The Native Title Office has received 85 Future Act notices this financial year. The Native Title Office has responded to 65 of these notices.The Torres Strait Fisheries Working Group is a committee elected by the Malu Lamar (TSI) Corporation to assist with responses to Future Act notices relevant to the Torres Strait Regional Sea Claim Part A area.
Native title claim Naghir Island a black circle One of the native title parties raised issues regarding the future conduct of the Naghir Island native title claim and concerns regarding anthropological research. This matter is currently under consideration regarding future funding.
Torres Strait Regional Sea Claim Part B (QUD6040/2001 ) an open circle The Part B area is wholly overlapped by two claims – one claim filed on behalf of the Kaurareg People and the other claim filed on behalf of the Gudang Yadheykenu People.
During Federal Court ordered mediation held earlier this year, agreement was reached between Badulgal, Mualgal and Kaurareg peoples that the western overlap is shared sea country. Negotiations have now commenced with the other respondent parties towards a consent determination in 2016 for the western agreed area.
Negotiations with the Gudang Yadheykenu People about resolving the eastern overlap area will be scheduled once the western overlap is determined.
National Native Title Conference a yellow circle Torres Strait Prescribed Body Corporate delegates attended the National Native Title Conference, held from 14-18 June 2015. The Malu Lamar (TSI) Corporation Chairperson Maluwap Nona presented on the success of the Torres Strait sea claim. The TSRA Chairperson Mr Joseph Elu facilitated the Mabo lecture.
NTRB legal services a yellow circle The Native Title Office provided legal assistance to all Torres Strait PBCs and Traditional Owners upon request. Table 2.22 provides statistical information on levels of engagement.
PBC working group an open circle There was no requirement to schedule a separate PBC working group meeting this financial year. The Native Title Office fulfilled its engagement obligations with PBC chairs through meetings held at the National Native Title Conference and the regional sea forum.
Legend
an open circle
Not yet started
a yellow circle
Completed / On schedule
a gray circle
Behind schedule less than three months
a black circle
Behind schedule more than three months

a photograph of Kaurareg Native Title Aboriginal Corporation Chair Mr Milton Savage

Kaurareg Native Title Aboriginal Corporation Chair Mr Milton Savage.

Additional Programme Specific Performance Indicators

Indicator Flag Status
Number of changes to native title and fisheries legislation that reflect the commercial rights of Traditional Owners. an open circle The Malu Lamar (TSI) RNTBC has a technical working group engaged to look at changes to fisheries and native title legislation.
Number of reported non-compliance matters involving Prescribed Bodies Corporate. a yellow circle There are no reported non-compliance matters for the region.
Number of Deeds of Grant in Trust (DOGITs) transferred to Prescribed Bodies Corporate with appropriate support mechanisms. an open circle The Queensland Government has advised there are currently no further DOGIT transfers planned for the Torres Strait region.
Legend
an open circle
Not yet started
a yellow circle
KPI achieved
a gray circle
KPI partially achieved
a black circle
KPI not achieved

a photograph of dancers at Torres Strait Masks Exhibition

Dancers at Torres Strait Masks Exhibition.

PERFORMANCE MEASURES

  • Number of changes to native title and Fisheries legislation that reflect the commercial rights of Traditional Owners.
  • Number of ILUAs that have compensation or other benefits as part of the ILUA terms.
  • Number of reported non-compliance matters involving PBCs.
  • Number of native title determination claims successfully determined.
  • Number of DOGITs transferred to PBCs with appropriate support mechanisms.

Figure 2-8: Native Title Programme Map

Figure 2-8: Native Title Programme Map

a photograph of Ugar Traditional Owners mapping out traditional land boundaries, top a photograph of Ugar Traditional Owners mapping out traditional land boundaries, bottom

Ugar Traditional Owners mapping out traditional land boundaries.

Statistical Data

Table 2-22 provides a statistical summary of Native Title Programme activity in 2014 - 2015.

Table 2-22: NTRB Performance Statistics

Facilitation and assistance Number
1. Claims experience
Claimant applications
  Active claims represented at 30 June 2014 2
  Plus claims filed this year by Native Title Representative Body 0
  Less claims determined 2014 - 2015 0
  Less claims dismissed 2014 - 2015 0
  Less claims withdrawn 2014 - 2015 0
  (+ or -) Other disposition (describe)
  Active claims represented at 30 June 2015 2
   Number of these registered by National Native Title Tribunal 2
  Claims in Development 1
Non-claimant applications 0
Compensation claims 0
2. Agreements experience
  Future Act notices received 85
  Responses to Future Acts 63
  Agreements concluded 0
  Agreements in development 2
  Indigenous Land Use Agreements concluded and registered 3
  Indigenous Land Use Agreements in development 37
Complaints and disputes
  Complaints
   Received 0
   Resolved 0
   Pending 0
  Disputes relating to native title applications 0
  Disputes relating to Indigenous Land Use Agreements, rights of access and other matters 0
Requests for review of decisions not to assist
  Requests received 0
  Reviews completed 0

Case Study: Keeping Native Title Holders Informed – Sea Forum Summits

As the Native Title Representative Body (NTRB) for the Torres Strait region, the TSRA, through the Native Title Office (NTO), has the function of informing native title holders of any matter which may relate to or have an impact on native title in the area under section 203BJ of the Native Title Act 1993 (Cth).

In 2014 - 2015, there were many changes to state legislation that, potentially, could impact on the native title rights and interests of Traditional Owners in the region. An example of this is the amendment to the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) regarding Katter leases and the amendment to the Torres Strait Islander Land Act 1991 (Qld) to allow freehold title. The changes will allow the grant of Katter lease applications and the introduction of freehold title on Torres Strait Islander land. The NTO not only has an obligation to make submissions to the relevant agency before the introduction of the legislation, but also to inform the region’s Traditional Owners through the Prescribed Bodies Corporate (PBCs) of the possible impact of those changes on native title rights and interests.

PBCs hold native title in trust for all the Traditional Owners in the native title determination area and are incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). PBCs are appointed by the Federal Court following a determination of native title and have land dispute resolution functions when it comes to matters involving native title land. For example, should the government wish to make a grant of freehold title on native title land, an Indigenous Land Use Agreement (ILUA) will be required since the grant of freehold will extinguish native title. The PBC is required by law to engage with the Traditional Owners of the land and obtain their consent in writing before the PBC can sign off on an ILUA which would allow the grant of freehold to go ahead.

A Sea Forum Summit is an important platform for informing all Traditional Owners through their PBCs of issues that can affect them

Keeping the PBCs informed is the best way of ensuring that important information of regional significance gets to the Traditional Owners so that a decision can be made with free, prior and informed consent.

A Sea Forum Summit is an important platform for informing all Traditional Owners through their PBCs of issues that can affect them, and provides direct and immediate feedback to governments on proposed changes to policies or legislation.

a photograph of the chairs of Prescribed Bodies Corporate receiving an update on cultural heritage from Mr John Schiaro

The chairs of Prescribed Bodies Corporate receiving an update on cultural heritage from Mr John Schiaro, principal cultural heritage adviser, Queensland Department of Aboriginal and Torres Strait Islander Partnerships.

The NTO arranged a Sea Forum Summit in Cairns from 18 to 20 February 2015. The summit was attended by the chairs of the 21 PBCs in the region and by Queensland Government representatives, including Ministers, who were able to provide an update on and explanation of important issues, such as the social housing programme and land tenure and cultural heritage matters. The Mayor of the Torres Strait Island Regional Council provided an update on local government matters and the NTO legal team gave an update on progress on the Torres Strait Regional Sea Claim Part B and on other native title matters of regional significance.

With all PBC chairs also being members of Malu Lamar, which is the PBC for the Torres Strait Regional Sea Claim Part A, there was opportunity to hold a Malu Lamar meeting to discuss progress in the area of fisheries reform. To this end, a Malu Lamar fisheries working group was given authority to progress discussions with all fisheries stakeholders in the Torres Strait on their goal of 100 per cent ownership.

At the end of the Sea Forum Summit, a number of resolutions were recorded and voted on. Those resolutions included instructions to the TSRA in its capacity as the NTRB or instructions to the NTO to write to relevant Ministers outlining concerns regarding proposed changes to the law.

Native Title Representative Body Reporting

The information reported in this section is specific to TSRA’s Native Title Representative Body (NTRB) functions under the Native Title Act 1993 (Cth).

Overview of the TSRA as a Native Title Representative Body

Native Title Representative Bodies (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. 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 2015 - 2016.

The NTO Operational Plan for 2014 - 2015 is aligned to the Torres Strait Development Plan2014 - 2018.

Native Title Representative Bodies are primarily responsible for providing effective and equitable native title and related assistance to constituents in their prescribed regions.

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 and the Corporations (Aboriginal and Torres Strait Islander) Act.

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 programme. 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. 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, which states:

  1. A representative body has the following functions:
    1. the facilitation and assistance functions referred to in section 203BB;
    2. the certification functions referred to in section 203BE;
    3. the dispute resolution functions referred to in section 203BF;
    4. the notification functions referred to in section 203BG;
    5. the agreement making function referred to in section 203BH;
    6. the internal review functions referred to in section 203BI; and
    7. the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.

A 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 programme 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 Programme Report on pages 80 to 91 provide 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 Social Housing Indigenous Land Use Agreement (ILUA). This ILUA is in its twenty-second draft and the TSRA expects the issues to be resolved in 2015 - 2016.

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’s response is that the PBCs themselves should resolve disputes 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 2014 - 2015 financial year, the NTO received $3.760 million for operations.

The financial performance of the TSRA in its NTRB capacity is outlined in Table 2-23.

Table 2-23: NTRB Financial Performance, 2014 - 2015 (unaudited)

NTRB functions Actual
2013 - 2014
$’000
Budget
2014 - 2015
$’000
Actual
2014 - 2015
$’000
Variation
2014 - 2015
$’000
Expenditure
Capital - - - -
Activities 2,293 3,200 3,194(1) 6
Corporate 605 560 598 (38)
Total 2,898 3,760 3,792 (32)
Income
Australian Government via Appropriation 2,959 3,760 3,760 0
Activity Generated Income - - - -
Interest - - - -
Reversal of previous Asset write downs - - - -
Other - - - -
Total 2,959 3,760 3,760 0
(1) This figure includes $0.115 million in credits from the Queensland Government for work relating to Indigenous Land Use Agreements performed by the NTRB on their behalf.

Performance against Budget

In performing its NTRB role, the TSRA has operated within the planned budget for 2014 - 2015.

There have been no significant changes in funding from 2013 - 2014 or changes to the 2014 - 2015 budget during the year.

There have been no significant occurrences during the period between the end of the reporting period and the tabling of the Annual Report of Operations.

Management of Human Resources

The NTO has five employees, four of whom live in the region. They are:

  • a Principal Legal Officer
  • a Paralegal
  • three Administration Support Officers.

Since 2005, the NTO has assisted 20 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. This Enterprise Agreement will remain in force until negotiations on the new Enterprise Agreement are complete. 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 2-24 shows the representation of Equal Employment Opportunity groups and classification levels in the NTO as at 30 June 2015.

Table 2-24: Equal Employment Opportunity Groups, Native Title Office, 2014 - 2015

APS classification Female Male Torres Strait Islander or Aboriginal People with a disability
Executive Level 2 0 1 0 0
Executive Level 1 0 0 0 0
APS Level 6 0 0 0 0
APS Level 5 1 0 1 0
APS Level 3 3 0 3 0
Total 4 1 4 0

NTO Consultancies for the 2014 - 2015 Reporting Period

The NTO uses external legal counsel and external consultants to meet its strategic objectives. Table 2-25 shows the consultants engaged during the reporting period.

Table 2-25: Consultants Engaged by the NTO, 2014 - 2015

Expertise Consultant Service
Legal Robert Blowes SC Senior counsel for the Torres Strait Regional Sea Claim Part B
Tom Keely Junior counsel for the Torres Strait Regional Sea Claim Part B
Tina Jowett Counsel assisting with the negotiation of ILUAs and native title compensation
Michael Neal Independent legal representation for Naghir and Warral and Ului matters
Jim Brooks Independent legal representation for Naghir matter
Oliver Gilkerson Advice and assistance with the Deed of Grant in Trust (DOGIT) transfer
Development of an infrastructure and social housing ILUA
Advice and assistance with the Mer reserve transfer ILUA
Advice and assistance with the Saibai sea walls projectLegal representative for the Torres Strait Regional Sea Claim Part B
Advice and assistance with Future Acts
Marrawah Law Kaurareg native title claims (brief out)
Greg McIntyre SC Independent legal representative for Naghir matter
Paul Sheiner Independent legal representative for Naghir matter
Prestons Law Representative for Bamaga in the Cape York native title claim
Dr Kevin Murphy Torres Strait Regional Sea Claim Part B and Warral and Ului anthropological advice and reports
Anthropological Dr Brendan Corrigan Research and advice for the Naghir matter

a photograph of Poruma PBC Chair Frank Fauid, TSRA Chair and TSRA Member for Poruma

Poruma PBC Chair Frank Fauid, TSRA Chair and TSRA Member for Poruma.