Native Title

News & Resources

Regional Goal

Effective and transparent self-government with strong leadership.

Program Goal

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.

Program Objectives

This program component will:

  • assist Traditional Owners to obtain legal recognition of native title over land and sea in the Torres Strait Region
  • protect and manage native title rights
    • ensure that mainstream services are contributing to and meeting regional goals and outcomes
    • improve communication and information networks across communities
    • build the capacity of Prescribed Bodies Corporate (PBCs)
    • involve Torres Strait Islander and Aboriginal leaders in Integrated Service Delivery
    • strengthen leadership within communities
    • grow future leaders for the community
    • encourage more women to seek leadership roles
    • optimise and enhance the TSRA Board Member decision-making and communication capabilities
A photograph showing a group of High Court sea claim supporters

High Court sea claim supporters.

Program 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 and other statutory agreements
  • Provide legal advice and support in relation to Future Acts

Program Expenditure 2012 - 2013

Table 2-6 Native Title Program Expenditure

Budget $'000's Actual $'000's Variance $'000's
2,615 2,627 12
A chart illustrating the details of TSRA's native title program

Native Title Program Projects and Achievements

Project Name: Indigenous Land Use Agreement (ILUA) and Future Acts

Project purpose

Native Title Compliance and Infrastructure Delivery.

Achievements for 2012 - 2013

The Native Title Office (NTO) executed six ILUAs. Four of these have been registered with the National Native Title Tribunal.

Agreement was reached with the Torres Strait Island Regional Council on Native Title compliance for the Saibai sea wall project. ILUA matters progressed in this reporting period include:
  • drafting the Infrastructure and Housing ILUA template
  • executing and registering the Mer reserve transfer ILUA
  • progressing negotiations for six IBIS leases
  • progressing negotiations for social housing ILUAs
  • progressing negotiations for three ILUAs for DAFF Biosecurity (formerly the Australian Quarantine and Inspection Service).

Project Name: Native Title Claims

Project purpose

Native Title Determination.

Achievements for 2012 - 2013

The Regional Sea Claim High Court Appeal was heard on 12 February 2013. The decision was deferred until August 2013.

There are three current ongoing native title Determination claimant applications in the Federal Court:

  • Zuizin Island Claim
  • Warral and Ului
  • Regional Sea Claim Part B.

Anthropological research on Naghir Island is being undertaken with a view to lodging a native title claimant application in the future.

Native Title Program Projects and Achievements

Project Name: Legal, Policy and Advocacy Support for Registered Native Title Prescribed Bodies Corporate

Project purpose

Infrastructure delivery, law reform and interpretation of the Native Title Act.

Achievements for 2012 - 2013

Responses to requests for submissions were sent on:

  • amendment of the Native Title Act 1993 (Cth) regarding the tax status of payments under Indigenous land use agreements (Attorney-General's Department consultation)
  • the provision of freehold title in Torres Strait Islander communities (Queensland Government discussion paper)
  • the provision of ongoing support to Prescribed Bodies Corporate (PBCs) following the transfer of Deed of Grant in Trust (DOGIT) land (Australian Government and Queensland Government).

DOGIT transfer matters were progressed with the successful transfer of the Mer reserve to Mer Gedkem Le Registered Native Title Body Corporate.

The Native Title Office, in partnership with the Australian Institute of Aboriginal and Torres Strait Islander Studies, funded 24 representatives from PBCs in the region to attend the 2013 National Native Title Conference in Alice Springs.

A Queensland PBC working group was established to act as a lobby group to further enhance the capacity of PBCs in the region.

A photograph of Indigenous Land Use Agreement signing, Warraber

Indigenous Land Use Agreement signing, Warraber.

Key Performance Indicators – Portfolio Budget Statements

Number of native title determinations, negotiated and registered ILUAs, and number of future act notifications facilitated in the Torres Strait.

The Regional Sea Claim appeal was heard in the High Court of Australia on 12 February 2013.

In summary, the grounds of appeal were as follows:

  • The native title rights to access or take resources (including marine resources) are not restricted to traditional use only and can be for commercial use. Fisheries and other Legislation did not extinguish native title rights to trade commercially.
  • Reciprocity rights under Islander customary law should be recognised as native title rights.
  • Otherwise, the decision of Justice Finn stands in that Native Title exists in the determination area and native title rights and interests are subject to the traditional laws and customs of the native title holders and the laws of Queensland and the Commonwealth.
  • The native title rights and interests are non-exclusive, which means that the Traditional Owners cannot prevent anyone from lawfully accessing the determination area. This does not prevent any person who has a fishing or other licence from engaging in that activity in the area.

Statistical Data

Table 2-7 Performance Statistics

Facilitation and assistance Number
1. The Claims Experience  
Claimant Applications  
Active claims represented at 30 June 2012 3
Plus Claims Filed this year by NTRB 0
Less Claims Determined 2012 - 2013 0
Less Claims Dismissed 2012 - 2013 0
Less Claims Withdrawn 2012 - 2013 1
Active Claims represented at 30 June 2013 3
– Number of these registered by NNTT 3
Claims in Development 1
Non-Claimant Applications 0
Compensation Claims 0
2. The Agreements Experience  
Future Act Notices received 60
Responses to Future Acts 52
Agreements Concluded 1
Agreements in Development 0
ILUAs concluded and registered 5
ILUAs in Development 12
Complaints and Disputes
Complaints  
• Received 0
• Resolved 0
• Pending 0
Disputes relating to Native Title Applications 0
Disputes relating to ILUAs, rights of access and other matters 0
Requests for Review of decisions not to assist  
Requests Received 0
Reviews Completed 0
ILUA = Indigenous land use agreement, NNTB = National Native Title Tribunal, NTRBs = native title representative bodies  

Legal, policy and advocacy support for PBCs

Number of pieces of legislation and policies that are beneficial and appropriate to the Torres Strait

Reduced length of negotiation processes

Compliance with legislative requirements for Future Acts

The TSRA's Native Title Office (NTO) provides support to Prescribed Bodies Corporate (PBCs) and in-house advice, negotiation and advocacy for the Traditional Owners throughout the Torres Strait region. This includes the preparation of submissions to government agencies on changes in native title law.

Short-term benefit description
Increased legislation and policies beneficial and appropriate to the region.

Benefit target Progress COAG target
One or more policies developed by the end of 2012 - 2013. The Native Title Office (NTO) progressed Deeds of Grant in Trust and reserve transfer matters by providing legal support to Prescribed Bodies Corporate in their negotiations with Government representatives.
A framework agreement was developed to recognise rights to compensation, cultural heritage and other native title rights under the Native Title Act 1993 (Cth).
The NTO is successfully meeting legislative requirements for processing Future Act notices.
The NTO developed a framework agreement requiring proponents to consider native title implications of proposed projects at an early stage in the process. The agreement included arrangements for compensation and economic benefits for Traditional Owners.
COAG Target 6 – Halve the gap in employment outcomes between Indigenous and non-Indigenous Australian's within a decade.
COAG Target 1 – Close the life expectancy gap within a generation.

Short-term benefit description
Proponents more aware and educated.

Benefit target Progress COAG target
Legislative requirements met for Future Acts (including timing and process) from 1 July 2012 onwards. All legislative requirements were met. COAG Target 6 – Halve the gap in employment outcomes between Indigenous and non-Indigenous Australian's within a decade.

Support Native Title activities, including determination of claims and provision of legal advice and support

Number of Native Title Determinations in the Torres Strait

The Native Title Office (NTO) advocates for and assists Traditional Owners and Prescribed Bodies Corporate with land and sea claims. Following the judgement by Justice Finn on 2 July 2010, a Native Title determination for the Torres Strait Regional Sea Claim was made on 23 August 2010. The determination was appealed by both the Australian Government and the Queensland Government. The NTO funded and provided legal representation for the claimant's appeal, with arguments heard between 16 and 18 May 2011. On 14 March 2012, the full bench of the Federal Court handed down judgement upholding the Australian Governments' appeal and rejecting the claimant's appeal. The NTO sought special leave to appeal this decision in the High Court of Australia; leave was granted on 5 October 2012, and the appeal was heard by the High Court of Australia on 12 February 2013. The court will hand down its decision in August 2013.

Short-term benefit description

Increased legal recognition and enforcement of native title rights.

Benefit target Progress COAG target
One regional Sea Claim resolved. The Regional Sea Claim appeal was heard in the High Court of Australia on 12 February 2013 after a special leave application was granted. Decision is expected in 2013. COAG Target 1 – Close the life expectancy gap within a generation.
Two remaining land claims and Regional Sea Claim Part B progressed by June 2014. The Native Title Office (NTO) has progressed the Kulkalgal number two (Zuizin) claim and is waiting for a response from the Queensland Government.
The Warral and Ului matter has been adjourned pending the resolution of the Regional Sea Claim Part A appeal in the High Court.
Regional Sea Claim Part B has been adjourned pending the resolution of the Regional Sea Claim Part A appeal in the High Court.
The NTO is currently assisting with a possible Naghir Native title claim, with agreement between the parties regarding further anthropological research.
The NTO is currently researching a possible compensation claim for past extinguishment of native title in the region.

Indigenous land use agreements and future acts

Number of Indigenous Land Use Agreements

The Native Title Office (NTO) assists Prescribed Bodies Corporate and Traditional Owners with support, legal advice, and advocacy for Indigenous land use agreements (ILUAs) and Future Act notifications. The NTO has been involved in negotiations with all levels of government and stakeholders to formulate standard freehold land valuations for the Torres Strait region. It is the NTO's objective to adopt a template ILUA, with the agreement of all parties, in the near future.

Short-term benefit description

Empower native title holders through community-negotiated agreements (providing training and other community benefits, validation of works, compensation responsibility and control).

Benefit target Progress COAG target
Reduction in outstanding Indigenous Land Use Agreement (ILUA) matters as at July 2012, by June 2013. Seven ILUAs were negotiated, finalised and / or executed.
60 Future Act notifications were processed.
Prescribed Body Corporate (PBC) and Community consultations have been undertaken to progress the Major Infrastructure And Housing ILUAs.
The Native Title Office assisted native title holders to negotiate compensation and other benefits for a number of ILUAs.
COAG Target 1 – Close the life expectancy gap within a generation.
COAG Target 6 – Halve the gap in employment outcomes between Indigenous and non-Indigenous Australian's within a decade.

The benefit achievements above are fully aligned to the Torres Strait Development Plan benefit targets.