Native Title

Program Overview: Native Title

Objective
To be recognised as an organisation providing high quality and culturally appropriate professional services to Native Title Holders and claimants through consulting with and effectively representing Indigenous inhabitants in the Torres Strait region in the performance of our functions under the Native Title Act 1993.

Description
This component facilitates the securing of legal recognition of native title to land and waters in the Torres Strait and providing assistance for the legal protection of native title rights in relation to matters affecting Torres Strait land and waters.

OVERVIEW OF TSRA AS A NATIVE TITLE REPRESENTATIVE BODY
This section refers to the TSRA’s functions as a Native Title Representative Body (NTRB) under the Native Title Act 1993. Representative bodies are primarily responsible for servicing the needs of their constituents effectively and equitably.

Constituents are those persons who hold or may hold native title in their area. On that basis, one of the guiding principles for the operations of representative bodies is their responsibility to act in the best interests of their constituents.

Legislation Governing TSRA’s Native Title Functions
The TSRA was first appointed a Native Title Representative Body under the Native Title Act 1993 in 1995. Under the 1998 amendments to the Native Title Act 1993, each representative body was required to re-apply for recognition. Following an independent examination, TSRA was recognised by the then Minister for Aboriginal and Torres Strait Islander Affairs as the Native Title Representative Body for the Torres Strait region. The Native Title Office of TSRA performs the legislative functions as required by the Native Title Act 1993.

Legislative Functions of the TSRA in its NTRB capacity
As a NTRB, the TSRA fulfils specific functions under the Native Title Act 1993. These include:
- facilitating the researching, preparation and making of claims by groups of Torres Strait Islanders or Aboriginal Peoples, 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; and
- assisting groups by representing them, if requested to do so, in negotiations and proceedings relating to the doing of future acts affecting native title, the provision of compensation in relation to such acts and any other matter relevant to the operation of the Act.

The legislative functions of Native Title Representative Bodies is set out in section 203B of the Native Title Act 1993 which states as follows:
(1) A representative body has the following functions:
(a) The facilitation and assistance functions referred to in section 203BB;
(b) The certification functions referred to in section 203BE;
(c) The dispute resolution functions referred to in section 203BF;
(d) The notification functions referred to in section 203BG;
(e) The agreement making functions referred to in section 203BH;
(f) The internal review functions referred to in section 203BI;
(g) The functions referred to in section 203BJ and such other functions as are
conferred on representative bodies by this Act.

A representative body may only perform its facilitation and assistance functions if requested to do so.

The TSRA was required to re-apply for NTRB status in 2006-2007. The Minister for Indigenous Affairs has since recognised the TSRA as the NTRB for the Torres Strait region for a further six years.

Land Claims
There are three claims over land remaining in the Torres Strait region and one claim that is outside the region. The four claims are being progressed through the Court and mediation process with the aim of resolving them with the consent of the parties. One claim will be discontinued upon the registration of an ILUA, one claim has been discontinued and a fresh claim simultaneously filed over the same area and two claims are the subject of mediation between Indigenous parties.

Torres Strait Regional Sea Claim
The Sea Claim was filed in the Federal Court in November 2001 and is brought on behalf of the Native Title Holders of Badu, Dauan, Erub, Ugar, Masig, Warraber, Poruma, Naghi, Iama, Mabuiag, Mer, Boigu, Mua and Saibai and covers approximately 42,000 square kilometres of sea in the Torres Strait region. Both the Federal Court and the TSRA have identified the Regional Sea Claim as a priority claim for 2006-2007.

In 2005 the Sea Claim was substantially amended and remains on the Register of Native Title Claims. The notification process was finalised in the 2002-2003 financial year. Mediation with the State of Queensland, the Commonwealth and other respondent parties is continuing. The Sea Claim has raised a number of complex legal issues and factual matters that will require further negotiation with the State and the Commonwealth. The Federal Court held an early evidence hearing in the Torres Strait from 27 September to 12 October 2007.

The purpose of the early evidence hearing is to hear and preserve the evidence of elders who can give evidence in support of the claim. The anthropological research is continuing and given the nature of the claim the anthropological research is more complex than initially anticipated.

The Sea Claim remains in mediation and the Native Title Office will put every effort into negotiating a settled outcome. In the event that the claim cannot be settled by consent it is likely that the claim will proceed to trial.