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 assisting and representing Traditional Owners in the Torres Strait region in the performance of our functions under the Native Title Act 1993 (Cth).

Description
The Native Title Office facilitates the securing of legal recognition of native title to land and waters in the Torres Strait, providing assistance for protection of native title rights in relation to all matters affecting Torres Strait land and waters and to assist Prescribed Bodies Corporate (PBCs) and Traditional Owners with support and capacity initiatives.

OVERVIEW OF THE TSRA AS A NATIVE TITLE REPRESENTATIVE BODY
This output refers to the TSRA’s functions as a Native Title Representative Body (NTRB) under the Native Title Act 1993 (Cth). NTRBs are primarily responsible for providing native title and related assistance to 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 NTRBs is their responsibility to act in the best interests of their constituents.

Legislation Governing TSRA’s Native Title Functions
The Torres Strait Regional Authority is recognised as the NTRB for the Torres Strait region. The TSRA was first appointed a NTRB under the Native Title Act (Cth) 1993 in 1995. Under the 1998 amendments to the Native Title Act (Cth) 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 NTRB for the Torres Strait region. In 2007 the Commonwealth announced reforms to the native title system including the recognition of all NTRBs. The then Minister invited TSRA to reapply for recognition and subsequently advised that TSRA would be recognised as the NTRB for the Torres Strait region for a further six year period.

The performance of the NTO functions are also consistent with the overall TSRA operational planning framework developed in response to the then Minister’s stated expectations of the TSRA. The NTO developed an Operational Plan for the 2007-2008 reporting period which included the strategies required to progress each of the key output areas; the key activities proposed to undertake the strategies; proposed performance measures; priorities, start and end dates; allocation of staff resources for each project and estimates of activity costs.
These outputs and outcomes are consistent with the then Minister’s expectation that:
(1) The TSRA will fulfil its functions as the NTRB for the region, as defined under the Native Title Act (Cwth) 1993; and
(2) Operate in accordance with relevant legislation, including the Aboriginal and Torres Strait Islander Act 2005, the Native Title Act 1993 and the Financial Management and Accountability Act 1997.

Legislative Functions of the TSRA in its NTRB Capacity
As a NTRB, the TSRA through the Native Title Office (NTO) fulfils specific functions under the Native Title Act 1993 (Cth). These include:
• Facilitating the research, 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 in negotiations if requested to do so and in proceedings relating to actions affecting native title, the provision of compensation in relation to such actions and any other matter relevant to the operation of the Act
• Facilitating support and assistance to PBCs.

The legislative functions of NTRBs are set out in section 203B of the Native Title Act 1993 (Cth) which states as follows:
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;
(7) 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.

REPORT ON PERFORMANCE
The NTO has significant experience in providing legal representation and related services to native title claimants and holders in the region. The NTO has provided legal advice, representation and otherwise assisted native title claimants and holders in various proceedings under the Native Title Act 1993 (Cth) and in relation to future acts, Indigenous Land Use Agreements (ILUAs) and other matters relating to native title. The TSRA has provided legal representation and assistance to its constituents to enable them to obtain 19 of the 26 determinations of native title that have been made to date over land and waters in the Torres Strait Region, 25 of which have been obtained by consent. The TSRA is currently providing legal representation and assistance to Torres Strait Islanders in respect of the four remaining claimant applications in the Torres Strait region. Three claims are over a number of uninhabited islands and a combined Torres Strait Regional Sea Claim. The TSRA anticipates that the majority of the remaining land claim applications will be resolved through consent determinations of native title.

There are presently 34 ILUAs that have been registered on the Register of ILUAs in relation to land and waters in the Torres Strait region. Twenty five of these are Area Agreements and the remaining nine are Body Corporate Agreements. The vast majority of these ILUAs were entered into by native title claimants to facilitate the making of consent determinations of native title. The principal functions of the NTO will focus on finalising the three remaining land claims, progressing the Torres Strait Regional Sea Claim, and working with PBCs facilitating capacity building and the provision of support. While resolving the remaining land claims and progressing the Regional Sea Claim remain priority matters, agreement making functions and assisting PBCs and Native Title Holders manage native title land also remain a key focus for the NTO as communities and PBCs come to terms with the recognition of native title over their communities and their obligations and responsibilities under the Native Title Act 1993 (Cth), associated regulations and relevant State and Commonwealth legislation. In light of the large number of determinations and the relatively large number of PBCs, the NTO will continue in its efforts towards developing capacity building and the provision of ongoing support for PBCs.

It is anticipated that by the end of 2010 all native title claims over land in the Torres Strait will be finalised. At this point, it is uncertain as to when the Regional Sea Claim will be finalised, however it is anticipated that the Federal Court will make a determination by the end of 2010. A mediated determination of the Sea Claim will largely depend on the approach of the Government as well as the availability of adequate levels of funding and resources.