Native Title

Regional Goal

Effective and transparent self-government with strong leadership.

Programme 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.

Programme Objectives

This programme 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 registered Native Title Prescribed Bodies Corporate
• involve Indigenous 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.

Programme Deliverables

• Provide legal, policy and advocacy support for Prescribed Bodies Corporate.
• 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 and provide legal advice and support in relation to Future Acts.

Programme Expenditure

Table 2-7 Native Title Programme Expenditure 2013 - 2014 (unaudited)

Torres Strait Development Plan Outcomes

• Strong, supported and respected Ailan Kastom.
• All native title claims successfully determined.
• Autonomous, active and self-sustaining Prescribed Bodies Corporate.

Statistical Data

Table 2-8 Native Title Programme Performance Statistics (unaudited)

Delivery of Benefits: Torres Strait Development Plan

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

Support native title activities, including determination of claims and provision of legal advice and support

The number of native title determinations in the Torres Strait.

There are 22 native title determinations in the Torres Strait. This is an increase of two from the 2012 - 2013 Annual Report.

The NTO advocates for and assists Traditional Owners and PBCs with land and sea claims. A native title determination was made on 23 August 2010, following the judgement by Justice Finn on 2 July 2010, for the Torres Strait Regional Sea Claim Part A. The determination was appealed by 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. The full bench of the Federal Court handed down judgment on 14 March 2012 upholding the Australian Government's 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 final decision was handed down on 7 August 2013, finding in favour of the claimant's appeal and upholding Justice Finn's original decision that the native title rights and interests in the sea claim area included the right to use marine resources for any purpose, including the right to commercial use. Following on from this decision, with help from the NTO, Malu Lamar RNTBC was set up to manage the native title rights and interests in Part A of the sea claim by order of Justice Andrew Greenwood on 26 June 2014.

On 19 June 2014, Justice Greenwood accepted that Zuizin had been part of the traditional estate of the Kulkalgal people since time immemorial and made a consent determination of exclusive native title under the Native Title Act 1993 (Cth). This determination is outlined in the Native Title case study at the end of this section.

Indigenous Land Use Agreements and Future Acts

Number of Indigenous Land Use Agreements

The NTO assists PBCs and Traditional Owners with support, legal advice, and advocacy for 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.

Case Study: Zuizin Native Title Consent Determination

Project description

The Torres Strait Regional Authority (TSRA) in its role as the Native Title Representative Body for the region has, through the Native Title Office (NTO), provided support to the Kulkalgal people to lodge a native title determination application for Zuizin (Half-way Island) in the Torres Strait.

Zuizin, which is an uninhabited Island about 70 nautical miles north-east of Thursday Island, lies at 10 degrees 06' South, 143 degrees 19' East and covers about 161.9 hectares. The first recorded European contact with Zuizin was when Captain Matthew Flinders, who was in command of HMS Investigator, landed on the island on 30 October 1802 and found evidence of human occupation.

The native title claim was lodged in the Federal Court of Australia in 2007 after an earlier claim had been withdrawn. The NTO engaged Dr Garrick Hitchcock, an anthropologist, to prepare a connection report outlining the Kulkalgal people's connection to Zuizin, along with their traditional laws and customs. During this process, Dr Hitchcock interviewed many senior Kulkalgal Elders and obtained from them evidence of Kulkalgal traditional laws and customs and how Zuizin was part of the traditional estate of the Kulkalgal people.

After the successful High Court appeal in Part A of the Torres Strait Regional Sea Claim on 7 August 2013, the NTO entered into negotiations with the State of Queensland and the Torres Shire Council, which finally led to agreement on the terms of the consent determination.

Outcome

On 19 June 2014, at a special sitting of the Federal Court of Australia on Thursday Island, Justice Andrew Greenwood, after reviewing the evidence and submissions of the applicant, accepted that Zuizin had been part of the traditional estate of the Kulkalgal people since time immemorial and made a consent determination of exclusive native title under the Native Title Act 1993 (Cth) over Zuizin. He appointed the Kulkalgal Registered Native Title Body Corporate to hold the native title rights and interests in trust on behalf of the Kulkalgal people.

Native Title Representative Body Reporting

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).

All PBCs in the region are invited to apply for financial assistance to offset the administrative costs associated with their native title role.

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 native title holders are 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 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 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 in section 203B:

(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 function 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.

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 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 63-71 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 in the Infrastructure and Social Housing Indigenous Land Use Agreement (ILUA). This ILUA is in its 19th draft and the TSRA expects the issues to be resolved in 2014 - 2015.

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 2013 - 2014 financial year, the NTO received $2.959 million for operations. The financial performance of the TSRA in its NTRB capacity is outlined in Table 2-9.

Table 2-9 NTRB Financial Performance (unaudited)

Performance against Budget

In performing its NTRB role, the TSRA has operated within the planned budget for 2013 - 2014.

There have been no significant changes in funding from 2012 - 2013 or changes to the 2013 - 2014 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 17 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 2-10 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 2-10 Equal Employment Opportunity Groups, Native Title Office (unaudited)

NTO consultancies for the 2013 - 2014 reporting period

The NTO uses external legal counsel and external consultants to meet its strategic objectives. Table 2-11 shows the consultants engaged during the reporting period.

Table 2-11 Consultants engaged by the NTO 2013 - 2014 (unaudited)

External scrutiny

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

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.

Judicial decisions

In 2010, the Federal Court of Australia handed down the Torres Strait Regional Sea Claim judgment. Pursuant to the judgment, a determination was made by Justice Finn 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, and the decision upholding the appeal was handed down on 7 August 2013. This decision upheld the original decision of Justice Finn, which recognised the native title right to use marine resources for any purpose, including commercially.

A consent determination of native title was made over Zuizin Island on 19 June 2014 by Justice Greenwood of the Federal Court of Australia.

Compliance index

The NTRB compliance statements are included in the TSRA compliance statements in Section 7.