Native Title

Program Overview: Native Title

Objective

Description

Overview of the TSRA as a Native Title Representative Body

Report on Performance

Support to Prescribed Bodies Corporate

Request a Review of a Native Title Representative Body Decision

Facilitation and Assistance Policy

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 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 the 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 1993 (Cth) in 1995. Under the 1998 amendments to the Native Title Act 1993 (Cth), each representative body was required to re-apply for recognition. Following an independent examination, the 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 the TSRA to reapply for recognition and subsequently advised that the 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 develops an Operational Plan for each annual 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 1993 (Cth); and
2. Operate in accordance with relevant legislation, including the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) , the Native Title Act 1993 (Cth) (NTA) and the Public Governance Performance and Accountability Act 2013 (PGPA Act).

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 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 those parts of the Regional Sea Claim that remain to be determined (Part B) pending finalisation of those appeal points that arose out of the making of the determination for Part A. 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. The NTO has made major efforts to finalise a regional template ILUA for native title and cultural heritage act validation for all public works for the outer islands of the region. Negotiation commitments to the template ILUA have been given by major stakeholders including the State of Queensland.

It is anticipated that by the end of 2014 all native title claims over land in the Torres Strait will be finalised. The Part A of the Regional Sea Claim was determined in August 2010. Various appeal points arose however out of the making of the determination. In June 2012 a Special Leave Application (the “SLA”) was filed in the High Court of Australia.  On the 5 October 2012 the High Court granted the SLA, which mean that the points of appeal will be heard by the High Court, which is likely to be sometime early in 2013.

For more information on Native Title, Indigenous Land Use Agreements, Native Title Representative Bodies and Prescribed Bodies Corporate, click here.

SUPPORT TO PRESCRIBED BODIES CORPORATE

REQUEST A REVIEW OF  A NATIVE TITLE REPRESENTATIVE BODY DECISION

Decisions made by the TSRA with regard to the provision of facilitation and assistance under s 203BB of the Native Title Act 1993 (Cth) are subject to review.

If a Native Title holder seeks a review of a decision they should, in the first instance, write to the TSRA's Chief Executive Officer (CEO) setting out their reasons for requesting the review and stating the alternate outcome they are seeking.  The request should be addressed to:

• Chief Executive Officer
  Torres Strait Regional Authority
  PO Box 261
  Thursday Island QLD 4875

• or may be sent by email to info@tsra.gov.au

The CEO may then initiate an Internal Review of the decision in accordance with s 203BI of the Native Title Act 1993 (Cth).  The Internal Review process can be located here.

Subsequent to the Internal Review, if the Native Title holder is not satisfied with the outcome from the Internal Review they may request an External Review of the decision by writing to the Secretary of the Department of the Prime Minster and Cabinet.

The Secretary may initiate an External Review in accordance with s 203FB of the Native Title Act 1993 (Cth) .  The External Review process can be located here.

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