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Annual Report 2008-09 Output 1.6

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Native title

Summary

The Department provides legal and policy advice on native title to the Attorney-General and the Australian Government. It also assists the Attorney-General administer the Native Title Act 1993, except those parts for which the Minister for Families, Housing, Community Services and Indigenous Affairs is responsible. In achieving Output 1.6, the Department continued managing the Commonwealth’s participation in native title matters, by working with other government departments and agencies to ensure their compliance with the Native Title Act 1993, and by effectively managing stakeholder consultation.

In 2008–09, the Department ensured it met these responsibilities in a way consistent with the Australian Government’s Social Inclusion agenda and the National Indigenous Reform Agenda, agreed by COAG. In particular, we have worked to ensure that policy development and advice provided contributed to achieving COAG’s Closing the Gap targets, with a focus on the Indigenous Economic Participation and Governance and Leadership Building Blocks.

Major achievements

Native title system coordination and consultation

The Department continued to liaise regularly and strengthen relationships with stakeholders in order to maintain an equitable and just native title system. This was achieved by providing policy advice, coordination and secretariat support to diverse forums, ranging from whole-of-government committees on Indigenous affairs, to cross-jurisdictional and system-wide working groups.

Native Title Ministers’ Meeting

The Department provides advice and support to the Attorney-General for his participation in the Native Title Ministers’ Meeting. The first meeting under the Rudd Government was held in July 2008. At this meeting ministers committed to taking a more flexible view of the ways to achieve the broad range of practical outcomes possible from native title processes, achieving real outcomes for Indigenous people and removing barriers to investment and infrastructure.

Joint Working Group on Indigenous Land Settlements

At the 2008 Native Title Ministers’ Meeting, ministers established the Joint Working Group on Indigenous Land Settlements, comprising representative officers from the Commonwealth, State and Territory Governments. The Joint Working Group met five times in 2008–09 during which time it was developing a number of innovative policy options for progressing broader and regional native title settlements. The Working Group is due to report back to the Native Title Ministers’ Meeting in August 2009.

Native Title Consultative Forum

The Department chairs and provides secretariat support for the Native Title Consultative Forum that meets three times a year. The Forum comprises representatives of several Australian Government agencies, State, Territory and local Governments, the Federal Court, the National Native Title Tribunal, native title representative bodies, the Human Rights and Equal Opportunity Commission, and pastoralist, mining, fishing and petroleum industries.

Native Title Coordination Committee

The Department chairs and provides secretariat support for the Native Title Coordination Committee. This committee consists of representatives from the Attorney-General’s Department; the Department of Families, Housing, Community Services and Indigenous Affairs; the Federal Court; and the National Native Title Tribunal. The committee monitors the performance of the native title system and advises the Government on improving its operation.

Broader engagement

The Department supported and participated in a number of forums to increase stakeholder dialogue, research and professional development within the native title system. For example, the Department provided financial assistance to and participated in the annual Australian Institute for Aboriginal and Torres Strait Islander Studies Native Title Conference.

The Department provided funding, through the Government’s Grant to Australian Organisations Program, to a project aimed at building capacity for anthropologists working in native title. Led by Professor David Trigger at the University of Queensland, the project delivered professional development workshops and resource materials for anthropologists and allied professionals working in native title, and a forum for experienced anthropologists to share approaches and theories relevant to resolving native title claims.

Economic development

We are actively engaged in policy development initiatives to enable Indigenous people to leverage economic development opportunities from their native title rights and interests. Those initiatives included:

  • participating in a cross-portfolio steering committee developing an Indigenous economic development strategy to implement the Government’s Closing the Gap agenda
  • engaging with a Senior Executive Service taskforce, in particular with the Economic Participation and Welfare Reform subgroup, contributing to the COAG Working Group on Indigenous Reform
  • supporting the Secretary’s participation in the Secretaries’ Group on Indigenous Affairs with respect to native title issues, and
  • participating in an interdepartmental committee on the Home Ownership on Indigenous Land program.

Native title reforms

Native Title Amendment Bill 2009

The Department is implementing the Government’s objective for the native title system of achieving more negotiated settlements of native title claims.

In October 2008, the Attorney-General announced institutional reform of the native title system, giving the Federal Court the central role in managing all native title claims, including deciding who mediates a claim.

On 23 December 2008, the Attorney-General released a discussion paper on other proposed amendments to the Native Title Act 1993.

Both sets of amendments are contained in the Native Title Amendment Bill 2009, passed by the House of Representatives on 14 May 2009. The other amendments in the Bill aim to improve the native title system by enabling the court to make determinations covering matters beyond native title, and to rely on a statement of facts agreed between parties (at least the claimant and primary government respondent). The Bill would also make it easier for the court to hear evidence about traditional laws and customs by allowing the recent changes in evidence laws to apply to hearings that commenced before the changes to the evidence laws. The Bill will amend the Native Title Representative Body provisions of the Native Title Act 1993. The Department developed the Native Title Representative Body amendments with the Department of Families, Housing, Community Services and Indigenous Affairs.

Resolution of native title

The Department continued to implement the Government policy that all parties, including the Commonwealth, should take a less technical and more collaborative approach to native title.

The Commonwealth is participating in negotiations with the Cape York Land Council and the Queensland Government to resolve native title, tenure and related issues on a regional basis in Cape York. The Kowanyama claim is the first to be progressed under this process and the parties are working constructively to settle a range of land related issues in that area.

Consistent with the Government’s flexible approach to resolving native title claims, the Commonwealth was a party during the year to three native title consent determinations—Thalanyji, Nyangumarta and Kuuku Ya’u.

The Thalanyji consent determination, made on 18 September 2008 on country at Onslow in the Pilbara region of Western Australia, recognised the Thalanyji peoples’ non-exclusive native title rights.

The Nyangumarta consent determination, made on 11 June 2009 on country at Nyiyamarri Pukurl in Western Australia, includes recognition of the Nyangumarta peoples’ exclusive rights over 86 per cent of the approximately 32,000 square kilometre determination area in the Pilbara region of Western Australia.

The Kuuku Ya’u consent determination, made on 25 June 2009 on country at Portland Roads in far north Queensland, represents the first native title claim over a significant area of sea to be determined by agreement. The determination recognises the Kuuku Ya’u peoples’ non-exclusive rights over 1,970 square kilometres of sea east of Portland Roads. The Government’s decision to recognise native title over modern territorial sea helped resolve the claim through agreement rather than litigation.

Litigation

The Attorney-General appeared as contradictor in the Full Federal Court hearing of an appeal against a decision not to register the Gudjala No 2 native title claim. Registration provides claimants, in the period before resolution of the claim, with statutory procedural rights such as the right to negotiate. In August 2008 the Full Court unanimously allowed the appeal and remitted the matter back to the primary judge for reconsideration in accordance with the Full Court’s judgment.

The Bardi Jawi native title appeal, heard in February 2007, remains reserved. During the year, parties to the appeal, including the Commonwealth, provided further written submissions addressing court decisions delivered since the hearing.

The Torres Strait Regional Sea Claim trial commenced on 29 September 2008 and is expected to conclude by 31 July 2009. The Federal Court (Justice Finn) has heard 28 days of evidence in Brisbane, Cairns and Poruma Island in the Torres Strait.

The Federal Court ended National Native Title Tribunal convened mediation in the Jabiru native title claim in April 2009 and set the matter down for trial commencing on 30 November 2009. Parties are seeking to narrow the issues in dispute before the hearing.

Future acts and agreement making

The Department provided policy advice to the Attorney-General on development of a discussion paper that investigated proposals to make better use of payments to Indigenous communities under mining and infrastructure agreements. The discussion paper generated ideas and discussion on how the benefits negotiated through native title related agreements could deliver social and economic wealth for generations of Indigenous people. In January and February 2009, the Department, in conjunction with the Department of Families, Housing, Community Services and Indigenous Affairs, held nationwide information sessions on the proposals canvassed in the paper.

We provided policy advice to the Attorney-General and the Great Barrier Reef Marine Park Authority on the Kuuku Ya’u Marine Park Indigenous Land Use Agreement which formed part of the Kuuku Ya’u consent determination.

The Department provided legal and policy advice on a range of Australian Government projects including negotiations for the proposed Liquid Natural Gas Hub in the Kimberley region and the Carbon Pollution Reduction Scheme. We also continued to advise on acquiring land for the proposed Australian Square Kilometre Array Pathfinder Telescope and a range of land-use proposals by the Department of Defence.

Outlook

The Government provided an additional $50.1 million over four years in the 2009–10 Federal Budget to build a more efficient native title system. Approximately $4.3 million in additional funding has been allocated to the Attorney-General’s portfolio to enable the Department to develop and implement a range of measures. These measures include improved access to land tenure information, promotion of broader and more flexible native title settlement packages, and strengthening partnerships with State and Territory Governments to facilitate settlement of claims through negotiated agreements.

These reforms will give rise to expectations of a faster, more efficient resolution of native title claims process. The Department will need to meet the challenge of keeping pace with the new system, including improving our management of Commonwealth involvement in native title claims. The Department will continue to work closely with the Federal Court and the National Native Title Tribunal to monitor implementation of the reforms.

The Department will continue to monitor the native title system and assist other government agencies with their obligations under the Native Title Act 1993. It will also continue to provide advice to the Government on possible improvements to the Native Title Act 1993, develop policy on native title and economic development opportunities for Indigenous people, and maintain and build on stakeholder relationships.

Performance indicators

Table 10: Performance indicators, Output 1.6—Native title

Key performance indicators 2008–09 target Result

Advice provided within agreed timeframes and to the satisfaction of ministers and government departments and agencies

Ministers and key agencies express a high degree of satisfaction as to the quality, effectiveness and timeliness of advice as measured by periodic feedback

Achieved

Minister’s office has indicated that the Department has been very responsive in meeting minister’s requirements regarding advice and development of legislation on native title matters. No negative feedback from agencies.

Bilateral and multilateral stakeholder relationships developed and maintained

100% compliance and satisfaction

Achieved

Productive working relationships with all relevant stakeholders have been developed and maintained.


Our people

Negotiating the Cultana Indigenous Land Use Agreement

Stephen Philip, Future Acts and System Coordination Branch, Social Inclusion Division

Stephen Philip, Future Acts and System
Coordination Branch, Social Inclusion Division
.

An agreement that would provide practical benefits for all parties

Expansion of the Australian Army’s Cultana training area on the upper Eyre Peninsula in South Australia will accommodate large-scale military exercises.

The Australian Army training area is located within the boundaries of a registered native title claim and any expansion therefore involves negotiation with the holders of native title.

The Native Title Act 1993 allows for agreements to be made between Indigenous native title holders or claimants and other interested parties about how land and waters in the area covered by the agreement will be used and managed.

Stephen Philip, Senior Legal Officer, Future Acts and System Coordination Branch, has been working with stakeholders to negotiate an agreement that would provide practical benefits for all parties.

‘The project has been extremely interesting, and has involved working closely with the Department of Defence, the native title claimants, the Australian Government Solicitor, and the South Australian Attorney-General’s Department.’

‘It’s been challenging and rewarding to be involved in negotiating a major Indigenous land use agreement that has the potential to achieve an important outcome and will benefit all parties involved,’ Stephen said.

The Department is committed to resolving native title issues through negotiation rather than costly and time-consuming litigation.

‘We aim to ensure the project has minimal impact on the continued existence of native title rights, while enabling the Department of Defence to achieve its objectives. The negotiations are continuing,’ explained Stephen.

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