1
Native Title Review Team
PO Box N250 Grosvenor Place
Sydney
NSW 1220
Australia
23 September 2013
Dear Native Title Review Team
Re: Review of the Roles and Functions of Native Title Organisations (June 2013)
The Mandingalbay Yidinji Aboriginal Corporation RNTBC ('MYAC') provides the following
submission in relation to the Department of Families, Housing, Community Services and
Indigenous Affairs' ('FaHCSIA') Review of the Roles and Functions of Native Title
Organisations ('Review').
MYAC provides strong and committed leadership on many issues relating to native title and
land management in Queensland. MYAC represents a positive post-determination model of
an autonomous Prescribed Body Corporate ('PBC')/Registered Native Title Body Corporate
('RNTBC') with little to no Native Title Representative Body ('NTRB') support or future act
related revenue.
Consultation Process for Review:
It is the MYAC's position that any consultation regarding PBCs/RNTBCs and their
interaction, if any, with NTRBs or Native Title Service Providers ('NTSPs') should involve
extensive engagement with traditional owners.
The Reference Group established to provide comment and strategic direction to the Review
has only one (1) PBC/RNTBC representative while on the other hand there are six (6)
NTRB/NTSP representatives. The skewing of representatives towards NTRBs/NTSPs is
inappropriate in light of the Reviews mandate to:
2
address policy issues relevant to the roles and functions of NTRB/NTSPs in
continuing to meet the evolving needs of the system particularly the needs of native
title holders after determinations1 (emphasis added).
Article 18 of the Declaration of Rights of Indigenous Peoples (‘the Declaration’) adopted by
the General Assembly in 2007 and formally supported by the Australian Government in 2009
sets out the right of Indigenous peoples to participate in decisions that affect them.
The Aboriginal and Torres Strait Islander Social Justice Commissioner Mr. Mick Gooda
notes in his 2012 Social Justice Report:
Three key elements are involved in ensuring our effective participation in decisions
that affect us. They are contained in Article 19 of the Declaration:
• Duty to consult – Governments (or States) have a duty to consult with
Indigenous peoples ‘whenever a State decision may affect indigenous
peoples in ways not felt by others in society’, even if their rights have not
been recognised in domestic law.
• Good faith – Governments must consult and engage with us in good faith
which ensures that decision-making processes are fair, cooperative and
consistent with our cultural practices. Consultations should be ‘carried out in
a climate of mutual trust and transparency’; this includes providing sufficient
time for Indigenous peoples to engage in their own decision-making process,
and participate in a manner consistent with their cultural and social practices;
and the objective of consultations should be to achieve agreement or
consensus.
•Free, prior and informed consent – The principles of free, prior and informed
consent requires that third parties in decision-making processes affecting
Indigenous peoples enter into equal and respectful relationships with us. This
principle applies not only to administrative acts and decisions, but also to the
legislative process itself. Communities can also apply this principle in their
local governance arrangements. There should be no coercion or manipulation
used to gain consent. The principle is not a right of veto, but if consent is
sought in good faith, it allows Indigenous peoples to say no to a proposal.
1
Discussion Paper p. 1.
3
Together, these aspects of the right to participate in decision-making mean that
Indigenous peoples must be recognised and treated as substantive stakeholders in
the development, design, implementation, monitoring and evaluation of all policies
and legislation that impact on our well-being2.
We note that Deloitte Access Economics has been contracted to undertake the review on
behalf of FaHCSIA. We also note Deloitte's comments that:
to inform the Review’s findings, extensive public engagement is being undertaken or
primarily based on submissions made in response to a public discussion paper. A
number of targeted consultations will also be undertaken3.
The North Queensland Land Council, the representative body within our region, has assisted
to our knowledge in the facilitation of two (2) of the above mentioned 'targeted consultations'.
It is with much regret that we note not all PBCs/RNTBCs within their representative body
region were extended an invitation to attend these meetings.
It is our position that the facilitation of these meetings by the NTRB/NTSP is inappropriate in
that PBCs/RNTBCs may be unwilling to provide a true account of the issues raised within
the Review for fear of future funding restrictions.
MYAC and many other PBCs/RNTBC's only avenue for providing a response to the Review
is through written submissions.
As noted in the discussion paper itself, many
PBCs/RNTBCs are inadequately resourced to provide a response to the Review.
Furthermore, the Review terms of reference and discussion paper are incredibly complex
documents which also negate PBCs/RNTBCs ability to provide a meaningful response.
MYAC by its own initiative convened a forum of traditional owner groups in Cairns to meet
with Deloitte and put forward their position with respect to the Review. MYAC also extended
an invitation to the North Queensland Land Council to attend and provide a short
presentation. The North Queensland Land Council did not provide a response or attend.
2
Social Justice Report 2012: pp.105-106.
URL:http://www.deloitteaccesseconomics.com.au/our+services/economic+analysis+and+policy/native+title/a
bout+the+review (9 July 2013).
3
4
It is our submission that the Government must extend the consultation period for the Review
allowing an effective participation process embracing the three key elements of the
Declaration and without the interference of NTRBs/NTSPs.
Role of NTRBs/NTSP's Post Determination:
We agree that the NTRBs/NTSPs mandate is 'focused on assisting native title holders to
achieve recognition of their native title through the claims process'4. Prior to determinations,
NTRBs/NTSPs act largely as the representatives of native title groups. However, following
formal recognition of native title rights the representative role transfers from the NTRB/NTSP
to the newly established PBC/RNTBC.
We agree that there is an increased demand from native title holders for support following
successful determinations. We also note that the Performance Funding Agreement with
FaHSCIA allows the use of NTRB/NTSP funding and 'in kind' resources at any time to
perform their statutory functions in relation to PBCs/RNTBCs. In reality however, support
from NTRBs/NTSPs is limited or non-existent.
It is our position that this increased demand for support from PBCs/RNTBCs does not
necessitate involvement from NTRBs/NTSPs in fact, quite the opposite, it is a demand for
increased resources which PBCs/RNTBCs can utilise in progression of their own native title
management priorities.
The model of autonomy sought by PBCs/RNTBCs is a key step forward in the Declaration.
As Commissioner Mick Gooda states:
Our governance over our traditional lands, territories and resources is framed by the
Declaration. For example:
• our right to self-determination and participation in decision-making that is
established in Article 32(1), which sets out our right to ‘determine and develop
priorities and strategies for the development or use of’ our lands, territories
and resources
• our right to free, prior and informed consent over projects on our lands,
territories and resources that is articulated in Article 32(2)
4
Discussion Paper p.1.
5
• our right to maintain and protect our cultural heritage on and traditional
knowledge about our lands, territories and resources that is expressed in
Article 31(1)
• our right to conserve and protect the environment of our lands, territories
and resources without discrimination that is acknowledged in Article 29(1).
The obligations of governments to support our governance over our lands, territories
and resources are also set out in the Declaration. These include the requirement to:
• recognise our right to self-determination (see Articles 3 and 4)
• recognise and protect our lands, territories and resources (see Article 26(3))
• in conjunction with us, establish a process to recognise and adjudicate our
rights pertaining to our traditionally owned and occupied lands, territories and
resources (see Article 27)
• seek our free, prior and informed consent for projects on our lands,
territories and resources (see Article 32(2))5.
This model of autonomy which would bring forth sustainable development in Aboriginal and
Torres Strait Islander communities requires a ‘new relationship between Aboriginal and
Torres Strait Islander peoples and government. This new relationship needs to be based on
power-sharing and recognition of the right of Aboriginal and Torres Strait Islander peoples to
govern our own lives’6.
Role of PBCs/RNTBCs Post Determination:
The native title management system post determination is established through a number of
legislative instruments including the Native Title Act 1993 (Cth), delegated legislation and the
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
In Western Australia v Ward 170 ALR 159, the Full Federal Court described the interaction in
the following terms:
The [Native Title (Prescribed Body Corporate)] Regulations establish a regime under
which decisions concerning the management of native title rights and interests by
the common law holders will be taken through the registered native title body
corporate. The registered
native title body corporate becomes the entity that
speaks for and makes decisions on matters concerning the native title in dealings
5
6
Native Title Report 2012: pp84-85.
Social Justice Report 2012: p.10.
6
with public authorities and members of the public other than the common law
holders themselves...The regime created by the interaction of the [Native Title Act],
the Regulations, and the Aboriginal Councils and Associations Act [now the
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)] establishes a
registered native title body corporate as the entity with which a public
authority
and members of the public are to deal in relation to the management and
administration of native title rights and interests7.
The Court's statement confirms the role of the PBC/RNTBC as the entity that 'speaks for' the
group, and makes native title related decisions8. In this way, the legislative framework allows
the relationships and functions in the post determination environment to be ‘underpinned by:
self-determination; participation in decision making including free prior and informed consent
and good faith; respect for and protection of culture; and non-discrimination equality’9.
After registration on the National Native Title Register as a RNTBC, the RNTBC is given
functions specified by the Native Title Act 1993 (Cth) ('NTA') and the delegated legislation10.
The core functions of RNTBCs are:

Managing the native title holders’ native title rights and interests;

Receiving future act notices, and advising native title holders about such notices;

Consulting with the native title holders about native title decisions;

Exercising procedural rights afforded to native title holders including commenting on,
objecting to and negotiating about proposed future acts;

Preparing submissions to the NNTT or other arbitral bodies about right to negotiate
matters;

Negotiating, implementing and monitoring native title agreements;

Considering
compensation
matters
and
bringing
native
title
compensation
applications in the Federal Court of Australia ('FCA');

Bringing revised or further native title determination application cases in the FCA;

Holding money (including payments received as compensation or otherwise relating
to the native title rights and interests) in trust;

Investing or otherwise applying money held in trust as directed by the native title
holders;
7
Native Title Corporations (2000) Mantziaris, C and Martin D p.91.
Native Title Corporations (2000) Mantziaris, C and Martin D p.91.
9
Social Justice Report 2012: p.10.
10
NTA ss193(2)(d)(iii), 57(1) and (3) and the PBC Regulations.
8
7

Preparing and maintaining documentation as evidence of consultation and consent;

Consulting and considering the views of the relevant native title representative body
(NTRB) or native title service provider (NTSP) for an area about proposed native title
decisions; and

Performing any other function relating to the native title rights and interests as
directed by the native title holders11.
These functions can be generalised as follows:
a) protect and manage determined native title in accordance with the wishes of the
broader native title holding group; and
b) ensure certainty for governments and other parties with an interest in accessing or
regulating native title lands and waters by providing a legal entity through which to
conduct business with the native title holders12.
We agree with the Discussion Paper's statement that:
In practice, PBCs/RNTBCs roles and functions are also affected by the legislation of
different jurisdictions, the expectations of their communities and the group’s capacity.
Consequently, the activities of PBCs/RNTBCs range from a limited focus on fulfilling
their basic statutory responsibilities, through to expansive roles exercising native title
rights for the economic and social benefit of the group by pursuing business
development and other opportunities. In some instances, this includes the need to
operate in complex commercial environments, requiring specialist knowledge on
topics such as corporate tax and administration13.
The importance of PBC/RTNBC self-determination:
One of the most fundamental human rights principles is self-determination. At its core, ‘selfdetermination is concerned with the fundamental right of people to shape their own lives’14.
Aboriginal and Torres Strait Islander people have used the term self-determination ‘to reflect
our social, economic, and political aspirations for control over our own lives and recognition
of our political status as the First Peoples of this country’15.
11
Discussion Paper p.15.
Discussion Paper p.14.
13
Discussion Paper p.14.
14
Social Justice Report 2012:p.101.
12
8
Indigenous peoples must in paving the way to self-determination develop structures that
incorporate both their cultural governance requirements as well as meeting the requirements
of non-Indigenous governance models16.
The National Centre for First Nations Governance in Canada explains:
Effective governance begins with the People. It is only through the People that we
can begin to shape the strategic vision that serves as the signpost for the work that
those communities and their organisations engage in. When the People have
shared information, collectively made decisions and determined the strategic vision,
their attention moves to where they sit – to the Land. Aboriginal title is an exclusive
interest in the Land and the right to choose how that Land can be used. It is then
through Laws and Jurisdictions that the rights of the Land are made clear. Following
from and consistent with the Laws and Jurisdictions is
the
emergence
of
Institutions and the identification of the Resources required to realise and to ensure
the continuity of effective governance17.
The Harvard Project on American Indian Economic Development concluded that:

Indigenous nations must have real decision-making power

there must be an institutional environment that encourages tribal citizens and others
to invest time, ideas, energy and money in the nation’s future

there has to be a fit between governing institutions and Indigenous political culture

institutions have to match Indigenous peoples ideas about how authority should be
organised and

exercised otherwise they would lack legitimacy with the people being governed18.
Drawing on the international research, Australian researchers have adapted their studies for
relevance in an Australian context. The Indigenous Community Governance Project argue
that in order to ‘manage their own affairs and achieve the things that matter to them...
processes, structures, traditions and rules must be set out so that they can:

15
determine the membership of their group
Social Justice Report 2012:p.104.
Social Justice Report 2012: p.90.
17
Social Justice Report 2012: p.93
18
Social Justice Report 2012: p.93.
16
9

decide who has authority, and over what

ensure that authority is exercised properly

enforce and implement their decisions

hold their decision makers accountable

steer their future direction

negotiate their rights and interests with others

establish the most effective and legitimate arrangements for getting those things
done’19.
Measuring the success of any governance needs to be done according to the goals and
priorities of the peoples being governed. This means the goals of Indigenous peoples are
what should be measured, not only those of governments20.
PBC/RTNBC Resource Needs:
The limited resources and scale of most PBCs/RNTBCs, leads to a lack of capacity to fulfil
many of the basic functions specified by the NTA and the delegated legislation21.
It is our position that PBCs/RNTBCs should be appropriately supported to undertake their
designated roles.
This does not necessitate NTRBs/NTSPs taking on these roles or
managing the entities functions or servicing their needs. It is our submission that alternate,
cost-effective models that promote traditional owner autonomy currently exist and provide a
framework for PBC/RNTBC resourcing models.
The Discussion Paper provides a table outlining possible NTRB/NTSP post-determination
services to PBCs/RNTBCs22. We support the statement within the Discussion Paper that:
many NTRBs/NTSPs lack the skill sets relevant to assisting native title holders in a
post-determination context. For instance, few NTRBs/NTSPs have the expertise
required to advise native title holders on the details relevant to understanding and
pursuing business development and other economic development activities23.
19
Social Justice Report 2012: pp.94-95.
Social Justice Report 2012: p.98.
21
NTA ss193(2)(d)(iii), 57(1) and (3) and the PBC Regulations.
22
Discussion Paper p.18.
23
Discussion Paper p.19.
20
10
Commissioner Mick Gooda has noted:
the evidence has repeatedly demonstrated that it is the entrenched failure of the
governance of governments that is the major impediment to Indigenous people
developing and sustaining our own governance arrangements....Essential services
are often delivered to Aboriginal and Torres Strait Islander people by non-indigenous
organisations,
either
government,
non-government
organisations
or
private
24
companies .
In this way, PBCs/RNTBCs have little to no say as to who will provide services to them and
how those services will be delivered. Traditional owner groups see the recognition of native
title as a fundamental step toward their self-determination and a point at which NTRB/NTSP
assistance can and should cease25.
It is our submission that the current position of governments insisting on retaining control
over Aboriginal and Torres Strait Islander people’s lives is not sustainable.
As
Commissioner Mick Gooda states:
The evidence shows that this approach is unlikely to yield the results government
and most importantly Aboriginal and Torres Strait Islander people want. What works
is real decision-making power in the hands of Aboriginal and Torres Strait Islander
peoples:
supporting them as they wrestle with the governmental design challenge,
expecting that they will make mistakes but recognising that over time, their
own resourcefulness is likely to come up with more effective solutions to
governance problems than outsiders are likely to do.
In 2004, the House of Representatives Committee concluded that that what is
required is a power shift to enable genuine partnerships and shared power
arrangements. Hunt argues the need for a power shift as follows:
Until greater power and resources are shifted into Indigenous hands—
whether to communities or
organisations
at
various
levels—whatever
individual capabilities there are will not be transformed into capacity …
24
25
Social Justice Report 2012: p.114.
Native Title Corporations (2000) Mantziaris, C and Martin Dp.271.
11
Despite the language of ‘partnership’ which implies some sort of equality and
mutuality in the relationship, in reality, Indigenous organisations and
communities
are
essentially
contractors
required
to
meet
stringent
accountability requirements set by government—a situation in which
government holds the power. This is not a situation in which agreed
evaluative standards have been negotiated by partners, and in which
accountability downwards to clients is seen as more important than
accountability upwards to political masters.
This does not mean that government simply transfers power and walks away from
Aboriginal and Torres Strait Islander communities.
A new relationship needs to be negotiated. Governments have to accept that the way
to achieve the sustainable economic and social development to which they are
committed is to relinquish some of their power and come to a genuine power-sharing
arrangement with Aboriginal and Torres Strait Islander communities26.
A report by the Parliament’s joint Public Accounts and Audit Committee recommending a
high level review of leadership in Indigenous Affairs was tabled in the Federal Parliament on
29 May, 201327.
Committee Chair Rob Oakeshott MP said the need for more effective leadership across
government to tackle critical issues in Aboriginal and Torres Strait Islander affairs was clear:
The Government needs a lead agency with authority and a clear mandate to oversee
expenditure, monitor outcomes, define priorities and drive actions at whole-ofgovernment level,’ Mr Oakeshott said28.
The committee’s report also recommended:

the development of an explicit whole-of-government strategy for capacity
development
—
both
within government
organisations
26
Social Justice Report 2012:pp.116-117.
Media Alert 29 May 2013.
28
Media Alert 29 May 2013.
27
and for
not-for-profit Indigenous
12

improvements to the availability of location-based data on Indigenous expenditure
and outcomes

an update to be provided on efforts to measure outcomes in ‘priority’ remote service
delivery communities and

options to be examined for improving Aboriginal and Torres Strait Islander
representation and involvement in decision-making processes29.
It is acknowledged that recognition of the diversity among PBCs/RNTBCs is crucial in any
post-determination support. In particular it must note that:
Each instance of native title is peculiar to its 'recognition space' and is structured by
the combined operation of the relevant indigenous system of traditional law and
custom and the common law30.
Furthermore:
The diversity is produced by factors such
as: the content of the particular native
title and the different forms of land exploitation that may be associated with it, the
socio-economic and socio-cultural characteristics
of the group, the group's goals
and aspirations for managing the title, and the institutional setting of the group.
This may necessitate a system that is sufficiently
flexible
relationship between the group and the corporation to be
to
allow
the
legal
defined differently in each
case31.
It is our submission that the post-determination support must involve a detailed assessment
of the group's aspirations and priorities. These aspirations and priorities will have to be
placed in the context of the group's social, political and economic goals, which are likely to
be broader than native title management.
Resource Hub post-determination services to RNTBCs
It is our submission that the development of regional resourcing hubs which provide a one
stop shop for RNTBC/PBC support would greatly assist PBCs/RNTBCs. The resource hub
concept involves a collaboration of traditional owners in approaching service providers and
stakeholders allowing more leverage in negotiations and the pooling of resources. It is in
essence a co-operative of traditional owners.
29
Media Alert 29 May 2013.
Native Title Corporations (2000) Mantziaris, C and Martin D pp.134-135.
31
Native Title Corporations (2000) Mantziaris, C and Martin D p.136.
30
13
Cooperatives allow members to pool resources to achieve greater benefits than they could
as individuals. Cooperatives belong to, and are operated for, the benefit of members who
generally share investment and operational risks, benefits and losses.
The resource hub co-operative could meet the requirements identified in the Discussion
Paper and set out below with some additional features noted below.
Services
Description
Legal advice

Agreement implementation,
compliance, reporting and
review

Future act/land use activity

Referral for legal advice.

General guidance regarding
developments in the law

Assistance with application
for
Public
Benevolent
Institution status etc.
Organisational development

Governance
succession
(including
planning
for
boards)

Corporate planning

Communications
and
community engagement

Sourcing
funds
(grant
writing)

Accommodation support

Conflict management

Information
(including
management
transfer
research information)
of
14
Financial services

Corporate (tax, insurance,
budgeting, payroll)

Trusts (professional trustees,
trust accounting)
Community development

Natural
resource
management
(country
planning, joint management
and governance)

Economic
development
(enterprise
development,
business
planning
and
investment facilitation)

Participatory
planning
(strategic country planning,
monitoring and evaluation)
The resource hub would allow PBCs/RNTBCs to approach the hub for assistance through
established partnerships or professional services as and when they see fit and in line with
their priorities.
We note that in the PBC/RNTBC environment there is 'intense competition for resources
such as public funding'32. The resource hub would allow PBCs/RNTBCs to come to together
at their choosing to make joint funding applications and reduce administrative costs on the
ground.
The resource hub would also allow Local Governments and proponents etc to approach the
hub for assistance in dealing with traditional owners. The State of Queensland has already
identified the value in such a scheme and is in the process of investigating the ‘Feasibility
32
Native Title Corporations (2000) Mantziaris, C and Martin D p.278.
15
and Desirability of a Queensland Aboriginal and Torres Strait Island Land Tenure, Land Use
Planning Hub’33.
Below is an indicative model of the resource hub proposed by MYAC:
Co-operative of traditional owners
Traditional
Owner Groups
Proponents
Government
(Local
Government,
State)
Other Partners:
NTRBs, NTSPs,
WTMA, Chamber
of Commerce etc.
Co-existence Agreement
Co-ordinating Committee comprising of all partners to the coexistence agreement
Executive Officer and Administration
Funding for the resource hub would be facilitated through the utilisation of RNTBC/PBC
existing funding (should they so choose), third party service providing, philanthropic
organisations and government programs.
The concept of the regional resource hub was discussed at the MYAC facilitated meeting of
traditional owners on 20 September 2013.
The meeting attendees34 resolved that they
agreed in principle with the model and would continue to work with MYAC in developing the
proposal.
33
Department of Aboriginal and Torres Strait Islander and Multicultural Affairs, August 2013, 021 FNR 13
Consultancy for an investigation into the feasibility and desirability of a Queensland Aboriginal and Torres
Strait Islander Land Tenure, Land Use Planning Hub, p. 3.
34
See Appendix 1 for list of attendees.
16
Response to Terms of Reference
1. Examine the range of functions, both statutory and non-statutory currently
performed by NTRBs and NTSPs
Part 11 of the NTA currently outlines the functions of NTRBs/NTSPs. As discussed
above these functions are largely focused on the prosecution of native title
determination applications and the protection of native title rights and interests.
It is our submission that there should be no amendment to the current statutory
functions of NTRBs/NTSPs as outlined in the NTA.
We note that some NTRBs/NTSPs do provide fee for service work outside of their
statutory functions. We do not support NTRBs/NTSPs provision of these services on
the basis that they are removing opportunities for RNTBCs/PBCs to provide these
services to third parties and generate their own income.
We also submit that NTRB/NTSP representative areas should be reduced each time
there is a determination of native title. This would allow RNTBCs/PBCs to step
completely into self-determination. As explained above this is crucial in ensuring the
improvement in socio-economic conditions for traditional owner groups.
Below is a diagram setting out the concept:
White area is the
NTRB/NTSP
Representative
Area
Yellow area is a Determination Area outside of the NTRB/NTSP Representative Area
17
2. Consider whether NTRBs and NTSPs could adopt a broader role in promoting
and facilitating sustainable use of benefits flowing from agreements and
settlement of claims
We submit that NTRB/NTSP functions are sufficient as currently outlined in the NTA. We
believe that their possible intrusion into the ‘use of benefits’ is a protectionist approach
that fails to promote traditional owner self-determination and socio-economic
improvement.
NTRBs/NTSPs can assist in ‘promoting and facilitating use of benefits’ via capacity
development during the claims process. This can be achieved by:

establishing trusts/aboriginal corporations early in the claim process to ensure
that all members and directors are familiar with the processes and procedures
required in running a successful RNTBC/PBC;

ensuring their clients are fully informed as to their responsibilities as members
and directors of RNTBC/PBCs;

assist with the development of financial and governance mechanisms;

obtain public benevolent institution status etc where applicable; and

facilitate regular training of Directors.
NTRBs/NTSPs can also ensure traditional owners for the region are benefiting from
agreements by securing solid anthropological evidence in the prosecuting of claims and
providing these resources to the RNTBC/PBC at the conclusion of each matter.
Our proposed resource hub would allow NTRBs/NTSPs to provide ‘in kind’ support to
traditional owners post determination should they so choose and should traditional
owners want their assistance. The proviso would be that the NTRBs/NTSBs agree to be
bound by the co-existence agreement.
3. Consider whether there is a continuing need for the recognition provisions in
Part 11 of the Native Title Act, noting that 6 of the current 15 native title
organisations are NTSPs and therefore outside of the recognition scheme
It is our position that NTSPs provide a more independent and structured approach in
providing services to traditional owners. In our view NTRBs are overly politicised to the
18
point where their constituents are not receiving the services they should for the monies
that are being injected by the Federal Government.
NTSPs also appear to focus more on the ongoing economic development and selfdetermination of RNTBC/PBCs and have directors on their board with skills to pursue
this initiative. The notable exception within our representative region is the Cape York
Land Council which we discuss below.
4. Examine the scope for rationalisation of the numbers of NTRBs and NTSPs
currently operating in the native title system
We believe that the number of NTRBs/NTSPs in Queensland can be reduced.
As
discussed above we propose a model whereby once a determination of native title has
been made those tracts of land should no longer fall within the jurisdiction of the local
NTRB/NTSP. That being the case many NTRBs/NTSPs would have a much reduced
area to attend to and could be rationalised.
Within our representative body region there have been a large number of
determinations35. The rationale for our local NTRB to continue as a NTRB is in our
opinion a duplication of unnecessary services. Within the Cairns region there exists
Cape York Land Council NTRB, Carpentaria Land Council NTSP and a branch of the
Torres Strait Regional Authority.
We are particularly impressed with the range of enabling services Cape York Land
Council and their partner organisations such as Cape York Institute, Cape York
Partnerships and Balkanu provide to the traditional owners of Cape York. They promote
self-determination and economic development and provide an overarching approach to
improving the outlook of traditional owner groups outside of native title.
It is noted that:
The Cape York Institute has focused on the concept of engagement in the ‘real
economy’ as the most important factor for achieving improvement in Indigenous
socio-economic outcomes. CYI promotes three factors as necessary for viability of
remote communities: enhancing individual capability; individuals ‘orbiting’ away from
35
See Appendix 2.
19
communities; and enhanced market opportunities. The CYI policies reinforce the
conventional development approach on traditional market sectors and economic
measures of success36.
We strongly support this model of interaction with traditional owners within our region.
5. Consider whether there should be legislative changes to NTRB and NTSP
existing powers and functions specifically to include assistance to RNTBCs,
where appropriate, to attain the capacity to undertake their functions in the
best interests of their members and the native title group and in accordance
with their legislative and governance requirements (noting that not all RNTBCs
require such assistance)
As discussed above, we believe that NTRBs/NTSPs should focus on their key functions
namely the prosecution of native title determination applications and the protection of
native title rights and interests. We note in some regions these dual tasks have proved
challenging for NTRBs/NTSPs.
We believe NTRBs/NTSPs should focus on the
fulfilment of these tasks in a timelier manner rather than venturing down additional paths.
We note that our local NTRB the North Queensland Land Council currently lacks the
capacity to fulfil their current functions and is outsourcing some work to the National
Native Title Tribunal.
We do not support any amendment to the NTA in terms of amending the existing powers
and functions of NTRBs/NTSPs to assist RNTBCs/PBCs.
As discussed above
NTRBs/NTSPs can improve the position of RNTBCs/PBCs during the claim process
simply by:

establishing trusts/aboriginal corporations early in the claim process to ensure
that all members and directors are familiar with the processes and procedures
required in running a successful RNTBC/PBC;

ensuring their clients are fully informed as to their responsibilities as members
and directors of RNTBC/PBCs;
36

assist with the development of financial and governance mechanisms;

obtain public benevolent institution status etc where applicable; and

facilitate regular training of Directors.
Hill, R etal 2007 A Cultural and Conservation Economy for Northern Australia p.19.
20
We submit that many of the experts who may assist RNTBCs/PBCs are not currently
employed by NTRBs/NTSPs including:

accountants;

commercial lawyers;

planners; and

business advisors.
The engagement of such experts would be limited to particular projects and may only be
required from time to time. In this way, it is unlikely that NTRBs/NTSPs could justify the
employment of such people on their staff.
It is our submission that it is also important that RNTBCs/PBCs have the option of
choosing with whom they wish to work. No such decision can be made when dealing
with NTRBs/NTSPs.
We strongly reiterate our statement that any increase in power and functions to
NTRBs/NTSPs presents a further barrier to RNTBCs/PBCs push for self-determination
and better socio-economic conditions. Furthermore, it is our belief that such an alteration
would not be supported by RNTBCs/PBCs as evidence by our forum in Cairns.
6. Consider the nature of that assistance, canvassing capacity building, and
direct or indirect provision of financial, legal and dispute resolution services
The assistance currently provided by our NTRB/NTSP in focusing on native title
determination applications and the protection of native title rights and interests is
sufficient.
We note that our representative body provides little dispute resolution
services and is currently utilising the National Native Title Tribunal on a fee for service
basis to fulfil this role.
As described above the ability of NTRBs/NTSPs to assist in capacity building should be
limited to the duration of the claims process.
We believe that NTRBs/NTSPs should also provide a comprehensive handover to
PBCs/RNTBCs in the lead up to the determination of native title. This could include:

Copies of relevant court decisions;
21

Provision of anthropological reports and related materials;

Copies of relevant legislation and regulations;

Provision of template policies and procedures;

Relevant contact lists;

Copies of Indigenous Land Use Agreements, Ancillary Agreements, Cultural
Heritage Management Plans/Agreements; and

Provision of maps and so on.
It is our submission that one of the most crucial items that should be transferred to
PBCs/RNTBC following their determination of native title is the transfer of intellectual
property ownership in anthropological reports and the like to the PBC/RNTBC.
We agree that for a limited period of time NTRBs/NTSPs should be the vehicle by which
the relevant funding agency provides funding to the PBCs/RNTBCs however after 12
months from the date of any determination RNTBCs/PBCs should have the option to
apply in their own right to the funding body and become truly autonomous.
7. Consider the current nature of services to native title holders and claimants by
non-NTRB and NTSP based professionals, and the impact on the native title
system of these services
We have found that the vast majority of services provided by professionals outside of the
NTRB/NTSP framework to be of a high standard. It is our view that individuals in the
private market are more susceptible to loss of business if they do not perform at a high
level and therefore go above and beyond to produce good work.
We note that in any area of expertise there are individuals who do not operate in a
proper manner. As a RNTBC/PBC we are aware that should we have an issue with a
lawyer we can make a complaint to the Legal Services Commission. We do note with
concern however that historians, anthropologists and archaeologists do not have the
same standards imposed upon them. We suggest in their case that an accreditation
system be developed.
We are empowered by the fact that we can engage our own experts in particular fields
on our terms and according to our priorities.
22
8. Consider whether there should be legislative or regulatory changes to ensure
the scope and quality of services to native title holders from non-NTRB and
NTSP based professionals are appropriate
As discussed above we are aware that solicitors are governed by professional standards
legislation and that there is an entity that deals with complaints.
We believe that historians, archaeologists and anthropologists who are not regulated in
the same fashion need to be regulated. We would suggest a system of accreditation.
It is our submission that as part of any NTRB/NTSP handover to RNTBCs/PBCs,
RNTBCs/PBCs should be provided with details of who to contact if they are not content
with the services they receive.
Conclusion
The long term viability of native title institutions will depend, in large measure, on whether
they have the resources to undertake their functions efficiently and effectively. Both the
human and capital resources required will be determined by such factors as the scale of the
institution, the complexity of its internal governance procedures, and the complexity of its
functions in managing the particular native title37.
If experience to date remains the course, native title institutions will be subject to ad hoc and
intermittent funding regimes that cause considerable problems for indigenous entities.
There is little to be gained in designing resource-intensive institutional arrangements.
Alternative, simpler, less resource dependent options must be considered38.
Commissioner Mick Gooda has noted:
Talking with Aboriginal and Torres Strait Islander peoples across the country, I
regularly hear stories of governments acting as a ‘roadblock’ to our communities. If
we are to address the critical issues in our communities, governments need to create
less bureaucratic burden for our communities and do more to enable Aboriginal and
Torres Strait Islander peoples to realise their unique aspirations39.
37
Native Title Corporations (2000) Mantziaris, C and Martin D p.287.
Native Title Corporations (2000) Mantziaris, C and Martin D p.288.
39
Native Title Report 2012:p. 78.
38
23
The potential for PBCs to realise many of the key rights of the Declaration such as:
• self-determination over our lands, territories and resources
• recognition and protection of our lands, territories and resources
• maintenance and protection of cultural heritage and traditional knowledge
• consultation and participation in decision-making about projects occurring on our
lands, territories and resources,
is available to native title holders in the legislative framework40.
Our proposed native title resource hub has been welcomed in our region as a grass-roots
approach that does promote self-determination in a cost effective manner. In this way we
believe it will have the support of traditional owner groups something which, is crucial in the
success of RNTBCs/PBCs post determination.
The MYAC thanks you for the opportunity to participate in this consultation. If you have any
questions in relation to this matter, please direct all correspondence to:
PO Box 540
GORDONVALE
QUEENSLAND 4865
Yours faithfully
Ms. Dawn Kyle
Chairperson
Mandingalbay Yidinji Aboriginal Corporation - PBC
40
Native Title Report 2012: pp.101-102.
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APPENDIX 1
Attendees of MYAC Meeting 20 September 2013
25
26
APPENDIX 2
Map of North Queensland Land Council Representative Body Area inclusive of
Determination Areas