30 September 2013
Native Title Review Team
Deloitte
PO Box N250
Grosvenor Place
Sydney NSW 2000
By Email: native.title@deloitte.com.au
Review of the Roles and Functions of Native Title Organisations - Submission
1.
1
2
Background
1.1
Other than where specified in this submission, the acronyms used have the
same meanings as set out at page iii of the review discussion paper1.
1.2
This submission is made by the Torres Strait Regional Authority (“TSRA”) in its
capacity as the currently recognised Native Title Representative Body for the
Torres Strait region.
A map showing the boundary of the TSRA’s
representative body area is contained in Annexure 1.
1.3
A list of the current native title bodies2 and ongoing claims in the Torres Strait
representative body area is contained in Annexure 2.
1.4
The representative body function of the TSRA is largely administered by its
discrete Native Title Office (“NTO”). Unlike other NTRBs and NTSPs, the
representative body function is not the sole function of the TSRA. Details of the
TSRA and the NTO and their functions are contained in Annexure 3.
1.5
The NTO in the TSRA takes instructions directly from claim groups and their
applicants in respect of pre-determination matters and from RNTBCs in respect
of post-determination matters. Annexure 4 contains a list of the types of predetermination and post-determination matters which frequently arise in the
Torres Strait region.
1.6
As is evident from that list, there are many pre-determination and postdetermination matters specific to the Torres Strait. Moreover, the region
involves many other important distinguishing features when compared with
representative body areas in other parts of Australia.
1.7
Amongst those distinguishing features is the number of post-determination
RNTBCs in the Torres Strait and the periods of time over which they have been
Deloitte discussion paper dated June 2013.
Representative body and RNTBCs.
Document1
operating (in some cases over a decade)3. There remains only a small number
of native title claims still to be determined.
1.8
2.
However it is paramount to the review outcomes that there continue to remain a
separate representative body specific to the Torres Strait region.
Proposal for Change of Torres Strait Representative Body Recognition
2.1
Torres Strait Islander RNTBCs have proposed a change to the representative
body arrangements in the Torres Strait. For that purpose an entity has already
been established: Gur A Baradharaw Kod Torres Strait Sea and Land Council
Torres Strait Islander Corporation (ICN: 7689) (“Torres Strait Sea and Land
Council”).
2.2
It is specifically proposed that the recognition by the Commonwealth Minister
under s203AD of the NTA of the TSRA as the Native Title Representative Body
cease on 30 June 2015 and that the Minister instead give recognition to the
Torres Strait Sea and Land Council as the Native Title Representative Body
from 1 July 2015.
2.3
The Torres Strait Sea and Land Council is registered under the CATSI Act.
Corporate membership is open to all Torres Strait Island RNTBC’s which are
registered under the CATSI Act4.
2.4
The Rule Book for the Torres Strait Sea and Land Council provides for it to
have the following objectives:“(a)
To empower the native title holders and native title bodies
(RNTBCs) of the Torres Strait to fulfil their responsibilities to
hold and manage their sea and lands in accordance with
traditional law and custom.
(b)
To advance the interests of traditional property owners and
native title bodies of the Torres Strait at a regional, national
and international level.
(c)
To protect and promote the traditional rights of the peoples of
the Torres Strait to their land and sea, including cultural
heritage and maintenance.
(d)
To protect and promote the operation of the traditional laws
and customs, governance and decision making that sustains
the rights of traditional owners and native title bodies within the
governance of the Torres Strait and Australia.
(e)
To protect and promote the sustainable management and
economic development of native title land and sea and their
resources in the Torres Strait.
(f)
To promote and support the authority and independence of
native title bodies of the Torres Strait to pursue resources for
3
Saibai Mura Buway (Torres Strait Islander) Corporation is the longest running RNTBC in the Torres
Strait region. It was incorporated on 6 June 1997.
4 See paragraphs 5.1 and 5.2 of the Rule Book of the Torres Strait Sea and Land Council.
2
native title bodies to perform their responsibilities to the native
title holders of the Torres Strait”.
2.5
3.
For the reasons given in paragraph 4 of this submission, the TSRA Board has
resolved to support the proposed change to representative body recognition.
That was initially communicated to FaCHSIA by way of the TSRA’s letter dated
20 November 2012. In addition to reiterating that support, this submission deals
with the following matters:(a)
Identifies some of the issues to be addressed in effecting the change in
representative body recognition.
(b)
Responds to the seven discussion points listed in the review discussion
paper.
Native Title Representative Body for the Torres Strait Region
3.1
The Terms of Reference for the review specifically require that the review
examine the scope for rationalisation of the number of NTRBs and NTSPs
currently operating in the native title system. It is reiterated as a fundamental
point to this submission that there must continue to be a distinct representative
body for the Torres Strait region.
3.2
It is strongly opposed that any representative body for the region be
rationalised or amalgamated with a representative body involving other parts of
Australia.
3.3
The reasons for this are as follows:(a)
There is a clear need for a focussed Native Title Representative Body
service to be provided to the Torres Strait RNTBCs in a postdetermination environment. The overwhelming case is for more specific
and targeted Native Title Representative Body functions and services
for Torres Strait RNTBCs. A rationalisation of Native title Representative
Bodies in North Queensland would inevitably involve the reverse.
(b)
The Torres Strait involves numerous isolated Islands across 35,000
square kilometres. Of that, approximately 98% is seas. A retraction of
service centres, physical presence and focus away from the different
RNTBCs for each of the Islands, let alone the region, would inevitably
lead to much poorer service outcomes.
(c)
The Torres Strait region is geographically, ethnically and in respect of
traditional law and custom, a very distinct region. That is particularly so
for Torres Strait RNTBCs, other native title bodies and the communities
they serve. These points are already generally accepted by the
Commonwealth. They are reflected by the Commonwealth establishing
the TSRA as its own overarching statutory body for the region. The
ATSI Act affords the TSRA its functionality for this specific region on the
following bases (amongst others):i)
To recognise and maintain the special and unique Ailan Kastom
of Torres Strait Islanders living in the Torres Strait area.
3
ii)
To formulate and implement programs for Torres Strait Islanders
and Aboriginal persons, living in the Torres Strait area.
iii)
To develop policy proposals to meet national, State and regional
needs and priorities of Torres Strait Islanders, and Aboriginal
persons, living in the Torres Strait area.
iv)
To take such reasonable action as it considers necessary to
protect Torres Strait Islander and Aboriginal cultural material and
information relating to the Torres Strait area if the material or
information is considered sacred or otherwise significant by
Torres Strait Islanders or Aboriginal persons5.
For similar reasons in a native title context, any representative body for
the Torres Strait region must be specific to the region.
5
(d)
In a post-determination environment, such as that which largely now
applies in the Torres Strait, the focus of representative body assistance
has changed from native title claim resolution to assisting RNTBCs
realise social, cultural and economic aspirations through exercise of, or
applying leverage gained from, the recognition of native title. Such
RNTBC aspirations in the Torres Strait are specific to the region. They
involve utilising the particular resources of the Torres Strait such as
fishing and Island related tourism.
(e)
To a very large extent, RNTBCs in the region need to work together
(including in commercial ventures), to realise those aspirations. This
necessitates a representative body which is local to the region, closely
controlled and directed by the RNTBCs which it serves and which can
develop a substantial corporate knowledge specific to the region.
(f)
There is a specific Ailan Kastom and traditional laws/lores for the Torres
Strait and areas and objects of cultural significance specific to the
Torres Strait. In addition, the Torres Strait native title determinations
recognise traditional laws which are specific to land and waters in this
region. There is a broader body of traditional laws which apply to other
things as well. Some of them, such as traditional law in respect of
dispute resolution, are to a limited degree contained in the Rule Books
of the RNTBCs. However there are other traditional laws which are not
recorded anywhere in writing. For example, crucial traditional laws
relating to family and clan traditional ownership of discrete areas within
the Islands of the Torres Strait. That system of traditional law is unique
to the Torres Strait. Because it is entirely unwritten it requires verbal
transmission between RNTBC members and the representative body
professionals who advise them. For example in relation to ILUA
matters, traditional land dispute resolution matters etc. To address
these things there must be a high degree of localisation in the
representative body including as to its location, identity and functionality.
There must also be a very close connection and trusted relationship
between RNTBCs and the representative body.
(g)
Unique to the Torres Strait region, the native title held by some RNTBCs
(on behalf of common law native title holders), has an international
S142A of the ATSI Act.
4
perspective. For example, the native title determination for Boigu Island
contains recognition of interests under the Treaty between Australia and
Papua New Guinea concerning sovereignty, maritime boundaries and
related matters. These include the interests of Indigenous Papua New
Guinea persons in having access to the determination area for
traditional purposes. The relationship between native title and those
interests is not described in any detail in the determination orders.
However it is the subject of unwritten Ailan Kastom and traditional law.
Again, where an RNTBC requires representative body assistance in
relation to such matters, the representative body must have highly
specialised local knowledge and trusted relationships. In reality these
are things which only a representative body specific to the region can
develop.
3.4
4.
(h)
It is important to note that Torres Strait Islanders and Aboriginal people
in this region have their own Indigenous languages. English is a second
or third language for many people. Furthermore, although there can be
some degree of written communication, many Torres Strait communities
have an oral tradition meaning that information and advice from a
representative body, particularly where it involves complex issues,
needs to be conveyed verbally. This means representative body staff
servicing the Torres Strait must travel extensively from Island to Island
and require trusted relationships with RNTBC representative who can
interpret and translate advice.
Effective communication between
representative body and RNTBCs will be further enhanced by the
Torres Strait Sea and Land Council proposal.
(i)
The logistics and associated costs involved in the discharge of
representative body functions in the Torres Strait must not be
underestimated. There are only limited scheduled flights between
Islands meaning that charter flights must commonly be engaged. There
are similar travel and logistical considerations for RNTBC
representatives when meeting together with their representative body.
In such a situation, RNTBC representatives usually need to take flights
to Thursday Island or another central Torres Strait location. These
logistics are able to be handled, both in administrative and financial
terms, where the representative body is specific to and physically
located in the region.
However, were there to be a
rationalisation/amalgamation between the Torres Strait representative
body and representative bodies for other parts of Australia, the logistics
and associated costs would simply not be viable. The nearest regional
centre accessible from the Torres Strait by air is Cairns. Cairns is
located 800kms from Thursday Island and the cost of a single return
flight is approximately $700. The distance between Thursday Island
and the outer most Island of the Torres Strait (Mer Island) is 200kms
and the approximate cost of a return charter flight between those
locations is $5000.
Any amalgamation between a representative body specific to the Torres Strait
and representatives bodies for other parts of Australia would entail greater not
lower cost.
Reasons for Recognition of the Torres Strait Sea and Land Council
5
4.1
The TSRA’s support for the Torres Strait Sea and Land Council to receive
representative body recognition is given for the following reasons:(a)
It is fundamental to the regulatory and governance framework of the
TSRA that the organisation be responsive to the needs and aspirations
of the Torres Strait Islander and Aboriginal People of the region. The
members of the TSRA are directly elected by those people. In
supporting the proposal the TSRA is acting on the representations of its
constituents and RNTBCs.
(b)
The Torres Strait region is now operating largely in a post-determination
environment. As RNTBCs are now well established, their focus is on
the actions that can be taken to leverage native title into grants of other
interests in land and waters (such as land title grants under the Torres
Strait Islander Land Act 1991 (Qld) (“TSILA”) and the Aboriginal Land
Act 1991 (Qld)) (“ALA”). Grants of that kind can coexist with native title,
are able to be held by an RNTBC (ensuring a single land title/native title
holder) and are more amenable to economic development initiatives.
RNTBCs accordingly seek more direct involvement in a representative
body which will directly aid them in those transactions.
(c)
RNTBCs are also now focused on achieving their own social and
economic development outcomes for their own common law native title
holders. These are matters which appropriately involve greater direct
control by RNTBCs of both representative body functions and its
resourcing.
(d)
It is important that the individual capacity and capability of RNTBCs be
increased to enable them to do as much as possible themselves in
realising the aspirations of their common law native title holders. In
addition, the exercise and administration of native title (such as
requirements and procedures under Rule Books, traditional law, and
Aialan Kastom), makes a more direct connection between RNTBCs and
their representative body desirable.
An RNTBC controlled
representative body will better enable skills transfer and upskilling
between the representative body and RNTBCs.
(e)
It is appropriate that in the exercise of native title and the realisation of
the opportunities it gives rise to, there be greater independence and
autonomy for RNTBCS.
(f)
The extent of post-determination matters in the Torres Strait region
(including transfers under the TSILA and the ALA), mean that an
ordering and prioritisation of representative body assistance is often
needed between RNTBCs. It is preferable that decisions about the
allocation of resources and the prioritisation of transactions be more
directly decided by RNTBCs themselves through a representative body
controlled by them.
(g)
The TSRA performs many functions additional to the representative
body function of its NTO. A separate representative body will be better
able to focus exclusively on serving the native title and related needs of
RNTBCs.
6
5.
4.2
The TSRA has already supported the aspirations of RNTBCs for the Torres
Strait Sea and Land Council to assume representative body status through its
correspondence to FaCHSIA dated 20 November 2012. It also made
representations to that effect at the review team consultation session on Horn
Island on 10 July 2013. The TSRA suggests that a working group be
established involving the Torres Strait Sea and Land Council, the TSRA and
FaCHSIA to examine the statutory requirements, logistics and other
arrangements for a change of representative body recognition.
4.3
Apart from cultural heritage repatriation measures, both Aboriginal and Torres
Strait Islander cultural heritage issues are subject to primary legislative
regulation by the Aboriginal Cultural Heritage Act 2003 (Qld) (“ACHA”) and the
Torres Strait Islander Cultural Heritage Act 2003 (Qld) (“TSICHA”).
4.4
Although the law recognises native title and cultural heritage as separate and
distinct legal interests, the ACHA and the TSICHA create statutory linkages
between them. For example, an RNTBC is deemed to be the party with whom
consultation, agreement-making and other cultural heritage compliance
measures must be taken. Furthermore, the legislation enables ILUAs to be
used to address both native title and cultural heritage compliance matters. The
template Infrastructure and Housing ILUA provides outcomes, administered by
RNTBCs, on both matters.
4.5
If the Torres Strait Sea and Land Council assumes representative body status
for native title matters in the Torres Strait, there is some logic that it should also
assume the TSRA’s cultural heritage function.
Issues to be Addressed for Change of Torres Strait Representative Body
5.1
The Review Team’s report to the Minister must identify that, for the Torres
Strait, a very specific recommendation for reform has been proposed by
RNTBCs and supported by the TSRA. That is for the Torres Strait Sea and
Land Council, instead of the TSRA, to be recognised as the Native Title
Representative Body for the region.
5.2
It may be that this will constitute something of an anomaly to other review
recommendations. However it is justified by the particular and unique
circumstances of the Torres Strait region as set out in this submission.
5.3
It is also acknowledged that the NTA prescribes requirements and processes
for representative body recognition by the Commonwealth Minister6.
Nonetheless, the statutory process begins with the Commonwealth Minister
inviting applications from eligible bodies for recognition and there appears to be
no reason why that could not occur on a special basis for the Torres Strait
separate to recognition and re-recognition processes for other representative
body areas in Australia.
5.4
Some issues identified by the TSRA on a preliminary basis for a working group
to consider are as follows:(a)
6
Requirements under the NTA and any Commonwealth policy relating to
recognition by the Commonwealth Minister of the Torres Strait Sea and
Land Council as the representative body for the Torres Strait region.
Part 11 Division 2 of the NTA.
7
5.5
6.
(b)
The requirements for the Torres Strait Sea and Land Council to be an
eligible body for that purpose under the NTA.
(c)
Change management arrangements as between the TSRA/NTO and
the Torres Strait Sea and Land Council.
(d)
Transitional arrangements as between the TSRA/NTO and the Torres
Strait Sea and Land Council regarding ongoing matters.
(e)
A management structure for the Torres Strait Sea and Land Council.
(f)
Assessing the representative body area for the Torres Strait Sea and
Land Council as the new representative body.
(g)
Funding and financial management requirements and systems for the
Torres Strait Sea and Land Council.
(h)
Professional and support staffing and other representative body service
requirements for the Torres Strait Sea and Land Council.
The TSRA seeks to work with RNTBCs and FaCHSIA, through a dedicated
working group, to address these issues as soon as possible.
Conclusion
6.1
In addition to the key submission points contained in this letter, Annexure 5
addresses the specific discussion points raised by the review discussion paper.
6.2
The fundamental submissions are:(a)
The Torres Strait Sea and Land Council be recognised by the
Commonwealth Minister as a new Native Title Representative Body for
the Torres Strait region in place of the TSRA.
(b)
Under no circumstances can there be a rationalisation/amalgamation
between a Torres Strait specific representative body and representative
bodies for other areas of Australia.
Should you require any further information please contact John Ramsay.
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ANNEXURE 1
Map Showing Boundary of Torres Strait Representative Body Area
9
ANNEXURE 2
Native Title Bodies in the Torres Strait Region
(as at 3 September 2013)
A. Native Title Representative Bodies/Service Providers
1.
Torres Strait Regional Authority through its Native Title Office.
B. Registered Native Title Bodies Corporate
1.
Badu Ar Mua Migi Lagal Corporation
2.
Dauanalgaw Corporation
3.
Erubam Le Traditional Land and Sea Owners Corporation
4.
Garboi Corporation
5.
Gebaralgal Corporation
6.
Goemulgaw Corporation
7.
Kaurareg Native Title Aboriginal Corporation
8.
Kulkalgal Corporation RNTBC
9.
Magani Lagaugal Corporation
10.
Malu Ki’ai Corporation
11.
Maluilgal Corporation
12.
Masigalgal Corporation
13.
Maulgal Corporation
14.
Mer Gedkem Le Corporation
15.
Mura Badulgal Corporation
16.
Porumalgal Corporation
17.
Saibai Mura Buway Corporation
18.
Ugar Kem Le Ged Zeuber Er Kep Le Corporation
19.
Wakyama Corporation
20.
Warraberalgal Corporation
Note: The Torres Strait Sea Claim (Part B) is still to be determined as there is an overlap in
sea claim areas between that claim, Kaurareg People #1 (QUD266/2008), Kaurareg People
#2 (QUD267/2008), and Gudang Yadhaykenu People #1 (QUD269/2008).
C. Native Title Determinations
1.
Badu (Badu Islanders) #1 (QUD6078/1998)
2.
Erubam Le (Darnley Islanders) #1 (QUD6036/1998)
10
3.
Kaurareg People (Mipa, Tarilag, Yeta, Damaralag) (QUD6027/1998)
4.
Kaurareg People (Murulag #1) (QUD 6024/1998)
5.
Kaurareg People (Murulag #2) (QUD6026/1998)
6.
Kaurareg People (Ngurupai) (QUD6023/1998)
7.
Kaurareg People (Zuna) (QUD6025/1998)
8.
Mabuiag Islanders #1 (QUD6062/1998)
9.
People of Boigu Islander #2 (QUD6199/1998)
10.
People of Dauan Island #1 (QUD6248/1998)
11.
People of Masig (Yorke Islanders) #1 (QUD6068/1998)
12.
People of Warraber (Sue Islanders) #2 (QUD6073/1998)
13.
Poruma People (QUD6087/1998)
14.
Torres Strait Regional Sea Claim (Party A) (QUD6040/2001)
15.
Ugar (Stephen Islanders) #1 (QUD6076/1998)
16.
Waier and Dowar Islands (QUD6204/1998)
17.
Yam Islanders / Tudalaig Combined (QUD6052/1998)
Note: There are more RNTBs than determinations because the Kaurareg Native Title
Aboriginal Corporation is the RNTBC for multiple determination areas.
D. Native Title Claims (active)
1.
Kaurareg People #1 (QUD266/2008) represented by external legal representative
2.
Kaurareg People #2 (QUD267/2008) represented by external legal representative
3.
Kaurareg People #3 (QUD262/2010) represented by external legal representative
4.
Torres Strait Regional Sea Claim (Part B) (QUD6040/2001)
5.
Warral & Ului (QUD6005/2002)
6.
Kulkalgal People #2 (QUD 98/2007)
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ANNEXURE 3
TSRA and NTO Functions
1.
Along with a number of other special purpose Indigenous entities established by the
Australian Government, the Aboriginal and Torres Strait Islander Act 2005 (Cth)
provides for the TSRA and confers on it a broad range of statutory functions
completely separate to the functions and responsibilities of a Native Title
Representative Body. Furthermore, the legislation empowers the Prime Minister to
confer a departmental function on the TSRA7.
2.
Through the implementation of its functions the TSRA, other than in its Native Title
Representative Body role, essentially formulates, coordinates and implements a
whole range of government programs across the region. All of them are directed to
furthering the social, economic and cultural development of Torres Strait Islanders
and Aboriginal people living in the region.
3.
Uniquely, the Torres Strait region and consequently the Native Title Representative
Body function of the TSRA, includes both Aboriginal and Torres Strait Islander
traditional owner groups8. The Torres Strait Region is made up of the following
island cluster groups:
Northern Cluster (Boigu Island, Dauan Island and Saibai Island).

Eastern Cluster (Erub Island, Mer Island and Ugar Island).

Western Cluster (St Pauls and Kubin communities on Moa Island, Badu
Island, Mabuiag Island).

Central Cluster (Masig Island, Poruma Island, Warraber Island and Iama
Island).

Southern Cluster (Thursday Island, Horn Island, Prince of Wales and
Hammond Islands).

Northern Peninsula Area
4.
The policies of the TSRA are determined by a board of members elected by Torres
Strait Islander and Aboriginal people resident in the region.
5.
The NTO reports on the Native Title Representative Body functions of the TSRA to
the TSRA through the TSRA’s management structure. However the, NTO takes
instructions on pre-determination matters directly from native title claim groups and
applicants as appropriate. The NTO takes instructions from RNTBCs on postdetermination matters.
7
Section 142AA of the ATSI Act.
The Southern Division largely comprises the traditional lands and adjoining waters of the Kaurareg
People who are Aboriginal. The four other Island groups which comprise the traditional lands of
Torres Strait Islanders are the region’s Northern Division (Boigu, Dauan, Saibai), Eastern Islands
(Erub, Mer, Ugar), Western Division (St Pauls and Kubin on Moa Island, Badu, Mabuiag), and Central
Division (Masig, Poruma, Warraber and Iama).
8
12
6.
The NTO may brief external advisors where there are capacity constraints in-house,
external technical expertise is required and where required on account of conflict of
interest issues.
7.
The number of individual transactions involved in its Native Title Representative Body
function are considerable. Annexure 4 lists only the broad classes of predetermination and post-determination matters. When individual transactions under
each of those classes are ranged against all of the RNTBCs, the native title
determinations and the ongoing native title claims listed in Annexure 2, there is a
substantial Native Title Representative Body workload.
8.
The NTO is currently supported by the TSRA from its annual financial appropriation
unlike other Native Title Representative Bodies which rely upon a funding grant
provided by FaCHSIA. Unlike other Native Title Representative Body regions, there
is essentially no future act work in the region which involves private projects and
private proponents able to meet or contribute to representative body/RNTBC costs.
Although there is currently a large body of future act work in the region, it relates
almost entirely to public infrastructure and social housing projects of the Australian
Government, the Queensland Government and the two local governments for the
region9.
9.
The resourcing constraints of the NTO, and through it the RNTBCs, has been made
known to all levels of government. Through a template Torres Strait Infrastructure
and Housing ILUA proposal, the region’s native title bodies, the Queensland
Government and the Torres Strait Island Regional Council are close to reaching
agreement on, amongst other things, a schedule of fees for service under section
60AB of the NTA for future act matters which will be covered by the ILUA.
10.
However no level of government has to date been prepared to meet the specific
Native title Representative Body/RNTBC costs for the provision of legal and other
expert assistance to RNTBCs on future act matters as is commonly done by private
proponents of private projects in other representative body areas in Australia. This is
left entirely to the TSRA to pay for this or risk RNTBCs to be placed at serious
disadvantage during negotiations with well resourced government departments.
11.
The total cost of providing Native title Representative Body services in respect of predetermination and post-determination matters is particularly high in the Torres Strait
region. This is due to a number of factors including the number of precedent making
cases and future act innovations which the region has pioneered. Current examples
include the appeal to the High Court of Australia regarding the Torres Strait Regional
Sea Claim10, the template Infrastructure and Housing ILUA and the “transfer” of a
Queensland Government held Indigenous reserve on Mer Island and Dauar Island to
Torres Strait Islander Freehold under the TSILA in December 2012.
12.
A proper understanding of the Native Title Representative Body functions in the
Torres Strait must involve an appreciation of the particularly high “cost of business” in
the region. Prominent are travel costs associated with charter flights between the
Islands of the Torres Strait and between the Torres Strait and regional centres on the
mainland. It should be noted that regulatory consultation and consent requirements
for post-determination body corporate ILUAs11, alone require extensive travel
9
Torres Strait Island Regional Council and the Torres Shire Council.
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth.
11 Regulation 8 of the Regulations and RNTBC Rule Books.
10
13
between the Islands in the region and between the region and the mainland. Many
common law native title holders for ILUA areas reside in mainland centres.
13.
A major challenge for the NTO is the prioritisation of numerous pre-determination and
post-determination matters requiring simultaneous assistance to multiple RNTBCs,
particularly having regard to the resourcing constraints which exist at any one time.
14.
A further challenge is the seemingly unending process of statutory change on matters
specific to the Torres Strait, the complexity of Torres Strait specific laws and the
volume of transactions which those laws involve. Although Annexure 4 details the
broad classes of matters which a Torres Strait Native Title Representative Body must
deal with, the following are just some of the more diverse matters the NTO is
currently working on:
The NTO provides a major role advising and assisting RNTBCs on matters
relating to the roll-out of the National Partnership Agreement on Remote
Indigenous Housing. This includes social housing lease transactions under
TSILA for multiple communities, separate social housing ILUAs to enable the
valid grant of social housing leases and comprehensive consultation and
consent processes for each ILUA to meet the requirements of the Regulation
and individual RNTBC Rule Books.

Individual project ILUAs to which RNTBC’s are parties for a wide range of
Australian Government, Queensland Government, local government and
essential service infrastructure. Current examples include ILUAs for IBIS
stores, Telstra telecommunication facilities, Ergon Energy and AQIS facilities.

Other future act processes (e.g under section 24HA and section 24KA of the
NTA) under the NTA in respect of other discrete projects. For example, joint
Australian Government/Queensland Government seawall projects currently
proposed for six outer Islands.

Cultural heritage compliance processes under the ACHA and the TSICHA for
discrete projects such as cultural heritage agreements and consultations.

The development of a template Torres Strait Infrastructure and Housing ILUA
involving all RNTBCs and two levels of government with a view to achieving
future act process efficiencies for infrastructure and housing projects and
better compensation outcomes for RNTBCs.

Ongoing case management by the Federal Court of Australia for all remaining
native title claims in the region, including at present, mediation processes to
resolve remaining claim overlaps.

Establishing a new RNTBC for purposes of the determination of the Torres
Strait Regional Sea Claim which was the subject of a successful appeal
decision from the High Court of Australia in August 2013.

Instructions from the Kaurareg RNTBC to examine a prospective application
to the Federal Court of Australia for orders changing aspects of its existing
determinations of native title.

Development of a strategy on ways to leverage social and economic
outcomes from native title. Current examples include a strategy for the
RNTBC for Mer Island and Dauar Island to assume direct management of the
14
social housing stock on those Islands (possibly in joint venture with a not-forprofit registered housing provider) and fishing enterprise opportunities out of
the High Court’s Regional Sea Claim decision.

Engaging in the process for policy development by the Queensland
Government in respect of its proposal for Freehold Title in Indigenous
Communities, including a submission in response to its initial discussion
paper.

Advising on the substantial implications to RNTBCs of new laws for dealing
with so-called Katter leases and Katter lease applications under the Aboriginal
and Torres Strait Islander Land Holding Act 2013 (Qld).
15
ANNEXURE 4
Pre-determination and Post-determination matters in the TSRA Area
Pre-Determination Matters

Assisting and representing Traditional Owner groups with the preparation and
prosecution of new native title claims.

Indigenous land use agreements developed in conjunction with determinations of
native title claims.

Indigenous land use agreements developed for particular future acts or classes of
future acts (project ILUAs).

Assistance with all other native title processes under Part 2 Division 3 of the Native
Title Act 1993 (Cth) in relation to particular future acts.

Assisting registered native title claimants and native title claim groups with the native
title implications of numerous different classes of land tenure transactions including
those under the Land Act 1994 (Qld), the Aboriginal Land Act 1991 (Qld) (particularly
for the Kaurareg People who are Aboriginal), the Torres Strait Islander Land Act 1991
(Qld) and the Aboriginal and Torres Strait Islander Land Holding Act 2013 (Qld).

Compliance processes for activities subject to the Torres Strait Islander Cultural
Heritage Act 2003 (Qld). Note that under this legislation, pre-determination a
registered native title claimant is the relevant “Torres Strait Islander Party” with whom
consultation and agreements must be made for compliance purposes.

Incorporation of RNTBC’s and associated assistance in preparation for the making of
determinations.
Post-Determination Matters

Assisting RNTBCs with the “transfer” process under the ALA and the TSILA. A
“transfer” involves the revocation of a Deed of Grant in Trust or Indigenous reserve
which is held by a local government or the Queensland Government as trustee, and
replaces this with a grant of Aboriginal Freehold or Torres Strait Islander Freehold to
an RNTBC on trust for the common law native title holders. This inalienable Aboriginal
Freehold and Torres Strait Islander Freehold coexists with native title but is a form of
land title that can be utilised for social and economic development purposes, such as
being leased to third parties.

Indigenous land use agreements developed for particular future acts or classes of
future acts (project ILUAs).

Assistance with all other native title processes under Part 2 Division 3 of the Native
Title Act 1993 (Cth) in relation to particular future acts.

Assisting registered native title claimants and native title claim groups with the native
title implications of numerous classes of land tenure transactions including those under
the Land Act 1994 (Qld), the Aboriginal Land Act 1991 (Qld) and Torres Strait Islander
Land Act 1991 (Qld)
16

Post-transfer, where an RNTBC holds Aboriginal Freehold or Torres Strait Islander
Freehold it itself is the grantor for land tenure transactions under the Aboriginal Land
Act 1991 and the Torres Strait Islander Land Act 1991. Such transactions include the
negotiation, grant and registration of leases and other interests in land such as
licences and easements. These transactions involve a commercial negotiation on
consideration (i.e lease rental) and other terms as between the RNTBC (as grantor)
and the third party grantee. As grantor, the RNTBC also generally prepares the land
tenure instrument (e.g the lease) and may also need to complete a regulatory approval
process for the transaction (e.g obtaining Ministerial consent).

Transactions under the Aboriginal and Torres Strait Islander Land Holding Act 2013
(Qld). Elements of these transactions include the publication of a “trust area notice”,
applications by relevant Traditional Owners for publication of a “lease entitlement
notice”, appeals to the Land Court against refusal to publish lease entitlement notices,
applications for “hardship certificates” in certain circumstances, surrenders of lease
entitlements in certain circumstances and the grant of a so-called “Katter lease”. The
RNTBC has both direct and indirect responsibilities in respect of these transactions.
They include addressing native title where a lease is finally granted and assisting its
members (the applicants) with the application process. The law on these matters has
just been reformed by the Queensland Government. Its implications for RNTBCs and
their members in the Torres Strait region are considerable.

The Queensland Government is also proposing reforms to the law in respect of the
grant of ordinary freehold title in Indigenous communities (i.e grants of alienable
freehold title to individuals under the Land Act 1994 as distinct from grants of
inalienable Aboriginal Freehold and Torres Strait Islander Freehold to RNTBCs on
behalf of the common law native title holders under the Aboriginal Land Act 1991 or
the Torres Strait Islander Land Act 1991). The process for such grants envisaged by
the Queensland Government’s discussion paper have a considerable RNTBC
involvement.

Compliance processes for activities subject to the Torres Strait Islander Cultural
Heritage Act 2003 (Qld). Note that under this legislation, post-determination an
RNTBC is the relevant “Torres Strait Islander Party” with whom consultation and
agreements must be made for compliance purposes.

Post-determination matters relating to determinations of native title including
applications to the Federal Court to amend determinations and advice on all aspects of
the interpretation and application of determinations.

Post-determination advice and assistance on all aspects of RNTBC legal operation
and administration including matters arising under their Rule Books (such as
consultation and consent processes for ILUAs, dispute resolution in respect of land
disputes, membership issues, board issues, general governance issues etc).

Statutory compensation applications in respect of past acts and both valid and invalid
future acts.
17
ANNEXURE 5
TSRA’s Response to Discussion Points
Discussion Point 1: Roles and functions of native title representative bodies/native
title service providers
What current activities of each NTRB/NTSP respond to statutory obligations under the
Native Title Act 1993 (Cth) (NTA) or regulations and what non-statutory work is
undertaken?
1.
Statutory obligations
Key statutory functions for the TSRA are listed in Annexure 4 of the TSRA’s
submission.
Other main functions of representative bodies are:(a)
Facilitation and assistance.
(b)
Certification of applications for determinations of native title, and
applications for registration of Indigenous Land Use Agreements.
(c)
Dispute resolution.
(d)
Notification of people who hold or may hold native title of certain notices
relating to land or waters.
(e)
Agreement making.
(f)
Internal review, provide a process for registered native title bodies
corporate, native title holders, and persons who may hold native, to
seek review by the representative body of its decisions and actions.
A key aspect of exercising these functions is to provide assistance to native title claims
and holders to:-
2.
(a)
Make applications under the NTA (including claimant and compensation
applications).
(b)
Respond to proposed activity and development on land or waters that
may affect native title rights (known as “future acts”).
(c)
Negotiate Indigenous Land Use Agreements (ILUAs). (These are
voluntary and legally binding agreements that are made between one or
more groups, and others, about the use and management of land or
waters).
Non-statutory obligations
Key non-statutory functions are listed in Annexure 4 of the TSRA’s submission.
Other non-statutory functions that the TSRA undertakes include but are not limited to
the following:-
18
(a)
Project Management such as managing the project cycle including
planning, time length, resources and logistics.
(b)
Developing committed and cohesive work teams.
(c)
Developing effective communication processes.
(d)
Managing stakeholders effectively including stakeholder expectations.
(e)
Community engagement.
(f)
Conflict management.
(g)
Pursuing opportunities for funding.
(h)
Logistic management.
(i)
Developing processes and structures for consultation and decision
making appropriate for an RNTBC.
(j)
Supporting native title holders and exploring and developing social and
economic development opportunities.
What factors impact on the focus of NTRB/NTSP activity (e.g State and
Commonwealth Government policies and native title holder needs)?
Key factors are set out in paragraph 3.3 of the TSRA’s submission.
Other key factors that impact the focus of TSRA’s activities include:(a)
The numerous levels of government and government agencies
operating in the Torres Strait region and having to facilitate cooperation
between the various levels of government.
(b)
The remoteness of the region and the Island location of all of the
RNTBCs.
(c)
The number of RNTBCs that the TSRA is assisting and the limited
capacity of the RNTBCs. Each RNTBC has a different capacity and
requires a different level of assistance.
(d)
State and Commonwealth Departments making arrangements to
engage with the RNTBCs directly without understanding the remoteness
of the region and not informing the TSRA of the arrangements. The
TSRA usually needs to make and resource the logistical arrangements
in response to State or Commonwealth department ILUAs,
consultations or other proposals.
What is the relative importance of these activities and the relative scale of the
resources deployed to undertake these activities?
The TSRA expends a lot of its resources on the logistical costs associated with engaging
with the various RNTBCs in performing its Native Title Representative Body functions.
Considering the remoteness and the value of land to small island communities, it is
important to ensure that any project which impacts on land and native title rights and
19
interests are deal with in a process that provides full prior and informed consent with a view
to maximise any returns to the community and Traditional Owners. The TSRA at times is
unable to provide assistance to RNTBCs because of availability of staff and limitations on its
other resources.
Have these activities been subject to any trends or recent changes?
The main trend is the rapidly growing demand for Native Title Representative Body services
in respect of post-determination matters and the declining demand in respect of services for
pre-determination matters. Full details are contained in Annexure 4 of the TSRA’s
submission.
The areas of potential movement (increasing and decreasing) in demand for services in the
short and medium term, include:(a)
Continuing to ensure appropriate and effective representation for all
RNTBCs and implementing the best possible governance model for
RNTBCs in the Torres Strait.
(b)
Increased demand for interaction of RNTBCs with government
departments.
(c)
Increased requests for assistance around RNTBC skills and capacity
development and economic and social development.
What are the main areas where the NTRBs/NTSPs are unable to meet current
demands for their services? Why?
(a)
NTRBs are often not in a position to compete in the current labour
market with other employers, primarily because they cannot offer salary
packages which are commensurate with those offered in both the public
and private sectors. This lack of competitiveness is exacerbated by the
high cost of living, including rental accommodation in the Torres Strait
region. The remoteness of the region is also an issue for recruitment
and retention of staff.
(b)
The TSRA receives requests from RNTBCs for assistance with
economic and social development proposals. The focus of the TSRA is
native title and related aspects of legal compliance. However, as
government departments increase their presence and programs in the
Torres Strait region, RNTBCs and their communities are increasingly
asking for opportunities for economic and social development.
Unfortunately, NTRBs are not provided with adequate resources to
assist with these matters.
What is the potential growth/decline in demand for services in the short to medium
term?
(a)
The growth is in respect of all of the post-determination matters listed in
Annexure 4. There is a relative decline in respect of pre-determination
matters.
Overall, as between both pre-determination and postdetermination matters, there is a steady increase in demand for
services.
20
(b)
In the short to medium term the TSRA anticipates a decline in its Native
Title Representative Body service concerning pre-determination
matters. The TSRA is currently providing legal representation and
assistance to Torres Strait Islanders in respect of the remaining
claimant applications in the Torres Strait region and Part B of a
combined Torres Strait Regional Sea Claim. The TSRA anticipates that
the majority of the remaining claims will be resolved through consent
determinations.
(c)
The TSRA anticipates that there will be an increase in utilisation of its
agreement making functions and also providing assistance to RNTBCs
on a wide range of other land dealing matters. The TSRA has made
major efforts to finalise a regional template infrastructure and housing
ILUA for native title and cultural heritage purposes for all social housing
and public works for the outer Islands.
How much of NTRB/NTSP resources are taken up by their claims activities versus
post-determination activities?
There are smaller allocations of resources for pre-determination matters i.e. focusing on
finalising the remaining native title claims and, progressing Part B of the Torres Strait
Regional Sea Claim. The majority of requests for assistance to the TSRA are for activities
that are either directly or indirectly related to the full range of post-determination matters with
a particular emphasis on those which can deliver economic development opportunities.
There is a growing demand for strategic planning and commercial negotiation assistance.
Discussion Point 2: Agreement making
What are the current challenges to supporting native title holders in relation to
agreements post-determination?
(a)
Many of the matters set out in paragraph 3.3 of the submission involve
challenges in relation to agreements post-determination. It should be
noted that in the Torres Strait RNTBCs are involved in many more
classes of agreements than just native title agreements. Details of the
full range of post-determination transactions involving agreementmaking are contained in Annexure 4. Other challenges include the
following:(i)
In the Torres Strait a significant factor impacting on the TSRA’s
ability to support native title holders in relation to agreements is the
remoteness of the region and capacity limitations of most RNTBCs.
In some parts of the Torres Strait it is difficult to get a telephone
signal. These circumstances can make it difficult to contact and
engage with RNTBCs and communities in a cost effective way. In
order for the TSRA to obtain instructions, visits to the Islands are
often necessary. This adds to the costs of the negotiation process.
Adequate time and resources are required to properly inform
community members and build consensus before major native title
decisions are made.
(ii) The administrative burdens faced by Native Title Representative
Bodies when they are not provided with any additional funding to
adjust to new challenges especially those brought about by the
State Government in transferring DOGIT’s to RNTBC’s and
21
expecting to shift the cost of this to the Native Title Representative
Body and the RNTBC.
(iii) Communication of information, both within the native title group and
between native title holders and governments/external
stakeholders, needs to be culturally appropriate and undertaken in
a manner which assists RNTBCs make informed decisions.
(iv) Although native title has been determined in the Torres Strait region
for many years, the RNTBCs and common law native title holders
have had limited opportunity to develop a strategic plan on a
community by community basis. Such plans would play an
important role in identifying and planning how to address the full
range of post-determination matters RNTBCs confront. Each Island
community has ideas about how they would like to pursue social
and economic development. However, they need support and
resourcing to translate concepts into practical projects and real
outcomes.
(v) Aboriginal and Torres Strait Islander peoples face a number of
barriers to achieving effective and beneficial agreements, including
inadequate skill levels in many cases, chronic resourcing deficiency
and inadequate access to expert advice.
(vi) Aboriginal and Torres Strait Islander People continue to face
barriers to reaching just and equitable agreements, such as
inadequate financial resources and legislative barriers within the
native title system. Conflict exists within communities which can
also be an added barrier.
What are the practical differences between certified and non-certified ILUAs and what
are the implications of these differences?
In the Torres Strait all ILUAs currently being entered into by RNTBCs are body corporate
ILUAs in respect of which certification requirements do not apply. However before an
RNTBC can enter into a body corporate ILUA it must complete regulatory consent processes
under the Regulation and its own Rule Book
In the Torres Strait, the TSRA provides legal advice to RNTBCs for all ILUA negotiations.
Under the Regulation an RNTBC must consult with and obtain the consent of the affected
common law holders. This requirement is satisfied if a document is signed by authorised
members of the RNTBC for the ILUA area certifying the consultation and consent has been
properly undertaken.
The TSRA assists RNTBCs meet the regulatory requirements for consultation and consent
and advises RNTBC members before they certify that consultation and consent
requirements have been properly completed.
Should NTRBs/NTSPs have a stronger or broader role in agreement making postdetermination?
The level of involvement of an NTRB in agreement making should be dependent on the
RNTBC. Where the RNTBC has the capacity to undertake agreement making itself then it
should be given that opportunity. The involvement of an NTRB may also be limited by the
nature of the agreement. If the NTRB does not have the necessary technical skills having
22
regard to the nature of the agreement, it might be able to assist the RNTBC by resourcing an
appropriately qualified external professional.
Should NTRBs/NTSPs have a stronger or broader role facilitating, or assisting in
managing, sustainable use of benefits flowing from agreements and settlement of
claims?
Again, it depends on the capacity of the RNTBC, the common law holders, the community
and the NTRB. Instead of increasing the dependency on an NTRB, more resources should
be dedicated to increasing the capacity and capability of RNTBCs themselves so that they
can become more self sufficient. In some instances, the involvement of an NTRB at the
establishment of an RNTBC, in a mentoring and skills development, can be very beneficial.
However, this is again subject to the skill set of NTRB personnel.
If so, how could this stronger or broader role be achieved? Should it be subject to any
limitations?
Any additional involvement of an NTRB in agreement making post-determination should be
subject to request from an RNTBC. The NTRB could provide assistance by increasing the
capacity of the directors of the RNTBC. In order for a stronger, broader capacity for
RNTBCs to be achieved, an NTRB would need to ensure that it has the appropriate skills to
provide the up-skilling assistance and the appropriate level of financial resources.
Discussion Point 3: Recognition of native title representative bodies
What are the current implications, both positive and negative, of having to seek
recognition and being covered by the recognition provisions?
(a)
One of the TSRA’s main submissions is that the Torres Strait Sea and
Land Council be recognised, instead of the TSRA, as the representative
body for the Torres Strait region. However it is also a key submission
that irrespective of what entity is recognised as the NTRB for the Torres
Strait, there must be a separate and discrete representative body for the
region.
(b)
Representative bodies are sometimes in conflict with government over
native title. It is important, therefore, to maintain as much independence
for representative bodies. NTRBs must be free of perceived or actual
pressure from government over how they pursue the recognition and
protection of native title. NTRBs are already dependant on government
for funding and for recognition. It is important that changes to the native
title system increase the autonomy of NTRBs.
(c)
The imposition of limited fixed term recognition periods can increase the
workload of representative bodies and at the same time reduce actual
resources available to progress native title matters. This is in part
because a large amount of NTRB time can consumed with applying for
re-recognition.
Are governance and funding arrangements affected by the recognition provisions?
(a)
The TSRA directly funds its Native Title Representative Body functions
out of its own appropriation whereas other NTRBs are funded from an
allocation of funds provided for the native title system as a whole. The
23
government also provides operational and strategic support to these
other NTRBs so it can perform their statutory functions in accordance
with their approved strategic and operational plans.
(b)
Short recognition periods undermine the ability of representative bodies
to make medium to long-term plans that are essential if representative
bodies are to be fully effective.
(c)
Short recognition periods reinforce the perception that representative
bodies are insecure, temporary organisations whose existence is
dependent upon Ministerial discretion and political expediency.
Consequentially it is very difficult for them to build a profile and operate
as respected, long-term organisations in communities.
What impact does the possibility of de-recognition have on the operation of NTRBs?
(a)
A reduction in red-tape by removing the requirement for representative
bodies to prepare strategic plans and table their annual reports in
Parliament would free up resources within the NTRB to progress its
substantive workload
(b)
De-recognition would
representative area.
(c)
However, de-recognition of an NTRB could also reduce the direct
involvement of Aboriginal and Torres Strait Islander people because
NTRBs are more likely to have representatives on boards comprised of
Traditional Owners. On the other hand, de-recognition could provide an
NTRB with the ability to assist its constituents with broader issues than
just native title.
make
it
easier
to
change
an
NTRBs
Discussion Point 4: Rationalising of representative bodies / service provider
What anticipated financial and non-financial costs and benefits would be associated
with rationalisation?
(a)
A potential benefit of rationalisation is the pooling of professional staff
with appropriate skills and expertise in native title.
(b)
However, in the case of the Torres Strait region, that potential benefit is
completely outweighed by the disadvantages (both financial and nonfinancial) which would be involved in amalgamation of the Torres Strait
Native Title Representative Body with Native Title Representative
Bodies for other areas of Australia. Full details of the TSRAs
submission on this issue are contained in paragraph 3 of the
submission.
Could an NTRB/NTSP operate effectively in more than one state or territory?
(a)
Differing needs across geographical locations make it completely
impractical to have a centralised organisation, particularly in the case of
the Torres Strait. It was noted in the discussion paper that there are
varying sizes of representative bodies across Australia, because of the
different levels of concentration of native title holders across Australia.
It becomes an issue of administrative capacity whether it would be more
24
effective in some regions over others to have different geographically
sized operations. However a representative body with responsibility for
the Torres Strait could not administratively function effectively if it were
located outside the region.
(b)
Another issue that would impact on a NTRBs ability to operate in more
than one State is ensuring that it has a comprehensive understanding of
the different legislation in each State impacting on RNTBCs and
differing State government policies and procedures.
How would barriers associated with political, historical, operational, cultural and
institutional factors be overcome to achieve any rationalism?
(a)
A NTRB would need to have staff with experience and expertise in the
various jurisdictions including an ability to navigate through the
numerous pieces of legislation that impact on native title bodies and an
ability to build a relationship with very different Indigenous communities.
(b)
It would need to be ensured that any such NTRB had adequate offices
or contact points in the region to provide a full community presence to
remain connected to the issues specific to the region as opposed to
having just a centralised office in a major regional centre.
(c)
The board of the NTRB would need to have representatives from all the
communities it serves.
In what circumstances is a rationalisation of NTRBs/NTSPs likely to enhance the
effectiveness and efficiency of service delivery to native title holders and claimants?
For the reasons given in paragraph 3 of the submission, there are no circumstances in which
a rationalisation of the Native Title Representative Body for the Torres Strait region would
enhance the effectiveness and efficiency of its service delivery to RNTBCs, native title
claimants and native title holders in that region.
What measures might enhance the ability of NTRBs/NTSPs to collaborate on
facilitation and assistance for traditional owner groups, for example, across
jurisdiction?
(a)
Introduction of funding for NTRBs to undertake secondments to other
NTRBs and sharing knowledge and experiences.
(b)
Sharing of research where relevant, for example native title claims that
share a common border.
(c)
Engaging in more dispute resolution outside of the Court process where
there are disputes over country i.e. overlapping native title claims.
Discussion Point 5: Prescribed bodies corporate and registered native title bodies
corporate
In what areas do PBCs/RNTBCs need the most support?
(a)
Many RNTBCs including the majority of them in the Torres Strait still
lack basic functionality and administrative capacity (i.e. office space,
25
computer, reliable email access, phone access or printers). This
severely inhibits their ability to achieve effective governance. Those
RNTBCs rely on the resources available through the NTRB and local
council offices.
(b)
Administrative capacity needs to be addressed at different levels, both
at the individual level of directors and community members and at an
RNTBC corporate level in terms of skill sets, business systems,
infrastructure and human resources.
(c)
The needs of RNTBCs differ greatly, depending on factors such as
location and potential for future act activity within an RNTBC area. In
areas where there is minimal private proponent future act work and no
economic basis for the generation of income, government resourcing is
essential.
(d)
The extent to which RNTBCs need support depends on the capacity of
the RNTBC and the environment in which it operates. However, even
those RNTBCs that are fully functioning often find it difficult to meet all
of their statutory functions and operational requirements. Native title
holders are often forced to compromise their native title rights and
certainly cannot fully realise their native title opportunities.
(e)
RNTBCs don’t have adequate resources to perform their functions. This
is the primary concern of native title holders in relation to the operation
of RNTBCs, rather than any problem inherent in the functions of
RNTBCs themselves.
What legislative and administrative changes, if any, might improve the capacity of
PBCs/RNTBCs to fulfil their functions and responsibilities?
(a)
RNTBC governance structures and processes need to match traditional
values and practices to ensure legitimacy and secure the mandate of
community members. The processes imposed by the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 can be incompatible
with traditional decision-making.
(b)
RNTBCs must be provided with adequate resourcing if they are to fulfil
their statutory obligations and achieve their objectives. The issue of
resourcing is especially critical where a determination of native title is
not accompanied by agreements with external stakeholders such as
mining companies and state/territory/local governments that provide an
on-going source of income.
(c)
The level of government resourcing should reflect the particular
circumstances of the RNTBC, such as the location, membership,
cultural and language requirements, and the extent to which the RNTBC
may be required to deal with additional legislation in relation to its lands
and resources.
(d)
Improve the ability of RNTBCs to access and utilise existing sources of
assistance, including from government and non-government
organisations.
26
(e)
All official correspondence and dealings with the native title holding
group must go through its RNTBC.
Should incorporation (i.e. creation of an RNTBC) be required for all native title
holders?
(a)
While it may be beneficial in some cases, it may not be for all. There
may be instances where an unincorporated body may be just as
beneficial. For example in areas where there is not a strong income
stream generated from private proponent projects to help sustain
complex corporate structures and functions.
(b)
The administrative and legal capacity of an RNTBC is dependent on
adequate resourcing. Resourcing allocations must recognise that many
RNTBCs operate in remote regions and have members who live in
disparate areas. This means that undertaking statutory functions such
as holding effective annual general meetings is expensive or very
difficult.
(c)
In the Torres Strait region RNTBCs for the most part, are without
income or readily available assets.
(d)
Officers of RNTBCs are responsible for a significant amount of voluntary
work in sustaining the basic functioning of an RNTBC. The capacity of
the individuals in these positions often needs to be improved to ensure
they understand their responsibilities. However, there is no transitional
period to allow adequate time for capacity building. Once the RNTBC is
established the directors are immediately responsible.
Discussion Point 6: Native title representative bodies / service provider support for
prescribed bodies corporate and registered native title body corporate
How do NTRBs/NTSPs currently support pre-determination activities by PBCs in
areas such as agreement making and capacity development? Does this support lead
to capacity building post-determinations?
RNTBCs are usually established by the NTRB just before a determination of native title is
made. This often results in minimal opportunities for the RNTBC to become experienced in
agreement making. Up until the making of the determination, it is often the registered native
title claimants who are involved in negotiations. There is little resourcing available to NTRBs
to assist RNTBCs post determination with capacity building, consequently it either does not
occur at all or only to a minimal extent.
To what extent do NTRBs/NTSPs currently support RNTBCs post-determination and
what models does this support follow?
The TSRA has established a Support Officer position. The Support Officer assists RNTBCs
to meet their minimum legislative obligations under the CATSI Act. In particular the Support
Officer provides advice on the conduct of Annual General Meetings, the content of the Rule
Book for administration matters, production of general reports and applications for funding.
Annexure 4 of the submission contains details of the more important post-determination
matters which the TSRA currently supports RNTBCs. It is probably fair to say that it is only
the administrative, capacity building and legal support provided by the TSRA which enables
27
RNTBCs to meet their minimum statutory and functionality requirements.
additional support is needed for RNTBCs to realise their aspirations.
Considerable
Why do NTRBs/NTSPs provide post-determination support even after an RNTBC
exists and has assumed representative responsibilities for native title holders? Is this
support sufficient?
NTRBs continue to provide assistance post-determination because native title involves very
complex concepts and process that can be impossible to navigate without the appropriate
skills and expertise and because there is often no other source of assistance or resourcing.
Without continued support from an NTRB, many RNTBCs would likely fail.
Are there non-financial constraints to the support that NTRBs/NTSPs can give to
RNTBCs post-determination?
There is a huge gap between a determination outcome and a community’s social and
economic development outcomes, particularly in areas where there is no mineral wealth.
The non-financial constraints on NTRB support include the specialist legal and other
professional expertise required to address post-determination matters which may not be held
in-house to the necessary degree. In remote locations, recruiting staff with the necessary
specialist skill sets can be particularly difficult.
What costs would be imposed on NTRBs/NTSPs as a result of increased support for
RNTBCs?
The biggest costs that would be imposed on NTRBs are financial and human/professional
resources. NTRBs often have limited capacity and skill sets to further develop RNTBCs post
determination on economic and community development matters. However, the impact on
financial resources could be minimised if the NTRBs assisted their RNTBCs to partner with
non-government organisations for resourcing, professional skills development, skills sharing
and development.
What other support and relationships do PBCs/RNTBCs draw on and do these
represent a viable substitute to NTRBs/NTSPs for some of the services PBCs/RNTBCs
may need?
There are limited opportunities available for RNTBCs to develop partnerships with nongovernment organisations such as OxFam or Indigenous Community Volunteers for specific
projects.
Given the complex legislative frameworks within which RNTBCs operate, it is essential they
have the capacity to comply with statutory obligations. This includes an ability to identify
when external advice on legal or governance issues is required.
In addition to the statutory requirements of the NTA, the Regulations and the CATSI Act,
RNTBCs have statutory functions under State legislation in relation to alternative
land/resource management, cultural heritage processes and a large range of land tenure
dealings. Expertise on these matters may be outside the skills or capacity of an NTRB. In
these circumstances, private agents need to be engaged.
Where do bodies established as part of an alternative settlement, or to facilitate the
business of a claim group pre-determination, fit in the picture in terms of support?
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Legislative, policy and funding frameworks need to adapt to different governance
arrangements that are based on local realities. Equally, Indigenous communities need to
consider what governance arrangements are likely to enable them to achieve their goals. In
areas that experience significant future act related projects, native title holders have been
able to successfully establish commercial corporate entities and pursue business
opportunities.
What are the advantages and disadvantages associated with cost recovery by
NTRBs/NTSPs?
An advantage of cost recovery by a NTRB is that resources allocated for advancing matters
that may have been temporarily used for a specific negotiation/issue can be recovered.
Potential disadvantages of cost recovery is that at times not all costs incurred in resolving a
matter are able to be recovered. As detailed in Annexure 3, cost recovery from government
proponents in the Torres Strait has proved very difficult.
Discussion Point 7: Private agents
Are there significant differences in the types of native title services provided by
private agents compared to NTRBs/NTSPs?
Depending on the type of or need of a particular service, there are private agents who have
expertise both inside and sometimes more importantly outside the field of native title which
are of great benefit to providing services to clients especially in the area of future economic
development. The NTRB focus is on providing the services as set out in the NTA, and hence
would not be in a position to advise on matters such as business planning and setting up
Trusts or generally exploiting the economic opportunities available from Native title
outcomes.
In recent times, are there differences in cost and outcomes of cases and agreements
managed without the involvement of NTRBs/NTSPs?
There are limited economic opportunities in the Torres Strait Region with most agreements
being entered into with government and other agencies. With next to no financial support
being provided to RNTBC’s in the region, they are heavily reliant upon the NTRB for legal
and other support since there is no real alternative.
Should there be more explicit accountability for the claimant group or its
representatives in the Act?
Yes, there has been an instance of a group who engaged a private agent themselves and
then after a period of some months forwarded all the bills of the private agent to the NTRB
expecting the NTRB to pay without question. The group concerned did not engage the
NTRB in the process at all. There are concerns that this may become a common occurrence
with private agents exploiting the situation for their own benefit.
Would there be value in greater regulation of private agents, e.g. a registration
system, constraints on private agents undertaking particular activity? Should private
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agents assisting Indigenous parties be made subject to some of the same standards
and obligations as set down for NTRBs/NTSPs under the Act?
Yes, often private agents act in a manner that causes division within groups and often only
represent a small minority of disaffected people which can seriously affect the progress of
native title claims leading to greater costs and even failure of the claim overall. The common
assertion is that the private agent is ‘acting upon instructions’ to justify their actions and
there is little that a NTRB can do. It is often felt that the private agent is acting in their own
interest rather than that of their clients by drawing matters out and charging accordingly for
their service. There needs to be standards and obligations imposed upon private agents
similar to those imposed upon NTRB’s under the NTA.
What costs and benefits would be associated with implementing any legislative or
regulatory changes?
This would have to be subject to a comprehensive study, however if properly implemented,
there would long term benefits.
Why do some claim groups choose to pay private lawyers for services they could
receive for free from an NTRB/NTSP?
Apart from situations where it is a conflict of interest for a NTRB to represent a claim group
due to overlapping claims, it is often dissatisfaction with the response from the NTRB
regarding their request for assistance or the NTRB may not be in a position due to resources
to provide the service required. Sometimes it is due to the fact that they have had prior
dealings with the private lawyer and are satisfied with the level of service that has been
provided in the past. Some private lawyers have experience in economic and commercial
areas which can maximise outcomes for claim groups.
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