|Native Title Determinations||145|
|Native Title does not exist in the determination area||14|
|Native Title exists in parts of the determination area||32|
|Native Title exists in the entire determination area||99|
|Active native title determination applications||79|
|Indigenous Land Use Agreements||770|
|Body Corporate Agreements||172|
MS KAYLENE MALTHOUSE, NQLC
Ms Colleen Wall, QSNTS
Mr Charles Passi
Following the Mabo decision, Torres Strait Islanders embraced the establishment of the NTA, submitting a number of native title claims which were quickly progressed by the Queensland government. Twenty six claims in the Torres Strait were finalised by 2006, all by consent and 30 matters within the Torres Strait have been settled to date. To date, 139 claimant determinations of native title have been made in Queensland covering approximately 97 per cent of the State.
Following the 1998 amendments to the Native Title Act, the Queensland government also quickly adopted ILUAs as a preferred method of resolving native title matters. As at 21 September 2017, 770 ILUAs negotiated in Queensland are currently registered with the NNTT, a number that far surpasses any other jurisdiction.
Being a highly prospective state, and facing similar pressures to Western Australia from the mining industry, the government was concerned to ensure that future act matters progressed smoothly and established an alternative future act process under the Mineral Resources Act 1989. This operated between September 2000 and April 2003, administering an alternative to the right to negotiate for the grant of low impact exploration titles after the grantee party had entered into an Access Agreement with the native title party. The alternative regime has since lapsed and currently exploration permits are issued under the expedited procedure if the grantee party accepts the Native Title Protection Conditions (NTPCs) as a condition of the grant of title. The NTPCs are heavily focussed on Aboriginal cultural heritage protection and specify which native title parties a proponent must deal with, what the native title party and proponent must do as part of the licence and the recourse if timeframes are not met.
Additionally, the Aboriginal Cultural Heritage Act 2003 and Torres Strait Islander Cultural Heritage Act 2003 require all developers to carry out surveys and assessments of cultural heritage and prepare Cultural Heritage Management Plans (CHMPs) detailing how any cultural heritage in the area will be protected. CHMPs must be prepared in consultation with relevant Aboriginal groups and are binding upon the developer.
Similar to Western Australia, the Queensland government published Connection guidelines in 2003, most recently updated in November 2016, and successive governments have articulated a policy of settlement by consent as their preferred model. The government has taken a whole of government approach to native title policy and procedures and has published extensive information on their processes.
Mr Paul Richards, Lawyer
North Queensland Land Council
Bar Barrum determination
The 10 June 2016 determinations were attended by approximately 100 Bar Barrum People on a sunny winter’s day at the Dimbulah Town Hall. The determinations not only give the Bar Barrum People recognition as traditional owners of their country, but it also gave them a chance to come together and share stories and reconnect with each other and the country. The Court’s willingness to hold determination hearings on country made this possible.
Terri Anning whose Great Grandmother is Bar Barrum apical ancestor Rosie Congoo, emotionally summarised the importance of native title to her and her family in the following words: What lies behind us and what lies ahead of us are tiny matters compared to what lies within us. Most importantly, native title is about bringing our people back home, welcoming with open arms, restoring their connections, mentally, physically, emotionally, and spiritually, this would lay our Elders at peace and rest.
The road ahead will be forged by the Prescribed Body Corporate, which is Mbabaram Aboriginal Corporation RNTBC and which manages the Bar Barrum People’s native title on behalf of all Bar Barrum People.
Djiru Warrangburra Aboriginal Corporation
The Djiru Warrangburra Aboriginal Corporation (Djiru WAC) was established as a result of the two native title consent determinations of the Djiru People. The Djiru People are the recognised Traditional Owners of approximately 9,440 hectares of land and waters in the area of Mission Beach. The determination is located approximately 133 km south of Cairns and includes parts of the Tully Gorge National Park, Clump Mountain National Park, Djiru National Park, Hull River National, Walter Hill Ranges Conservation Park, unallocated state land and reserve land.
Due to successful negotiations of Indigenous Land Use Agreements, Djiru WAC are able to develop some of their land that has led to their successful hosting of many events at their North Queensland (NQ) Clump Mountain property venue.
How has the recognition of your native title changed the lives of the Djiru People?
Native title for Djiru has been acknowledged and recognised more prominently now in the wider Mission Beach/El Arish area, particularly with local and state governments, regional bodies, community groups, schools, small businesses and private landholders. More employment and training opportunities have also arisen through small to medium grants for Working on Country, encouraging conservation and land management, cultural heritage management and monitoring, as well as cultural awareness training.
What is the connection to the Clump Mountain (property) to the Djiru People?
NQ Clump Mountain Project Society Pty Ltd was established in the late 1970s by a strong Aboriginal and Islander community group, who began a journey to fulfil the last will and testament of one Rupert Fenby. Rupert Fenby dedicated the Clump Mountain property to Aboriginal people for education and tourism opportunities for all aspects of Aboriginal culture and traditional knowledge. Descendants of Djiru have been members of that organisation since its inception and until the native title process began, an understanding to have Djiru involved culturally was observed. Major projects in the 1990s with dedicated staff and volunteers made it what it is today, including ongoing maintenance and repairs by Djiru, community volunteers and the Girringun IPA Rangers after Cyclones Larry and Yasi.
Djiru has hosted a number of events at Clump Mountain and we base our PBC here for meetings, workshops, conferences, working bees, employment and training, cultural activities, community camping and family gatherings. Major events held here over the years include the WTMA/ARC Interim Negotiating Forum, a Mission Beach community festival involving South African full moon drumming, the Djiru native title authorisation meeting and consent determination in 2011, North Queensland Land Council’s 2014 Land Summit and AGM, Girringun Aboriginal Corporation’s 2016 TUMRA Sea Conference and IPA Rangers Indigenous workshop.
Ewamian Aboriginal Corporation
Ewamian Aboriginal Corporation (EAC) was established in 1994 in response to the need for a corporation that was able to apply for grants and undertake activities specifically for Ewamian People, whilst the Ewamian People worked towards having their native title rights and interests recognised.
The Ewamian People’s native title determination applications were successfully determined by the Federal Court of Australia at Georgetown on 26 November 2013. A process which has taken almost 20 years, through the dedication and commitment of not only the Ewamian People, the North Queensland Land Council and strong relationships held with their stakeholders and people of the Etheridge Shire.
The three main areas of service that are provided by EAC are:
- Managing Country through natural and cultural land management activities.
- Managing Culture through supporting Ewamian People in the protection and promotion of their cultural heritage.
- Promoting Community by providing a business to support the Ewamian People, by participating in and supporting economic development for Ewamian People and providing training and employment skills opportunities.
A significant achievement for Ewamian People has been the acquisition of Tallaroo Station near Georgetown. In 2012 EAC signed a three year lease with the Indigenous Land Corporation to manage Tallaroo as an Indigenous Protected Area to manage and protect the conservation and cultural values of this property, through weed, pest and fire and cultural management.
The Tallaroo Hot Springs are a very significant feature of Tallaroo. The Ewamian people are committed to protecting its natural and cultural value and hopefully one day restore the natural flows of the mounds and run successful tourism operations on Tallaroo. Tallaroo is managed by four Ewamian rangers who are funded by the Indigenous Land and Sea Ranger Program since 2009. EAC’s vision is to provide many employment and training opportunities for Ewamian People on Tallaroo in the future.
There are around 80 pastoral properties and an estimated 200 exploration and mining leases on Ewamian Country and EAC has the responsibility to manage relationships and administer and facilitate consultations, meetings and agreements with these stakeholders.
Article source: North Queensland Land Council Message Stick February 2015
Crocodiles in the High Court
This famous case, sometimes known as the “crocodile case” started with the prosecution of former Carpentaria Land Council Aboriginal Corporation Chief Executive Officer Murrandoo Yanner for the taking and killing of two crocodiles. He was charged with contravening the Queensland Fauna Conservation Act which provided that a person could not take fauna without being the holder of a particular licence. Murrandoo argued that he was exercising his rights as a Gangalidda person and according to traditional laws and custom and therefore did not need to hold a licence. The case went first to the Magistrate’s Court in Mount Isa, where the magistrate upheld Murrandoo’s defence, however the State government then appealed the decision to the Court of Appeal and this Court upheld the appeal. Murrandoo then took the case to the High Court.
The High Court agreed with Murrandoo in a 5:2 decision and the charges against Murrandoo had to be dropped.
The crocodile case remains a significant precedent in native title case law in Australia and, along with Mabo and Wik, it had much wider ramifications. It followed a series of cases involving the right of Indigenous people to hunt and gather their traditional foods. What many do not know, however is that the first case of this kind that came before the High Court was that of Walden v Hensler in 1987. In this case, the late Mr Herbert Walden, also a Gangalidda man, was charged with killing a turkey. Unfortunately, this was five years before the Mabo case and native title was not available to Mr Walden as a defence.
Recognition of native title rights to the sea
On 23 March 2004 Justice Cooper of the Federal Court delivered his judgment in the Wellesley Sea Claim. This was the first and only native title case run to trial by Carpentaria Land Council Aboriginal Corporation and involved an application by the Lardil, Yangkaal, Gangalidda and Kaiadilt Peoples. The claim was the first fully contested native title claim in Queensland since Mabo and only the second native title claim in Australia relating solely to the sea.
The claim ran for eight years before it was finally determined following a lengthy trial on Mornington Island. The Court recognised that non-exclusive native title rights and interests are held by the Lardil, Yangkaal, Kaiadilt and Gangalidda Peoples over the seas surrounding the Wellesley Islands and over part of the Albert River.
Many peoples gave evidence in support of the claim, including a number of important and respected elders who are no longer with us.
…In our belief, we’re born with the human spirit inside of us that connects with the spirit in creation, so we’re connected all the time, and spirit you can’t see, and it is not written law, but we know that that law is there, and I want to also say, while we’re on this subject, that spirit is - it could be in the Dreamtime; it is present today, and is a part of us for the future, from the cradle to the grave, so it doesn’t lose its value or the spirit doesn’t lose its power and connectedness with creation and people. Never. I mean, it is as strong today as it was in the Dreamtime.Wadjularbinna, Gangalidda elder, oral evidence given at the Wellesley Sea Claim hearing, Gununa, 2004.
The Waanyi High Court challenge
In June 1994, with the support of Carpentaria Land Council Aboriginal Corporation, the Waanyi People had lodged a native title claim over part of the Lawn Hill cattle station on which the Century Mine was planned.
The native title claim was not registered by the President of the National Native Title Tribunal (NNTT) on the basis of the extinguishing effect of prior pastoral leases granted in the area of the claim. The Waanyi People appealed that decision to the Federal Court on a number of grounds, including the procedural ground that it was arguable that native title co-existed with pastoral leases, whether or not those leases contained a reservation of Indigenous rights, and in those circumstances the NNTT did not have the power to reject the application. They lost their appeal by two to one.
Undeterred, the Waanyi People, then appealed the Federal Court’s decision to the High Court. Against the opposition of all State Governments, the Northern Territory Government, the Commonwealth and CRA, the Waanyi won. In February 1996, the High Court determined that the procedure adopted by the NNTT, which included receiving material and submissions from the State and CRA, was wrong and that the claim was arguable and should have been accepted.
Western Yalanji celebrate
Native Title rights over part of the Western Yalanji People’s country, which includes some of the oldest paintings in the world, have finally been recognised after more than ten years of negotiations.
Today was more than special, today I can hand on part of the responsibility to my daughters and to my grandchildren. This is about tomorrow, and this is about holding on to what we had from the past and to make things more stronger now because we’ve been operating from a weak situation for the last 200 years, and it’s been breaking our heart all along the way. But, we have shown now that there’s a power beyond a lot of things that weaken people. Qawanji It’s good to come to fruition now and it’s good that we’ve come to be recognised like that on country there. We can properly do some things now to establish some sort of good way towards helping our younger generation to improve in their ways and to come more to know about the culture. It’s important, I reckon, because we don’t want to lose that identity, we need to focus on that as well as other aspirations of the younger generations. Thomas Mitchell
Image source: North Queensland Land Council Message Stick December 2013
Momentous September day for Djiru
Not one, but two Native Title determinations were celebrated by Djiru people around Mission Beach, including Tully Gorge, Clump Mountain and Hull River National Parks, and the Walter Hill Range Conservation Park, back in September 2011.
Local elders Rae Kelly and Kathleen Edwards said they were happy after waiting for so long, both agreeing it was about the young ones. Mrs Kelly said:
All our children now that are here, every one of them all have something to be proud of. They own something at last, grandparents, all of the kids are here, all the clan. The old people finally got it back for them.
Leonard Andy has been a member of the working group since 1997 with a view to making a future for his people.
"I’ve been on the Working Group since 1997 even though we didn’t lodge the claim until 2002,” he said. "I’m looking at it like creating options for our future, for the future generations, what we do today isn’t really for us. It’s for the future generations and possibly, like, an economic future independent of the government. That’s what I’m thinking about".
Source: North Queensland Land Council Message Stick December 2011
Mr Pedro Stephen AM, Chairperson, Torres Strait Regional Authority
The Torres Strait Regional Authority (TSRA) Chairperson, Mr Pedro Stephen AM, has provided the following statement on the 25th anniversary of the High Court of Australia’s decision in Mabo and others v Queensland (No 2):
The Mabo decision began when a group of Meriam landowners: Eddie Koiki Mabo, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice, brought an action against the State of Queensland and the Commonwealth of Australia, in the High Court, claiming 'native title' to the Murray Islands in the Torres Strait.
On 3 June 1992 (now known as Mabo Day) the High Court handed down its decision, which recognised that Australia was occupied by Torres Strait Islander and Aboriginal peoples at the time of colonisation in 1788.
This overturned the doctrine of terra nullius that was proclaimed when Australia was colonised. The High Court declared that the:
Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.
Following the High Court’s decision in Mabo the Australian Parliament passed the Native Title Act 1993 (Cth), commencing on 1 January 1994.
Native title is the legal recognition that Torres Strait Islander and Aboriginal peoples have rights to, and interests in, certain land because of their traditional laws and customs.
Torres Strait Islander and Aboriginal peoples may be granted the right to live on the land, access the area for traditional purposes, visit and protect important places and sites, hunt, fish or gather traditional food or resources on the land, or teach laws and customs on the land.
In some cases, native title can include the right to own and occupy an area of land or water to the exclusion of all others.
Mabo Day is important to the Torres Strait Islander and Aboriginal people, as it symbolises the long struggle endured to gain recognition of their rights in their own country.
The Mabo Case has since been an inspiration for Indigenous people around the world, acting as a platform for other Torres Strait Islanders and Aboriginal peoples to secure native title rights and interests over their lands and seas.
Although the recognition of Native Title has brought about great gains, challenges still remain.
The native title process can be a long process for Traditional Owners to navigate through. A lot of time and resources must be spent by Native Title Representative Bodies and Service providers to prepare a successful claim.
Negotiations with the State and other stakeholders who have a direct interest within the claim areas is a tedious and at times, difficult process.
Other challenges are that land users and administrators do not understand native title and cultural heritage legislation, which can lengthen the claim process. In addition, overlapping claims and interests can be both time-consuming and complex.
The TSRA is the Native Title Representative Body for Traditional Owners in the Torres Strait region. Through its Representative Body functions, TSRA assists Traditional Owners with resolving native title claims, responding to and negotiating future act notifications, negotiating Indigenous Land Use Agreements, resolving land disputes, and also provides a range of other services.
The Native Title Office (NTO) is the administrative arm, which provides services to our region’s Traditional Owners and Prescribed Bodies Corporate (PBCs) in accordance with our Native Title Representative Body functions.
The Native Title Programme’s goal is to provide culturally appropriate support and services for the region’s Traditional Owners and PBCs. To achieve this, the NTO assists Traditional Owners in securing native title, negotiating future acts, and providing capacity-building support for PBCs.
Notable milestones for the TSRA in recent years include:
The State Government’s agreement, in December 2012, to transfer the Reserve Land that was held by the State to the Meriam people. Mer Gedkem Le (Torres Strait Islanders) Corporation RNTBC is now the organisation that represents the native title rights and interests for the native title holders, and is also the land administrator for Mer, Dauer and Waier.
In addition to this, the Badu Islanders challenged the right of the Torres Strait Island Regional Council to hold the Deed of Grant in Trust (DOGIT) for Badulgal.
Following this court case, the State transferred the DOGIT to Mura Badulgal (Torres Strait Islanders) Corporation RNTBC in February 2014. As such, the PBC represents the native title rights and interests of its Traditional Owners and acts as the land administrator for Badu.
The Torres Strait Sea Claim was successfully determined on 2 July 2010. In this determination, Justice Finn found that Torres Strait Islanders not only held the right to use the sea for traditional practices, but also that they had the right to take resources for any purposes.
The Government appealed this decision, and on appeal, the Full Federal Court found that the right for Torres Strait Islanders to take resources for any purpose had been extinguished. The TSRA received instructions from the Traditional Owners to appeal the Full Federal Court’s decision and took the matter to the High Court of Australia.
On 7 August 2013, the High Court overturned the Full Federal Court’s decision and found that Torres Strait Islanders do have a native title right to take resources from the sea for any purpose, including commercial and trading purposes.
The same year, TSRA legally represented the Kulkalgal people at the Consent Determination of Native Title. This granted the Kulkalgal people exclusive Native Title rights and interests over the uninhabited island of Zuizin in the Torres Strait.
The Zuizin determination marked the 22nd determination of Native Title in the Torres Strait region.
In June 2014, the TSRA held its 90th board meeting on Mer, the first to be held on an outer island in the organisation’s history. This coincided with Mabo Day celebrations.
The 25th anniversary of the Mabo decision signifies the journey of Torres Strait Islander and Aboriginal peoples to successfully secure native title over their land and seas.
The TSRA will continue to work with Traditional Owners, PBCs and other stakeholders to assist them in realising their aspirations when managing their native title lands and seas.